Liability of State (Discrimination) Case (No 1)

CourtObsolete Court (Germany)
Date17 o 1935
Docket NumberCase No. 155
Germany, Supreme Court of the Reich (in Civil Matters).
Case No. 155
Liability of State (Discrimination) Case No. 1.

Treaties — Interpretation of — Miscellaneous — Meaning of “Free Access to Courts” and “Equality of Treatment” Clauses in Bipartite Treaties.

Aliens — Legal Position of — Discrimination —“Free Access to Courts” and “Equality of Treatment” Clauses in Bipartite Treaties — Meaning of.

The Facts.—The plaintiff, a Turkish national, sued the German Reich for an illegal act committed by a Prussian official. The claim was based on a Statute of the Reich of January 24, 1935,1 a decree of the Reich of May 3, 1935,2 and the Prussian Statute of August 1, 1909, on the responsibility of the State for acts of officials.3 According to Article 7 of the Prussian Statute, aliens may sue the State for damages caused by an illegal act of one of its officials on condition that reciprocity in the matter is assured by the national law of the plaintiff or by treaty, and if such reciprocity is recognised by an announcement in the Official Gazette. The plaintiff contended that the condition of reciprocity was fulfilled. He referred to Article 1 of the Treaty between Germany and Turkey on legal

relations in matters of Private and Commercial Law of May 28, 1929,1 as ratified on August 20, 1931.2 According to Article 1 of the Treaty the nationals of the two contracting parties resident in the territory of the other contracting party enjoy the same protection of their person and property as is accorded to the nationals of the State concerned. They also enjoy free access to the courts

Held: that reciprocity in the sense required by the Act of August 1, 1909, did not exist and that the claim must be rejected. With regard to the interpretation of Article 1 of the Treaty between Germany and Turkey, the Court said: “The obligation to grant nationals of the other contracting party facilities equal to those granted to the nationals of the State where they reside refers only to a formal reciprocity in the sense … that within the territory of one contracting party, and compared with the legal status of its own nationals, nationals of the other contracting party shall not be hampered by any disabilities. It does not refer to a material reciprocity in the sense that nationals of one contracting party are accorded the same rights in every respect within the territory of the other contracting party. This is, however, what is required by Article 7 of the Prussian Statute on...

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