Recidivist (American Military Tribunal) Case

CourtCourt of Appeal of Frankfurt (Germany)
Docket NumberCase No. 189
German Federal Republic, Court of Appeal of Frankfort.
Case No. 189
Recidivist (American Military Tribunal) Case.

Belligerent Occupation — Judicial Powers of Occupant — Tribunals of Occupant — Whether Foreign or Municipal Tribunals — Conviction for Criminal Offence — Whether Conviction Renders Convicted Person Liable to Punishment as Recidivist in Subsequent Proceedings before Municipal Court — The Law of Germany.

The Facts.—The appellant, on more than one occasion, was convicted of larceny within the meaning of the German Penal Code, in proceedings before an American military tribunal exercising jurisdiction in occupied Germany, He was subsequently charged with a further offence of larceny before a German court. The prosecution contended that the convictions obtained against him before the American tribunal constituted previous convictions “in Germany” (im Inland) within the meaning of s. 244 (1) of the German Penal Code, with the result that in accordance with that section the appellant was liable to punishment as a recidivist. On behalf of the appellant it was contended that the convictions obtained against him before the American tribunal were not convictions “in Germany”, and that he was liable only to punishment as a first offender.

Held: that the military tribunals of the Occupant, more especially when applying German substantive law, were German courts for the purpose of determining whether a conviction obtained before them was a conviction obtained in Germany, and that accordingly the appellant was liable to be punished as a recidivist.1 The Court said:

“The Courts of Appeal of Hamm and Celle2 regard the courts of the Occupying Power, without more, as foreign courts. As against that we must, however, stress the fact that as from 1945 onwards the Occupying Power existed not only side by side with German State authority, but was immediately substituted for the latter. This unique situation undoubtedly resulted in the Occupying Power exercising German sovereignty to the fullest extent. After 1945, therefore, German sovereignty was derivative quoad the Occupying Power. The latter was entitled, without any further requirements, to transfer to its own jurisdiction any proceedings pending before German courts. The conclusion to be drawn from these factual circumstances is that the judgments of the Occupying Power cannot

be regarded as foreign judgments, more especially in cases where, as happened in the present case, the military tribunals have applied...

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