Legal Aid Case

Date24 Septiembre 1949
Docket NumberCase No. 132
CourtObsolete Court (Germany)
British Zone of Germany, Court of Appeal of Celle.
Case No. 132
Legal Aid Case.

War — Effects of Outbreak of — On Treaties — Non-Political Treaties — Legal Aid in Civil Proceedings — Reciprocity.

The facts.—The applicant, who was of Dutch nationality, intended to institute proceedings before a German court and applied for legal aid, to which, as a Dutch citizen, he would normally have been entitled by virtue of the Hague Convention on Procedure in Civil Cases, of July 17, 1905, to which both Germany and the Netherlands were parties.

Held: that the Convention was no longer in force between the two countries, it being immaterial whether it was to be regarded as having been cancelled by the outbreak of war or by the transfer to the Allied Powers of sovereign power over Germany. In consequence the applicant was not entitled to legal aid. The Court said :

“The applicant is entitled to be granted legal aid in accordance with section 114 of the Civil Procedure Act only if reciprocity is assured. Such reciprocity can be based either on a treaty or on the continued practice of the courts; neither can at present be said to exist in relation to the Netherlands. It is true that the Netherlands, like Germany, are Contracting Parties to the Hague Convention on Procedure in Civil Cases, of July 17, 1905, which in Article 20 provides for the grant to the citizens of every Contracting Party of the benefits of legal aid in the territory of every other Contracting Party. This Convention, however, is not at present in force between Germany and the Netherlands. We may leave undecided the question whether this cancellation occurred as a result of the outbreak of war between the two countries or as a result of the assumption by the Control Council of sovereign power over Germany which took place in connection with the capitulation of Germany. In any case the Hague Convention on Procedure in Civil Cases was cancelled by virtue of Article III (6) of Proclamation No. 2 of the Control Council, of September 20, 1945, which provides that the Allies would issue instructions concerning the cancellation...

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