Rape Prosecution Case

CourtCourt of Appeal of Celle (Germany)
Federal Republic of Germany, Superior Provincial Court (Oberlandesgericht) of Celle
Rape Prosecution Case

Jurisdiction Territorial Foreign armed forces Criminal jurisdiction of receiving State Acts of United States serviceman unconnected with official duties Concurrent jurisdiction of sending and receiving States NATO Status of Forces Agreement, 1951, Article VII(3) Waiver of jurisdiction by receiving State Article VII(8) of Agreement Principle of ne bis in idem Applicability Whether decision to stay proceedings taken by the United States military authorities constitutes a bar to further proceedings in the Federal Republic of Germany The law of the Federal Republic of Germany

Summary: The facts:The Public Prosecutor in the Federal Republic of Germany refused to prosecute an American soldier, serving as a member of the United States forces stationed in the Federal Republic under the NATO Agreements, who was accused of rape. The alleged victim's request for a decision by a court was rejected and she appealed.

Held:The appeal was dismissed.

(1) Pursuant to Article VII(3) of the NATO Status of Forces Agreement, members of the United States forces stationed in the Federal Republic were subject, in the case of rape, to the concurrent jurisdiction of the sending and receiving States. The primary right to exercise jurisdiction was vested in the Federal Republic as the receiving State. The Federal Republic had, however, made a general waiver of this right and had not, in this case, exercised its right to withdraw that waiver. In these circumstances the receiving State could prosecute only if the military authorities of the sending State did not exercise their right of jurisdiction, unless the criminal process had been exhausted by a decision of the sending State (Article VII(8) of the Status of Forces Agreement) (pp. 5378).

(2) In the present case, the legal head of the United States military authorities had taken a decision to stay proceedings against the defendant. This brought into operation the principle of ne bis in idem since such a decision was equivalent to an acquittal under Article VII(8) and therefore acted as a bar to criminal proceedings before the courts of the Federal Republic p. 538).

The following is the text of the judgment of the Court:

In complaint enforcement proceedings, the Public Prosecutor refused to prosecute an American soldier for rape. The victim's request for a decision by a court was unsuccessful.

Under Section 172 (ii) and (iii) of...

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