Security for Costs (Spanish Republican Government) Case
| Court | Court of Appeal of Frankfurt (Germany) |
| Docket Number | Case No. 28 |
| Date | 18 n 1938 |
Treaties — Operation of — Question of Enforceability in the Territory of the Other Contracting Party.
Recognition — Of Governments — Position of (Former) Legitimate Government after Recognition of Insurgents as a Government — Application of Conventions to Territory under the (Former) Legitimate Government — The Spanish Republican Government in 1936–1939 — Legal Status of — De jure Recognition of the Government of General Franco — Operation of Treaties — Question of Enforceability in the Territory of the Other Contracting Party.
The Facts.—The plaintiff, who was either a Belgian or a Spanish national, brought an action in a German court. He claimed to be exempted from furnishing security for costs by virtue of Article 17 of The Hague Convention on Civil Procedure of July 17, 1905. The Civil War in Spain broke out in July, 1936. On November 18, 1936, two and a half years before the termination of the Civil War, Germany recognized the insurgent government of General Franco as the de jure government of Spain. Apparently it was contended: (a) that, in so far as the plaintiff was resident in the territory under the authority of the opponents of the Franco Government, the Convention was not applicable seeing that they were not recognized by Germany; (b) that the Convention was not applicable seeing that any subsequent order of the Court in the matter of costs was not likely to be enforced in the territory under the occupation of the non-recognized authority.
Held: that the plaintiff's claim must succeed. Both Belgium and Spain as well as Germany were parties to the Convention. With regard to Spain the Court pointed out that any steps taken by the opponents of the recognized Franco Government with regard to the Convention were irrelevant. The Court said: “The Convention applies also with regard to the part of Spanish territory occupied by the Bolshevists [i.e. by the government of Spain as it existed at the beginning of the Civil War]. For the various governments of Red Spain1 are not recognised by Germany, which recognises the national government of General Franco as the only lawful government of Spain. Accordingly, the Red Spanish authority must...
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