General List No. 63

Advisory Opinion No. 27

4 December 1935

 

PERMANENT COURT OF INTERNATIONAL JUSTICE

Third-Fifth (Extraordinary) Session

 

Consistency of certain Danzig legislative decrees with the constitution of the free city

 

Advisory Opinion

 
BEFORE: President: Sir Cecil Hurst
Vice-President: Guerrero
Judges: Baron Rolin-Jaequemyns, Count Rostworowski, Fromageot, De Bustamante, Altamira, Anzilotti, Urrutia, Jhr. Van Eysinga, Wang, Nagaoka,
    
Perm. Link: http://www.worldcourts.com/pcij/eng/decisions/1935.12.04_danzig.htm
  
Citation: Consistency of Certain Danzig Legislative Decrees with Constitution of Free City, Advisory Opinion, 1935 P.C.I.J. (ser. A/B) No. 65 (Dec. 4)
Publication: Publications of the Permanent Court of International Justice Series A./B. No. 65; Collection of Judgments, Orders and Advisory Opinions A.W. Sijthoff’s Publishing Company, Leyden, 1925
  
 

  

[p41] The Court, composed as above, gives the following opinion:

[1] On September 23rd, 1935, the Council of the League of Nations adopted the following Resolution:

"The Council of the League of Nations,
Having considered the communication from the High Commissioner of September 7th, 1935, by which the High Commissioner transmitted to the Council:
(a) a petition dated September 4th, 1935, and signed on behalf of the German National members of the Danzig Popular Assembly, the Social-Democrat members of the Popular Assembly, and the Centre Party and the Centre Party members of the Popular Assembly, which protests against two legislative decrees of August 29th, 1935, amending the Danzig Penal Code and the Danzig Code of Penal Procedure;
(b) the text of the said decrees;
(c) a communication dated September 7th, 1935, from the Senate of the Free City of Danzig containing observations on the said petition,
Requests the Permanent Court of International Justice to give an advisory opinion on the question whether the said decrees are consistent with the Constitution of Danzig, or, on the contrary, violate any of the provisions or principles of that Constitution.
The Council requests that, if possible, the Court will give its opinion in time to enable it to be considered by the Council at its session of January 1936.
The Secretary-General is authorized to submit this request to the Court, together with all the relevant documents, to afford the necessary assistance in the examination of the question and if necessary to arrange to be represented before the Court."

[2] In accordance with this Resolution, the Secretary-General of the League of Nations, on September 27th, 1935, transmitted to the Court a Request for an advisory opinion in the following terms:

" To the Permanent Court of International Justice.
The Secretary-General of the League of Nations,
in pursuance of the Council Resolution of September 23rd, 1935, and in virtue of the authorization given by the Council,
has the honour to submit to the Permanent Court of International Justice an Application requesting the Court, in accordance with Article 14 of the Covenant, to give an advisory opinion to the Council on the question which is referred to the Court by the Resolution of September 23rd, 1935 (see attached text).
The Secretary-General will be prepared to furnish any assistance which the Court may require in the examination of this matter, and will, if necessary, arrange to be represented before the Court." [p43]

[3] The Request was registered on September 30th, 1935, in the Registry of the Court. To the Request were appended a number of documents [FN1] relating to the petition of September 4th, 1935, referred to in the Council Resolution of September 23rd, and to the position taken up by the authorities of the League in regard to that petition.

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[FN1] See list in the Annex.
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[4] In conformity with Article 73, No. 1, paragraph 1, of the Rules, the Request was communicated to Members of the League (through the Secretary-General of the League of Nations) and to States entitled to appear before the Court. Furthermore, the Registrar, by a note dated October 4th, 1935, sent to the Free City of Danzig, which was regarded by the President - the Court not being in session - as a State admitted to appear before the Court and likely to be able to furnish information on the question referred to the Court for advisory opinion, the special and direct communication mentioned in Article 73, No. 1, paragraph 2, of the Rules.

[5] By an Order made on October 4th, 1935, the President of the Court - the latter not being in session - fixed October 22nd, 1935, as the date by which a written statement might be filed on behalf of the Free City. On receipt of a request for an extension from the Senate of the Free City, this time-limit was extended until October 26th by an Order made on October 10th, 1935. Furthermore, on October 14th, 1935, the Registrar wrote to the Secretary-General of the League of Nations, in accordance with the instructions of the President of the Court, requesting him to inform the authors of the petition of September 4th, 1935, through the appropriate channel, that if they desired to supplement the statement contained in the petition, the Court would be prepared to receive an explanatory note from them, provided that it was filed with the Registry not later than October 26th, 1935.

[6] Before the expiry of the time-limits thus fixed, the Court received a written statement submitted on behalf of the Senate of the Free City and two documents sent by the petitioners with the request that their contents should be regarded and treated as constituting the explanatory note mentioned in the letter of the Registrar to the Secretary-General dated October 14th, 1935.

[7] On October 4th, 1935, the Senate of the Free City had been informed that the Court would be prepared to hear at a public sitting an oral statement presented on its behalf by a duly authorized representative. The Senate subsequently appointed as Agent Professor Dr. Graf Gleispach and as Counsel Professor Dr. Grimm, and the Court heard the statements presented by them at public sittings held on October 30th and 31st and [p44] November 1st. At the conclusion of the sitting on November 1st, the President declared the hearings closed, subject to the right of the Court to ask the representatives of the Free City for further information or explanations or to procure them by other means at its disposal.

[8] By a letter of October 5th, 1935, the Senate of the Free City of Danzig had requested the Court to authorize it to appoint a judge ad hoc to sit in the case. At the invitation of the Court, the arguments in support of this request were fully expounded by the Agent for the Free City at the hearing on October 30th. On the following day, the President of the Court announced at the hearing that, after deliberation, the Court had decided that there was no ground for granting the request made on behalf of the Free City and that this decision would be embodied in an Order which would be drawn up later. The text of this Order, which is dated October 31st, 1935, is annexed to the present Advisory Opinion [FN1].

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[FN1] See p. 32.
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[9] In addition to the written and oral statements above mentioned, and the documents transmitted by the Secretariat of the League of Nations, the Court has had before it a number of documents transmitted by the Free City or collected by the Registry [FN2].

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[FN2] ,, list in the Annex
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[10] The submission of the case being in all respects regular, these are the circumstances in which the Court is now called upon to give its opinion.

***

[11] On August 29th, 1935, the Senate of the Free City adopted two decrees, which were promulgated on August 31st and came into force on September 1st, 1935; one of these decrees related to the criminal law and the other to the law of criminal procedure and the organization of the courts of the Free City.

[12] The first Article of the decree "amending certain provisions of the Penal Code" [FN3] may be rendered in English as follows: [p45]

"Article I. - Creation of law by the application of penal laws by analogy.
Articles 2 and 2 a of the Penal Code are amended as follows:
Article 2. - Any person who commits an act which the law declares to be punishable or which is deserving of penalty according to the fundamental conceptions of a penal law and sound popular feeling, shall be punished. If there is no penal law directly covering an act, it shall be punished under the law of which the fundamental conception applies most nearly to the said act.
Article 2 a. - …………………………..”

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[FN3] „Artikel I. - Rechtsschöpfung (durch entsprechende Anwendung der Strafgesetze.
„Die §§2 und 2 a des Strafgesetzbuchs erhalten folgende Fassung:
,,§ 2. - Bestraft wird, wer eine Tat begeht, die das Gesetz für strafbar erklart oder die nach dem Grundgedanken eines Strafgesetzes und nach gesun-dem Volksempfinden Bestrafung verdient. Findet auf die Tat kein bestimmtes Strafgesetz unmittelbar Anwendung, so wird die Tat nach dem Gesetz bestraft, dessen Grundgedanke auf sie am besten zutrifft
„2a. - ..................
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[13] It is unnecessary to set out here the other clauses contained in this decree.

[14] Prior to September 1st, 1935, Article 2, paragraph 1, of the Penal Code applicable at Danzig was couched [FN1] in terms which may be rendered in English as follows:

"Article 2. - An act is only punishable if the penalty applicable to it has been prescribed by a law in force before the commission of the act."

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[FN1] ,,§ 2. - Eine Handlung kann nur dann mit einer Strafe belegt werden wenn diese Strafe gesetzlich bestimmt war, bevor die Handlung begangen wurde."
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[15] The decree "amending certain provisions of the Code of Criminal Procedure and of the law concerning the organization of the courts" contains an Article I as to a "Wider latitude accorded to the judge" ; Section I of this Article, which deals with the "Creation of law by the application of penal laws by analogy", contains a paragraph (a) [FN2] which may be rendered in English as follows:

"(a) The following provisions shall be inserted in the Code of Criminal Procedure and shall constitute Article 170 a and Article 267 a. [p46]
Article 170 a. - If an act which, according to sound popular feeling, is deserving of penalty is not made punishable by law, the Public Prosecutor shall consider whether the fundamental conception of any penal law covers the said act and whether it is possible to cause justice to prevail by the application of such law by analogy (Art. 2 of the Penal Code).
Article 267 a. - If, in the course of the trial, it appears that the accused has committed an act which, according to sound popular feeling, is deserving of penalty but which is not made punishable by law, the Court must satisfy itself that the fundamental conception of a penal law applies to the act and that it is possible to cause justice to prevail by the application of such law by analogy (Penal Code, Art. 2).
Article 265, paragraph 1, shall apply mutatis mutandis."

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[FN2] ,,a) In die Strafprozessordnung werden als § 170 a und als § 267 a folgende Vorschriften eingefügt :
,,§ 170 a. - fst eine Tat, die nach gesundem Volksempfinden Bestrafung verdient, im Gesetz nicht für strafbar erklärt, so hat die Staatsanwaltschaft zu prüfen, ob auf die Tat der Grundgedanke eines Strafgesetzes zutrifft und ob durch entsprechende Anwendung dieses Strafgesetzes der Gerechtigkeit zum Siege verholfen werden kann (§ 2 des Strafgesetzbuchs).
,,§ 267 a - Ergibt die Hauptverhandlung, dass der Angeklagte eine Tat begangen hat, die nach gesundem Volksempfinden Bestrafung verdient, die aber im Gesetz nicht für strafbar erklärt ist, so hat das Gericht zu prüfen, ob auf die Tat der Grundgedanke eines Strafgesetzes zutrifft und ob durch entsprechende Anwendung dieses Strafgesetzes der Gerechtigkeit zum Siege verholfen werden kann (§ 2 des Strafgesetzbuchs). ,.
§ 265 Abs. I gilt entsprechend."
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[16] Together with the decrees of August 29th, 1935, an ordinance was promulgated amending the General Regulations of the Senate dated October 11th, 1929, concerning the communication ex officio of judgments in criminal cases; by this ordinance, a new clause [FN1]
was added under No. 9 a to these General Regulations ; this clause may be rendered in English as follows:

"Judgments which inflict a penalty on the ground that, according to the fundamental conception of some penal clause and according to sound popular feeling, the act deserves punishment (Penal Code, Art. 2, new version); judgments in which, contrary to the submissions of the Public Prosecutor, conviction in such circumstances has been refused, and judgments in which recourse has been had to conviction under alternative charges (Penal Code, Art. 2 b) shall be communicated in duplicate (with a statement of the reasons) to the Department of Justice of the Senate."

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[FN1] ,,§ 9 a. - Urteile, in denen Bestrafung erfolgt ist, weil die Tat nach dem Grundgedanken eines Strafgesetzes und nach gesundem Volksempfinden Bestrafung verdient (§ 2 St. G. B. n. F.) oder in denen eine solche Bestrafung entgegen dem Antrage der Staatsamvaltschaft abgelehnt ist, sowie Urteile, in denen eine Wahlfeststellung getroffen ist (§ 2 b St. G. В.), sind der Justizabteilung des Senats in 2 Stücken einzureichen (mit Gründen)."
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[17] The above-mentioned decrees of August 29th, 1935, were issued under the "Law for the Relief of the Distress of the Population and the State" of June 24th, 1933; this law, which was passed by the Senate and by the Diet of the Free City, was promulgated on June 26th, 1933. The decrees of August 29th, 1935, cite in their preambles certain clauses of this law [FN2], which is usually described as an "Enabling Law"; these clauses may be rendered in English as follows: [p47]

"Article 1. - The Senate of the Free City is empowered to take measures (decrees) having force of law and which the Diet hereby approves in advance, in regard to the matters set out below, within the frame of the Constitution and within the limits laid down in Article 2 of this law.
………………………………………………………………….
9. Measures designed to enhance public security and order.
………………………………………………
22. The modification of the judicial system, particularly as regards the organization and jurisdiction of the Courts, and likewise of the provisions relating to the presence on the Bench of lay assessors.
…………………………………………………………………….
25. The modification of civil and criminal procedure and of the law of bankruptcy and compositions including the provisions regarding legal costs and fees (also those of barristers and solicitors) as well as the whole of the law relating to executions and liens.
……………………………………………………. [p48]
28. The reform of the penal law.
Article 2. - The Senate may only employ the powers conferred by Article 1 for the following purposes:
(a) the maintenance of order in the finances of the State, the communes, the communal organizations and public bodies;
(b) the relief of financial, economic, social, cultural or political emergencies;
(c) the effecting of economies;
(d) the adjustment of the law to that in force in neighbouring States;
(e) the maintenance and enhancement of public order and security;
(f) the simplification and development of the administrative and judicial systems; (g) the relief of unemployment.
Within the limits thus defined, the provision of penalties is authorized."

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[FN2] ,,§ 1. - Der Senat der Freien Stadt Danzig wird ermächtigt, auf den nachstehend angeführten Gebieten im Rahmen der Verfassung und innerhalb der sich aus § 2 dieses Gesetzes ergebenden Grenzen Massnahmen mit Gesetzeskraft zu erlassen, denen der Volkstag hiermit zustimmt.
„9. Massnahmen zur Erhöhung der öffentlichen Sicherheit und Ordnung.
„..........................................
„22. Änderung der Gerichtsverfassung, insbesondere bezüglich der Organisation und Zuständigkeit der Gerichte und der Bestimmungen über die Besetzung rnit Laienbeisitzern.
„...........................................
„25. Änderung des Zivil- und Strafprozesses sowie des Konkurs- und Vergleichsrechts einschliesslich der kosten- und gebührenrechtlichen Vorschriften (auch für Rechtsanwälte und Notare) und des gesamten Vollstreckungs- und Pfändungsrechts.
„...........................................
„28. Reform des Strafrechts.
„...........................................
,,§ 2. - Der Senat darf von der im § 1 bezeichneten Ermächtigung nur Gebrauch machen zum Zweck
,,a) der Aufrechterhaltung der Ordnung der Finanzen des Staates, der Gemeinden und der Gemeindeverbände sowie der öffentlichrechtlichen Verbände,
,,b) der Behebung finanzieller, wirtschaftlicher, sozialer, kultureller Oder politischer Notstande,
,,c) der Erzielung von Ersparnissen,
,,d) der Anpassung an die rechtliche Regelung in den Nachbarstaaten,
,,e) der Aufrechterhaltung und des Ausbaues der öffentlichen Ordnung und Sicherheit,
,,f) der Vereinfachung und Fortentwickelung der Verwaltung und der Rechtspflege,
,,g) der Behebung der Arbeitslosigkeit.
„In diesem Rahmen sind Strafandrohungen zulässig."
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[18] Prior to June 24th, 1933, laws delegating certain legislative powers to the Senate covering various specified subjects and expressly described as "Enabling Laws" had already been promulgated, namely the laws of November 29th, 1926, January 23rd, 1931, June 30th, 1931, September 1st, 1931, and June 28th, 1932; laws had already been published in 1921 and 1923 empowering the Senate to legislate by decree in regard to certain matters.

[19] On September 4th, 1935, the National German, the Centre and the Social-Democrat Parties at Danzig presented a petition to the High Commissioner of the League of Nations contending that the amendments made in the Penal Code and Code of Criminal Procedure under the decrees and ordinance of August 29th, 1935, fundamentally altered the whole system of the administration of justice in criminal cases and opened the doors wide to arbitrary decisions; the introduction of these amendments constituted, in the submission of the petitioners, a violation both of Article 73 and of Article 74 of the Constitution of the Free City. The petition concluded with a request to the High Commissioner to support the efforts of the petitioners "for the maintenance of legal and constitutional conditions in the Free City".

[20] The High Commissioner, in a letter dated September 5th, 1935, invited the Senate as soon as possible to present any observations which it might wish to make in regard to the petition.

[21] On September 7th, 1935, the High Commissioner sent to the Council of the League of Nations the text of the decrees and the ordinance of August 29th, 1935, together with the petition and the observations of the Danzig Senate. [p49]

[22] The Council considered the question on September 23rd, 1935, together with two other questions affecting the Free City and concerning the consistency with the Constitution of Danzig of certain decrees issued under the above-mentioned law of June 24th, 1933, and of certain administrative measures. These latter questions were settled by the Council, but as regards the question raised in connection with the promulgation of the decrees amending the Danzig Penal Law, the Council had before it a report by the representative of the United Kingdom expressing doubt in two respects as to the constitutionality of the decrees. These doubts concerned, first the question whether the law of June 24th, 1933, really conferred on the Senate power to undertake the reform of the penal law contemplated by the decrees, and, secondly, the question of the consistency of the contents of the decrees with those clauses of the Constitution conferring fundamental rights upon citizens of the Free City. The Rapporteur proposed, and the Council adopted, the Resolution reproduced above, to the effect that the Court should be asked to give an advisory opinion.

***

[23] The Constitution of the Free City occupies a special position in regard to the League of Nations. In the first place, it was drawn up by duly appointed representatives of the Free City in agreement with a High Commissioner appointed by the League of Nations, as provided in Article 103 of the Treaty of Versailles of June 28th, 1919. Secondly, it was placed under the guarantee of the League, as provided in the same Article of that Treaty. This guarantee implies, in the words of the report submitted to the Council on November 17th, 1920, by the Japanese representative, Viscount Ishii: "(1) that the Constitution will have to obtain the approval of the League of Nations; (2) that the Constitution can only be changed with the permission of the League of Nations, and (3) that the constitutional life of the Free City of Danzig must always be in accordance with the terms of this Constitution".

[24] In this connection, the Court may recall the view which it has already expressed in its Advisory Opinion of February 4th, 1932, concerning the treatment of Polish nationals in the territory of Danzig:

"The League, as guarantor of the Constitution, is therefore concerned not merely with the text of the Constitution, but also with the proper application of it. It was at the request of the League that an article was inserted in the definitive text of the Constitution as Article 42, reading:
[p50] 'The Senate of the Free City shall furnish to the League of Nations at any time upon the request of the latter, official information regarding the public affairs of the Free City.'
The object of this provision is obvious. It is to enable the League to exercise its rights and fulfil its duties concerning inter alia the actual application of the Constitution.
From what has been said above, it follows that the League of Nations, as guarantor of the Constitution of the Free City, has the right - which, in practice, it exercises through the Council - as well as the duty, to intervene in the event of an erroneous application by Danzig of its Constitution."

[25] It is clear that, though the interpretation of the Danzig Constitution is primarily an internal question of the Free City, it may involve the guarantee of the League of Nations as interpreted by the Council and by the Court. It is also clear that, when the constitutionality of decrees issued by the Senate is challenged, this may raise questions the solution of which depends upon the interpretation of the Constitution. It follows that a petition like the petition submitted to the High Commissioner on September 4th, 1935, by certain political parties in Danzig necessarily involves the League's guarantee of the Danzig Constitution. This suffices to establish the international element in the problem raised by the petition which led up to the Council's Resolution asking for an advisory opinion. This element is not excluded by the fact that, in order to give the opinion for which it is asked, the Court will have to examine municipal legislation of the Free City, including the Danzig Constitution.

*

[26] The question submitted to the Court is: "whether the said decrees [i.e. the decrees of August 29th, 1935] are consistent with the Constitution of Danzig, or, on the contrary, violate any of the provisions or principles of that Constitution".

[27] This question must be answered on the basis of a comparison between the text of the decrees, on the one hand, and the text of the Constitution and the principles on which it is founded and which are expressed in its various provisions, on the other hand. What the Court has to examine is whether the decrees, as they stand, are necessarily in conflict with the Constitution so that the very enactment of the decrees constituted a violation thereof, and that they cannot be applied without violating the letter or the spirit of the Constitution. [p51]

[28] As regards the decrees, it should be observed at the outset that the first contains twelve articles relating to divers matters of substantive criminal law, and the second six articles concerning criminal procedure and the judicial organization of the Free City. From the documents before the Court it is manifest that in the present case only certain provisions of the two decrees concerning the criminal character of an act are in question, namely, Article I, paragraph I, of the first decree, which modifies Article 2 of the Penal Code, and Article 1 of the second decree, which introduces new Articles 170 a and 267 a into the Code of Penal Procedure, The relevant texts have been reproduced above. The Court will therefore confine itself to an examination of these provisions, leaving aside the remainder of the decrees.

*

[29] Before proceeding to the examination of the decrees from the constitutional point of view, it may be well to note the changes which they have introduced in the criminal law of Danzig.

[30] The Penal Code in force in Danzig prior to the promulgation of the decrees, in its Article 2, paragraph 1, provided: "An act is only punishable if the penalty applicable to it was already prescribed by a law in force before the commission of the act." This provision gives expression to the well-known twofold maxim: Nulum crimen sine lege, and NullaLpœna sine lege. The law alone determines and defines an offence. The law alone decrees the penalty. A penalty cannot be inflicted in a given case if it is not decreed by the law in respect of that case. A penalty decreed by the law for a particular case cannot be inflicted in another case. In other words, criminal laws may not be applied by analogy.

[31] The first decree modifying the Penal Code lays down the rule that an act is punishable:

(1) where it is declared by law to be punishable, and
(2) where, according to the fundamental idea of a penal law and according to sound popular feeling, it deserves punishment. Where there is no particular penal law applicable to the act, it shall be punished in virtue of the law whose fundamental conception applies most nearly.

[32] No. 1 requires no comment. No. 2 is an innovation which deserves careful examination. Where there is no legal provision expressly applicable, a person may, according to the new penal provision, be punished provided that two conditions are fulfilled: (a) the act must deserve punishment according to the fundamental idea of a penal law; and (b) the act must deserve punishment according to sound popular feeling. [p52]

[33] The procedure for applying this rule is laid down in the second decree, in which the two conditions are prescribed in the reverse order. That is to say, the Public Prosecutor (Art. 170 a) and the tribunal (Art. 267 a), in the case of an act not declared punishable by law, must first apply the criterion of sound popular feeling, and, if it is found that the act deserves punishment, must then examine whether the fundamental idea of a penal law also requires that it should be punished.

[34] The object of these new provisions is stated to be to enable the judge to create law to fill up gaps in the penal legislation. This may be seen from the title of Article I of the first decree: "Creation of law [Rechtsschöpfung] by the application of penal laws by analogy", and of Article I of the second decree "Wider latitude accorded to judges. I. Creation of law Rechtsschöpfung] by the application of penal laws by analogy."

[35] The Agent for the Free City contends that, according to the new conception of penal law, real justice will take the place of formal justice, and that henceforth the rule will be Nullum crimen sine pœna instead of Nullum crimen sine lege and Nulla pœœna sine lege. Detailed explanations have been given on behalf of the Senate of the Free City concerning the advantages of the new penological idea over the old. With this the Court is not concerned. The sole question for it is whether the two decrees violate any of the provisions or principles of the Constitution.

[36] Under the two decrees a person may be prosecuted and punished not only in virtue of an express provision of the law, as heretofore, but also in accordance with the fundamental idea of a law and in accordance with sound popular feeling.

[37] Whatever may be the relation between the two elements whether it be, as suggested by the wording of the first decree, that the act to be punished must in any case fall within the fundamental idea of the law and yet escape punishment unless condemned by sound popular feeling, or whether it be, as suggested by the wording of the second decree, that attention is first to be paid to the question of what is condemned by sound popular feeling but no prosecution initiated or punishment imposed unless the act falls within the fundamental idea of some penal law - it is clear that the decision whether an act does or does not fall within the fundamental idea of a penal law, and also whether or not that act is condemned by sound popular feeling, is left to the individual judge or to the Public Prosecutor to determine. It is not a question of applying the text of the law itself - which presumably will be in terms equally clear both to the judge and to the person who is accused. It is a question of applying what the judge (or the [p53] Public Prosecutor) believes to be in accordance with the fundamental idea of the law, and what the judge (or the [p53] Public Prosecutor) believes to be condemned by sound popular feeling. A judge's belief as to what was the intention which underlay a law is essentially a matter of individual appreciation of the facts, so is his opinion as to what is condemned by sound popular feeling. Instead of applying a penal law equally clear to both the judge and the party accused, as was the case under the criminal law previously in force at Danzig, there is the possibility under the new decrees that a man may find himself placed on trial and punished for an act which the law did not enable him to know was an offence, because its criminality depends entirely upon the appreciation of the situation by the Public Prosecutor and by the judge. Accordingly, a system in which the criminal character of an act and the penalty attached to it will be known to the judge alone replaces a system in which this knowledge was equally open to both the judge and the accused.

[38] Nor should it be overlooked that an individual opinion as to what was the intention which underlay a law, or an individual opinion as to what is condemned by sound popular feeling, will vary from man to man. Sound popular feeling is a very elusive standard. It was defined by the Agent of the Free City as "une conviction correspondant aux strictes exigences de la morale". This definition covers the whole extra-legal field of what is right and what is wrong according to one's ethical code or religious sentiments. Hence it follows that sound popular feeling may mean different rules of conduct in the minds of those who are to act in accordance therewith. It is for this reason that legislation is necessary in order to lay down the precise limits between morale and law. An alleged test of sound popular feeling, even when coupled with the condition providing for the application of the fundamental idea of a penal law, could not afford to individuals any sufficient indication of the limits beyond which their acts are punishable.

*

[39] The question put by the Council being whether the decrees of August 29th, 1935, are consistent with the Constitution of Danzig or, on the contrary, violate any of the provisions or principles of that Constitution, it should in the first place be observed that any inconsistency between the decrees and the Constitution may be due to one or more of the three following causes : the terms of the decrees may be inconsistent with the articles of the Constitution or with its principles; the decrees may overstep the limits of the powers given to the Senate [p54] by the law of June 24th, 1933; and lastly that law may itself be contrary to the Constitution.

[40] The Court will not consider this last-mentioned point, as no question has been specifically put to it on the subject. As regards the question whether the decrees are covered by the law of June 24th, 1933, that question would only arise if the Court came to the conclusion that the terms of the decrees do not violate any clause or principle of the Constitution; for, if any article or principle of the Constitution were violated by the contents of the decrees, that would suffice to show that the latter are not consistent with it.

[41] For this reason, the Court will consider the question before it from the point of view of the contents of the decrees.

[42] Certain principles emerge from the articles of the Constitution of Danzig. In the first place it is to be observed that the Constitution endows the Free City with a form of government under which all organs of the State are bound to keep within the confines of the law (Rechtsstaat, State governed by the rule of law). In the second place, it is to be noted that the Constitution consists of two parts, the first of which, entitled "Organization of the State" (Aufbau des Staates), concerns the structure of the State, whilst the second lays down inter alia a series of "Fundamental rights and duties" (Grundrechte und Grundpflichten). The free enjoyment of these rights, within the bounds of the law, constitutes one of the principles of the Constitution of the Free City.

[43] The principle according to which the constitutional system of the Free City corresponds to that of a State governed by the rule of law (Rechtsstaat) is shown in the first place by the manner in which the Senate must perform its duties. Though it conducts the administration of the State, and issues regulations or otherwise provides for the safety and welfare of the State upon its own authority, it must always, in performing these important functions, keep within the bounds of the Constitution and the law (Art. 39, b and /).

[44] Danzig's character as a State governed by the rule of law (Rechtsstaat) is also and more particularly revealed in Part II (Art. 71 et sqq.) of the Constitution, which deals with fundamental rights and duties. In this case only the fundamental rights need be considered.

[45] Provisions concerning such rights occur in most of the constitutions drawn up since the beginning of the XIXth century. They are designed to fix the position of the individual in the community, and to give him the safeguards which are considered necessary for his protection against the State. It is in that sense that the words "fundamental rights" (Grundrechte) have always been understood. [p55]

[46] The Danzig Constitution lays very special emphasis on the importance and the inviolability of the individual liberties which ensue from these fundamental rights. Article 71 lays down that "Fundamental rights and duties shall govern the direction and determine the scope of legislation, the administration of justice and the conduct of public affairs [Verwaltung]." All the organs of the State dealt with in Part I of the Constitution are therefore required to guide themselves by these fundamental rights which, at the same time, set bounds to their activities.

[47] The object of a large number of the articles of Part II of the Constitution is to confer essential individual rights. Thus Article 74 provides that the liberty of the person shall be inviolable; Article 75 gives freedom of movement within the Free City, the right to sojourn and to settle there, to acquire real property, to earn a living in any way; Article 79 confers upon individuals the right to express their opinion by word, in writing or in any other manner; Articles 84 and 85 confer a right of assembly and association. Generally speaking, this Part II of the Constitution embraces practically all the aspects of the life of an individual in his public and private activities.

[48] Moreover, these provisions do not all confer absolute and unrestricted rights. The Constitution provides that, in the general interests of the community, some of the liberties of the individual may be restricted. But such restrictions can only be imposed by law. This is stated in a large number of the articles in Part II of the Constitution, and this is precisely the import of the guarantee afforded to these liberties or fundamental rights. This appears more particularly in the three articles which have been mentioned and which refer to essential aspects of liberty: personal liberty, limitation or deprivation of which may not be imposed by public authority save in virtue of a law (Art. 74); - the right of sojourn, settlement and movement, a right which may not be curtailed without legal sanction (Article 75); - freedom to express opinion within the bounds of the law; no disadvantage of any kind may be imposed on a person "on account of his exercise of this right" (Art. 79).

[49] The representatives of the Free City contended that the decrees of August 29th, 1935, did not involve any violation of the Constitution of Danzig for the following reason. The decrees - they argued - had legal force under the law of June 24th, 1933, in virtue of which they had been issued; the articles of the Constitution conferring liberties on individuals allow restrictions to be imposed by law; accordingly, the restrictions introduced by the decrees of August 29th, 1935, [p56] were imposed in virtue of a law and therefore complied with the requirements of the Constitution.

[50] The Court cannot accept this argument. The word "law", in these articles of the Constitution, means not merely a legislative act, but also one the terms of which are in conformity with the Constitution and which, in particular, respects the principles on which the Constitution is based. Since, as has been explained above, the Court is now considering whether the decrees are consistent with the Constitution, not from the point of view of their form or legal basis, but solely from that of their contents, it will not stop to examine whether the decrees fulfil the first of these conditions. As regards the second condition, the Court observes that among the principles which the decrees are bound to respect is, as already pointed out, the principle which determines the position of the individual by according him certain fundamental rights (Grundrechte). The rule that a law is required in order to restrict the liberties provided for in the Constitution therefore involves the consequence that the law itself must define the conditions in which such restrictions of liberties are imposed. If this were not so, i.e. if a law could simply give a judge power to deprive a person of his liberty, without defining the circumstances in which his liberty might be forfeited, it could render entirely nugatory a provision such as that contained in Article 74 of the Constitution. But, as the Court has already explained, the decrees of August 29th, 1935, so far from supplying any such definition, empower a judge to deprive a person of his liberty even for an act not prohibited by the law, provided that he relies on the fundamental idea of a penal law and on sound popular feeling. These decrees therefore transfer to the judge an important function which, owing to its intrinsic character, the Constitution intended to reserve to the law so as to safeguard individual liberty from any arbitrary encroachment on the part of the authorities of the State.

[51] It is true that a criminal law does not always regulate all details. By employing a system of general definition, it sometimes leaves the judge not only to interpret it, but also to determine how to apply it. The question as to the point beyond which this method comes in conflict with the principle that fundamental rights may not be restricted except by law may not be easy to solve. But there are some cases in which the discretionary power left to the judge is too wide to allow of any doubt but that it exceeds these limits. It is such a case which confronts the Court in the present proceedings.

[52] The problem of the repression of crime may be approached from two different standpoints, that of the individual and that of the community. From the former standpoint, the object [p57] is to protect the individual against the State : this object finds its expression in the maxim Nulla pœna sine lege. From the second standpoint, the object is to protect the community against the criminal, the basic principle being the notion Nullum crimen sine pœna. The decrees of August 29th, 1935, are based on the second of these conceptions ; the Danzig Constitution is based upon the former. For this Constitution takes as its starting-point the fundamental rights of the individual ; these rights may indeed be restricted, as already pointed out, in the general public interest, but only in virtue of a law which must itself specify the conditions of such restriction, and, in particular, determine the limit beyond which an act can no longer be justified as an exercise of a fundamental liberty and becomes a punishable offence. It must be possible for the individual to know, beforehand, whether his acts are lawful or liable to punishment.

[53] To sum up, the Court holds that the decrees of August 29th, 1935, are not consistent with the guarantees which Part II of the Danzig Constitution provides for fundamental rights; and in particular they are not consistent with Articles 74, 75 and 79. Furthermore, the Court holds that the decrees violate the principles on which, as already explained, Part II of the Constitution is founded.

[54] FOR THESE REASONS,
The Court,
by nine votes to three,
is of opinion that the two decrees of August 29th, 1935, are not consistent with the Constitution of the Free City of Danzig, and that they violate certain provisions and certain principles thereof.

[55] Done in English and French, the English text being authoritative, at the Peace Palace, The Hague, this fourth day of December, one thousand nine hundred and thirty-five, in two copies, one of which is to be deposited in the archives of the Court and the other to be forwarded to the Council of the League of Nations.

(Signed) Cecil J. B. Hurst,
President.
(Signed) Å. Hammarskjöld
Registrar. [p58]

[56] Count Rostworowski, M. Anzilotti and M. Nagaoka, Judges, declare that they are unable to concur in the Opinion given by the Court and, availing themselves of the right conferred on them by Article 71, paragraph 3, of the Rules., have appended thereto the individual opinions which follow.

(Initialled) С J. В. Н.
(Initialled) Ä. H. [p59]


Declaration by Count Rostworowski.

[Translation]

[57] Count Rostworowski, Judge, declares that he is unable to concur in the Opinion given, because, in his view, the two decrees in question of 1935 are not, in substance, inconsistent with the Constitution of the Free City of Danzig and do not violate any of its provisions or conflict with any of its principles.

[58] On the other hand, he considers that these same decrees of 1935, having been issued by the Senate alone, are, as regards the form of their enactment, contrary to Article 43, paragraph 1, of the Constitution, which requires that legislation must receive the concurrent assent of the Volkstag and the Senate. - The argument based on the Enabling Law of 1933 is not, in his view, sound, since the law of 1933 itself, in effect, profoundly modifies the constitutional régime of the Free City. There being no provision in the Constitution authorizing this law, it appears to be a deviation from the terms of the Constitution which can only be made lawful by means of the express approval of the League of Nations. In the absence of such approval, the law of 1933 does not suffice to render the impugned decrees of 1935 lawful and accordingly they remain, as regards the form of their enactment, inconsistent with the Constitution of Danzig.

(Signed) M. Rostworowski. [p60]

Individual Opinion by M. Anzilotti

[Translation]

[59] I consider that the Court should not have given the opinion for which it was asked by the Council; my reasons are briefly as follows.

[60] 1.- At its very first session, in the winter of 1922, the Court considered very closely the problems arising in connection with the exercise of the advisory function entrusted to it by Article 14 of the Covenant of the League of Nations. This function, which is only very exceptionally entrusted to courts, did not fail to give rise to grave doubts and misgivings with regard to its consistency with the essential function of the Court, i.e. the judicial settlement of international disputes.

[61] The attention of the Court at that time was particularly directed to the question whether and in what circumstances it could refuse to comply with a request for an advisory opinion addressed to it by the Assembly or by the Council of the League of Nations.

[62] This question was discussed at length in a memorandum which Judge J. B. Moore submitted to the Court on February 18th, 1922, and which is to be found in Series D., No. 2, of the Publications of the Court (Acts and Documents concerning the organization of the Court), pages 383-398. The conclusion reached by Mr. J. B. Moore was that the Court is not under an unconditional obligation to give advisory opinions upon request, but that if it receives a request of this kind, it should then deal with the application according to what should be found to be the nature and the merits of the case. This conclusion was based, firstly, on a comparison of the two official texts of Article 14 of the Covenant, in which alone is the subject mentioned, and on the necessity of adopting an interpretation paying due regard to the permissive language - importing discretion - of the English text (The Court may also....) and not incompatible with the wider terms of the French text (Elle donnera aussi....). Secondly, this conclusion was based on the fact that it is the duty of the Court at all costs to safeguard the fundamental purpose which it is designed to achieve, namely, the advancement of the application between nations of the principle and method of judicial decision.

[63] The Court concurred in this view. At the meeting on March 10th, 1922, Judge Altamira having raised the question whether some provision safeguarding the Court's right to refuse to give opinions should not be included in the Rules, Lord Finlay explained [p61] that it would be preferable not to insert anything to this effect in the Rules. Any provision - he said - which might be inserted would be in the nature of an interpretation of Article 14 of the Covenant; the Court however could not be bound by such an interpretation and would have to give a fresh interpretation in regard to each case as it arose. The discussion was concluded by a short observation by M. Weiss, which confirmed the right of the Court to refuse to reply to questions referred to it.

[64] The Court, applying these principles and because it would have been constrained to deviate from the essential rules which govern its function as a court and which it must follow even when giving an advisory opinion, refused to give the opinion for which it had been asked by the Council in the case concerning Eastern Carelia (Publications of the Court, Series В., No. 5). There is no reason to suppose that the Court has ever meant to modify its attitude. It is, indeed, difficult to see how the Court's independence of the political organs of the League of Nations could be safeguarded, if it were in the power of the Assembly or the Council to oblige the Court to answer any question which they might see fit to submit to it.

[65] 2.-Assuming that Article 14 of the Covenant is not to be regarded as placing the Court under an obligation in all circumstances to give advisory opinions, but that it allows the Court a measure of discretion and consequently the option of refusing to do so when circumstances render that course advisable or essential, it seems difficult to avoid the admission that, in the present case, there were very good reasons why the Court should not have given the opinion for which it was asked.

[66] The question submitted to the Court is one purely of Danzig constitutional law ; international law does not come into it at all. It neither is nor can be disputed, however, that the Court has been created to administer international law. Article 38 of the Statute, which states the sources of law to be applied by the Court, only mentions international treaties or custom and the elements subsidiary to these two sources, to be applied if both of them are lacking. It follows that the Court is reputed to know international law; but it is not reputed to know the domestic law of the different countries.

[67] Of course the Court may have - and has often had - to decide as to the meaning and scope of a municipal law; it has even laid down in this connection some very important principles to which I will revert later. It has however done so only if and in so far as this is necessary for the settlement of international disputes, or in order to answer questions of international law. The interpretation of a municipal law as such and apart from [p62] any question or dispute of an international character is no part of the Court's functions: it is fitted neither by its organization nor by its composition to undertake this ; its authority and prestige have nothing to gain therefrom.

[68] 3. - It is true that the Constitution of the Free City of Danzig has been placed under the guarantee of the League of Nations, which customarily exercises it through the Council, and that this guarantee forms the subject of an international stipulation, namely Article 103 of the Treaty of Peace of Versailles.

[69] This fact, however, would seem to be irrelevant so far as the point under consideration is concerned.

[70] For the question referred to the Court is entirely unconnected with the nature and scope of the guarantee of the League of Nations, or with the interpretation of the article providing for this guarantee. The question is exclusively concerned with the interpretation of the Constitution of the Free City in relation to certain legislative decrees of the Danzig Senate concerning penal law: all that the guarantee of the League of Nations did was to give the Council an opportunity of asking the Court for an opinion. It is also certain - as the Court expressly states in its Opinion of February 4th, 1932, concerning the treatment of Polish nationals at Danzig - that the special features which the Danzig Constitution derives from Article 103 of the Treaty of Versailles cannot invest it with the character of an international instrument.

[71] All that can be said is that the reason why the Council asked for the Court's opinion was because it desired to be informed as to the scope and effects of certain provisions of the Danzig Constitution and of certain acts of the Senate, in order to enable it to exercise the guarantee of the League of Nations. Now, although it is the right and obligation of the Council to obtain any information which it considers useful or necessary, it is equally true that it must do this by appropriate methods, and must not seek to impose on the Court duties differing from those for which it was created and organized. Appropriate methods were not lacking. A committee of jurists, versed in constitutional law and particularly in the German Constitutions on which the Danzig Constitution was based, could quite well have given the Council all the information that it needed. That is indeed the course which the Council followed in other similar cases relating to the same Constitution.

[72] 4.-The fact that the Court's opinion has been sought on a question which relates to the municipal law of a particular country, apart from any question of international law or of an [p63] international dispute, suffices, in my view, to justify the Court in declining to give its opinion.

[73] This argument applies with even greater force when the Court finds itself compelled, in order to give an opinion on a question of municipal law, to deviate from the rules which govern its action and procedure. That is what has happened in the present case, and from two points of view.

[74] First, in regard to the method in which the Court has to proceed when it has to interpret a municipal law.

[75] It should be observed, in regard to this matter, that the Court, in performing its function as an organ of international law, may have to consider municipal laws from two entirely distinct standpoints.

[76] In the first place, it may have to examine municipal laws from the standpoint of their consistency with international law. The Court has sovereign power of adjudication on this point: "from the standpoint of international law and of the Court which is its organ, municipal laws are merely facts which express the will and constitute the activities of States, in the same manner as do legal decisions or administrative measures" (Judgment No. 7 - Case concerning certain German interests in Polish Upper Silesia, p. 19).

[77] Secondly, the Court may find it necessary to interpret a municipal law, quite apart from any question of its consistency or inconsistency with international law, simply as a law which governs certain facts, the legal import of which the Court is called upon to appraise. It was in regard to cases of that kind that the Court expressed itself in the following terms in the Serbian Loans case (Judgment No. 14, p. 46):

"The Court, having in these circumstances to decide as to the meaning and scope of a municipal law, makes the following observations: For the Court itself to undertake its own construction of municipal law, leaving on one side existing judicial decisions, with the ensuing danger of contradicting the construction which has been placed on such law by the highest national tribunal and which, in its results, seems to the Court reasonable, would not be in conformity with the task for which the Court has been established and would not be compatible with the principles governing the selection of its members. It would be a most delicate matter to do so, especially in cases concerning public policy - a conception the definition of which in any particular country is largely dependent on the opinion prevailing at any given time in such country itself - and in cases where no relevant provisions directly relate to the question at issue."

[78] The importance which the Court attached to these considerations is shown by the fact that it did not hesitate to maintain them in their entirety in the Brazilian Loans case, although [p64] it was adjudicating under a Special Agreement, Article VI of which prayed it to estimate the weight to be attached to municipal laws, without being bound by the decisions of the respective courts of the countries concerned (Judgment No. 15, pp. 123 et sqq.).

[79] It is agreed that in the present case the Court is not called on to appraise the Constitution or laws of Danzig from the standpoint of their consistency with international law ; the only issue is that of the consistency of certain Danzig legislative decrees with the Constitution of Danzig.

[80] On the other hand, the Court has been informed that the Danzig courts are competent to determine the constitutionality of the laws, whether in regard to their form or their substance, and that a considerable jurisprudence, relating very closely to the matter submitted to the Court, exists on this very question.

[81] The Court appears, however, to have held that it ought not to concern itself with the jurisprudence of the Danzig courts, but that it should freely interpret the Constitution and decrees in question. It is indeed highly probable that this was the Council's intention when it sought the opinion of the Court.

[82] But though I can readily understand the point of view of the Council, which is an essentially political body and has to exercise the political duties of guarantor of the Free City's Constitution, I find it very difficult to agree that the Court, which is a judicial body and an organ of international law, should undertake to give its own interpretation of a municipal law, with which it is not reputed to be acquainted and of which it is certainly not an organ. If this procedure is the consequence of the question put by the Council, the only conclusion that I am able to draw is that the Council has asked the Court a question which it ought not to answer.

[83] 5. - Even more significant, from this point of view, is the position which the Court has been led to adopt in regard to its own rules of procedure.

[84] As to whether the opinion that the Court is asked to give relates to a "question" or to a "dispute", that is a point that does not greatly interest me ; it is really a matter of words. The fact is that the Court was requested to give its opinion on a point arising out of an important political dispute between the majority party, that is the National-Socialist Party, on the one hand, and the three minority parties, namely the German National Party, the Centre Party and the Social-Democrat Party, on the other hand. The last-named parties had presented a petition to the High Commissioner of the League of Nations at Danzig, complaining that the decrees of the Senate of the Free City (henceforward composed of the [p65] members of the National-Socialist Party), dated August 29th, 1935» were inconsistent with the Constitution; that petition had been transmitted to the Council by the High Commissioner, and it gave rise to the Resolution by which the Council decided to ask the Court's opinion on the question stated in the Request.

[85] It is therefore manifest that those who could supply the Court with the necessary information, and who were in a position to put forward arguments and counter-arguments in support of one standpoint or the other, were the National-Socialist Party, on the one hand, and the three minority parties, on the other hand.

[86] In an Order made on October 4th, 1935, the President of the Court declared, the Court not being in session, that the Free City fulfilled the conditions laid down in Article 73, paragraph 1, sub-paragraph 2, of the Rules of Court; in consequence a special and direct communication was sent to the Senate informing it that the Court was prepared to receive a written memorial and to hear an oral statement at a public sitting to be held for that purpose. On the other hand, as the minority parties did not fulfil the conditions laid down in the above-mentioned clause, the communication provided for therein was not sent to them. The President contented himself with acquainting them that, having regard to the shortness of the time that had elapsed between the publication of the decrees and the despatch of the petition, and to the possibility that information which might be of importance in regard to the issue referred to the Court had been omitted from the petition, the Court would be willing to receive an explanatory note from the petitioners in case they desired to elaborate the statements they had made in the petition.

[87] In this way, the two Parties to the dispute, to which the question before the Court relates, were placed on a footing of manifest inequality. The majority party, of which the Senate of the Free City is composed, was enabled not only to submit to the Court a written memorial, but also to have oral statements made on its behalf by an Agent and Counsel, whereas the three minority parties were only allowed to send explanatory notes, without taking any part in the oral procedure: neither orally nor in writing were they given an opportunity of answering the contentions of their opponents, so that the case was never argued before the Court.

[88] It may perhaps be contended that the resulting inequality between the majority party and the other parties in the proceedings before the Court is of no consequence, since the conclusion arrived at by the Court is favourable to the case of the minority parties : the latter could certainly have no reason [p66] for complaint, and it is hardly likely that the Senate of the Free City would reproach the Court for having placed it in a privileged position.

[89] It would be easy to reply that the hearing of both sides and the submission of the arguments in support of the respective contentions is designed to furnish the Court with all data for its decision and is therefore provided for in the essential interests of justice and consequently of the Court. As the Agent for the Free City pointed out in his statement on October 30th, 1935, in the absence of an opponent, there can be no certainty that all doubtful points will clearly be brought out at the hearing. The arguments which the minority parties would have presented would perhaps have strengthened their case, but it is also conceivable that they might have revealed weak points to the Court.

[90] That, however, is not the point with which I am concerned. The essential point to my mind is that the Court, in order to be able to give this Opinion, was obliged either to set aside its Rules and create a procedure ad hoc, or to deviate from a rule so fundamental as that of the equality of parties ; and the reason for this was that the case concerned a question of municipal law arising in connection with a domestic political dispute.

[91] This more than suffices, once again, to lead to the conclusion that the opinion asked for was outside the scope of the functions for which the Court has been created and organized, and that it should not have given the opinion.

(Signed) D. Anzilotti. [p67]

Individual Opinion by M. Nagaoka.

[Translation]

[92] The view that the expression "law", as used in Part II of the Constitution of Danzig, means a law passed in accordance with Article 43 of that Constitution is not convincing; for it is impossible that a law of the kind contemplated in this part of the Constitution should always go into full detail. That moreover is why it is generally recognized that a penal law may leave details to be provided for by means of administrative regulations.

[93] It is also the fact that a penal law may - and that penal laws do in fact frequently - leave the details of its application to the courts. Accordingly, in order to ascertain whether the two decrees of August 29th, 1935, issued as decrees having force of law, are inconsistent with the Danzig Constitution, it must be ascertained whether these legislative decrees leave too much latitude to the courts, allowing them so absolute a discretion in rendering judgment that they may even ignore the provisions of the Constitution. It is difficult to see how the answer to this question can be in the affirmative. The two legislative decrees in question oblige the courts, when rendering judgment in pursuance of them, to fulfil two conditions which considerably restrict the measure of the discretion which they may exercise. Persons endeavouring to circumvent the provisions of a penal law will try to take advantage of any loopholes or imperfections which it may offer. If however the law were applied by analogy under the conditions laid down by the legislative decrees, such persons would realize beforehand that their actions were liable to punishment.

[94] On the other hand, the fact must not be lost sight of that the Constitution of the Free City of Danzig was drawn up in agreement with the High Commissioner of the League of Nations and can only be altered with the authorization of the League. It follows that the Free City has no right to delete or amend any provision of the Constitution simply of its own free will. The Constitution in force in Danzig must therefore be the Constitution as approved by the League of Nations. This is an international obligation which the Senate of the Free City cannot evade; and the Danzig courts make it their duty strictly to respect the provisions of the Constitution which override all other laws. [p68]

[95] Hitherto the League of Nations has considered that the measures provided by Danzig legislation afford the necessary guarantee that the Constitution will be respected. If the League came to the conclusion that these measures were not sufficient, it would be for the League to call upon the Free City, in virtue of the Treaty of Versailles, to give such new guarantees as the League considered indispensable in order to enable it to fulfil the mission entrusted to it.

[96] Having regard to the foregoing, I am of opinion that the legislative decrees in question of August 29th, 1935, are consistent with the Constitution or, more precisely, that they in no way affect the provisions of that instrument, although they confer on the courts powers wider than those which they previously possessed; on the other hand, I am of opinion that, when a judgment is rendered in application of the terms of these legislative decrees, there may be a question whether that judgment is or is not in conformity with the Constitution.

(Signed) H. Nagaoka.

Annex 2.

I.—Documents Transmitted by the Secretariat of the League of Nations:

1. Report by the representative of the United Kingdom, adopted by the Council of the L. N. on September 23rd, 1935 {in French and English). (Doc. С 373. 1935. VII.)
2. Petition from the German National, Social-Democrat and Centre Parties, concerning the legislative decree of August 29th, 1935, amending certain provisions of the Penal Code in force (in French and English). (Doc. C. 355. 1935. VII.)
3. Original copies in German of documents reproduced or referred to in Document C. 355. 1935. VII:

(a) Petition of the German National, Social-Democrat and Centre Parties (Sept. 4th, 1935).
(b) Observations of the Senate of Danzig (Sept. 7th, 1935).
(c) Geselzblalt fur die Freie Stadt Danzig—Ausgabe A., No. 91 of August 31st, 1935, containing the decrees complained of by the petitioners.
(d) Gesetzblatt fur die Freie Stadt Danzig—Ausgabe В., No. 33 of June 26th, 1933, containing the text of the law of June 24th, :933. for the relief of the distress of the population and the State.
(e) Deutsche Jusliz, Rechtspflege und Rechtspolitik, of July 12th, 1935. Articles entitled : ,,Die leitenden Gedanken der beiden Gesetze zur Anderung des Strafgesetzbuches sowie zur Anderung des Strafverfahrens und des Gerichtsverfassungsgesetzes vom 28. Juni 1935", and: „Die Einzelheiten der Strafgesetznovelle vom 28. Juni 1935"
(f) Deutsche Justiz, Rechtspflege und Rechtspolitik, of August 30th, 1935. Article entitled: „Der Gedanke der Gerechtigkeit in der deutschen Strafrechtserneuerung.“

4. Minutes of the meeting of the Council of the L. N. on Sep¬tember 23rd, 1935 (aft.), with the report of a Committee of three jurists referred to therein.
5. Letter from the High Commissioner of the L. N. at Danzig to the Senate of the Free City, transmitting the petitions of certain political parties (Sept. 5th, 1935).

II.— Documents Transmitted on Behalf of the Free City of Danzig :

1. Proceedings of preparatory work previous to the approval of the Constitution of Danzig by the Council of the L. N. :
(1) Minutes of the sub-committee appointed by the preparatory Commission for the drafting of the Constitution.
(2) Minutes of the Commission on the Constitution of the Constituent Assembly.
(3) Verbatim records of the Constituent Assembly and of the Volkstag.
2. Urteil des Danziger Obergerichts, I. Zivilsenat, 14. November 1935.
3. Zusammenstellung der im Plaidoyer nicht wortlich zitierten Entscheidungen und Gesetzesstellen.
4. „Hohere Gerechtigkeit, Gnade und Naturrecht", von Rechtsanwalt Prof. Dr. Grimm, Essen-Munster. [p73]
5. „Kechtsgutachten uber die Verfassungsmassigkejt des von Volkstag und Senat der Freien Stadt Danzig in der Form eines einfachen Gesetzes beschlossenen und verkündeten Gesetzes zur Behebung der Not von Volk und Staat, vom 24. Juni 1933 (Gesetzblatt fur die Fveie Stadt Danzig, 1933, S. 273)", von Staatsrat Prof. Dr. Carl Schmitt, Berlin. (Cf. Official Journal of the L. N., XVIth Year, No. 6, p. 775.)

III.—Documents Assembled by the Registry:

1. Constitution of Danzig (extract No. 58 of the Official Journal, Dec. 1930).
2. Articles 2 and 2 a of the Danzig Penal Code in force prior to September 1st, 1935.
3. Danzig Enabling Laws previous to that of June 24th, 1933, i.e. of:

October 20th, 1923 (Danz. Gesetzblatt, p. 1067).
November 29th, 1926 (id., p. 317).
January 23rd, 1931 (id., p. 7).
June 30th, 1931 (id., p. 005).
September 1st, 1931. (id., p. 719).
June 28th, 1932 (id., p. 403).
June 24th, 1933 (id., p. 273).

4. Passage from the judgment given on November 7th, 1934, by the Danzig Supreme Court, quoted in the judgment given by that Court on November 14th, 1935.
5. Passage from the judgment given on April 28th, 1932, by the Danzig Supreme Court, quoted in the judgment given by that Court on November 7th, 1934.



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