Re Kampfe

Docket NumberCase No. 204
Date02 Septiembre 1936
CourtObsolete Court (Germany)
Germany, Supreme Court of the Reich (in Criminal Matters).
Case No. 204
In re Kampfe.

Treaties — Parts of — The Preamble.

Treaties — Operation of — Assurance of Reciprocity — Necessity of Specific Provisions — Authority of the Preamble — Judicial Assistance.

The Facts.—The examining magistrate of Cracow (Poland) requested a German court to obtain a statement from X as a witness in criminal proceedings pending before the Court of Cracow. The German Ministry of Justice asked for an assurance on the part of the Polish government that in the converse case similar facilities would be granted in Poland, i.e. that reciprocity was guaranteed in accordance with the requirements of Article 41(1) of the German Extradition Act of December 23, 1929. The Polish Ministry of Justice refused to give this assurance and referred to the Preamble to the German-Polish Treaty on Judicial Assistance of December 16, 1925. The Preamble stated:

“The German and the Polish Governments are in agreement that judicial assistance shall be granted on the basis of reciprocity and in accordance with the attached provisions until a Treaty of Extradition has been concluded.”

Article 41(1) of the German Extradition Act provided as follows: “Judicial Assistance in matters of Criminal Law … is admissible, provided … reciprocity is guaranteed”.

The Chief Public Prosecutor of the Reich moved for a declaration as to whether the provision of the German-Polish Treaty fulfilled the requirements of reciprocity as demanded by German law.

Held: that the German-Polish Treaty did not fulfil the requirements of reciprocity as demanded by Article 41(1) of the German Extradition Act. The Court found that the Treaty provided under several heads for the procedure in matters of mutual judicial assistance. However, apart from provisions in respect of an exchange of information, it did not contain any rules regarding the conditions and the extent of the duty to render judicial assistance.

The Preamble.—The Court declined to adhere to the view of the Chief Prosecutor of the Reich to the effect that the Preamble to the Treaty did not establish any legal obligations between the contracting parties. “If two States declare by means of identical statements that they are in mutual agreement and that they...

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