the extradition was inadmissible as long as the Spanish Government did not submit proof that the fugitives were involved in the assassination of Dato. These arguments disregarded the fact that in the general extradition procedure between the German Reich and Spain the question is not examined whether the fugitives are guilty of the deed on account of which extradition is requested. The basis of the request for extradition is the judicial warrant submitted through diplomatic channels and thus having all possible guarantees of being genuine. The German authorities were not competent to examine on their own accord whether the warrant against the fugitives was based on facts. The question whether the prosecuted persons were guilty of the act of which they were accused had to be disregarded entirely. In other respects, too, the legal circumstances were misunderstood. It was assumed by many that the so-called criminal-attempt clause contained in the German-Spanish extradition treaty in Article 6, paragraph 2, was of material importance for the decision of the case. Deputy Dr. Herzfeld, for instance, in his remarks reproduced above, thought he could reproach the Minister of Justice for having disregarded the criminal-attempt clause. In fact he directly asserted that the inadmissibility of the extradition of the Fort couple followed from this clause. The reply of the government clears up this legal aspect of the case. The criminal-attempt clause is a limitation of political asylum. In the case of certain serious crimes against the head of a foreign government and the members of his family it is generally provided that they are not political, that they are in every instance subject to extradition. The murdered Premier Dato was not the head of the government in the Kingdom of Spain. Hence the criminal-attempt clause was not applicable in the present case. The exception made by this clause to the rule of political asylum goes just as far as it purports to go. It cannot be used for the conclusion that the murder of a minister, since this is not mentioned, or any murder other than that of the head of a state, must be considered political. Finally, all the discussion on the extradition of anarchistic criminals was beside the point. The German-Spanish extradition treaty contains no anarchist clause, as is contained in some more recent treaties of the German Reich. Nor do any special agreements exist with the Spanish Government on the treatment of offenses which are to be considered anarchistic. Neither can it be claimed that the law of extradition of the civilized states has taken such a uniform stand with regard to anarchistic crimes that a recognized rule of extradition has been developed from it which would have to be observed by the German Reich and Spain. The constructions of the various states, as shown by their practise of extradition, are still too divergent for this. Consequently it could not be deduced from the assertion that the assassination of Dato was an anarchistic crime that the deed was not a political offense. Rather was it logical to deduce that, even as an anarchistic deed, the deed was subject to the general rules and might be political or common, depending upon its essential character. Therefore, it was necessary to examine the facts of the case and to give the deed the character assigned to it by the German-Spanish treaty. As a result of the statements of the Government of the Reich and of the Prussian Government, two principles can be laid down: 1. The deed charged to the fugitives by the Spanish Government does not belong to the class which is not subject to extradition according to Article 6 of the German-Spanish extradition treaty. 2. The consent for extradition is, according to the German Constitution, incumbent upon the Government of the Reich, not upon the Prussian Government. Let us discuss each of these principles to some extent. The provisions of the extradition treaty between the German Reich and Spain essential for a study of the legal question are as follows: Article 1, paragraph 1: The high contracting parties bind themselves by the present treaty to extradite to one another in all cases admissible according to its provisions, those persons who, on account of one of the punishable acts mentioned hereinafter, committed in the territory of the requesting state and punishable there, have been condemned or indicted or cited for judicial examination, whether as perpetrators or accomplices, and are sojourning in the territory of the other party, to wit: 1. on account of homicide or murder, . Article 6, paragraph 1: The provisions of the present treaty are not applicable to such persons as have become guilty of any political crime or offense. A person who has been extradited for one of the common crimes or offenses mentioned in Articles 1 and 2 shall accordingly in no case be tried or punished in the state to which he has been extradited for a political crime or offense committed prior to the extradition, nor for an act connected with such a political crime or offense, nor on account of a crime or offense not provided for in the present treaty; except in case the person in question after having been either punished for or definitely acquitted of the crime or offense for which he was extradited, remains in the country for three months, or, after leaving it, returns again to it. The history of the genesis of the Spanish-German extradition treaty shows that the German and Spanish Governments used as a basis for the negotiations the German-Belgian extradition treaty of December 24, 1874. The text of the treaty provisions shows that to a great extent it is identical with its model.23 In particular, the articles here mentioned are absolutely identical with the corresponding provisions of the German-Belgian treaty. In the matter of interpretation, we shall have to revert to this older treaty, which is governed principally by Belgian legal conceptions. The extent of political asylum in Article 6 of the treaty can, therefore, be determined only " Printed documents of the Reichstag, 1878, No. 252; Stenographic Reports, 1878, p. 1429. 23 by taking into consideration the Belgian law of extradition. The manner in which political asylum arose and developed in Belgium has been described with unsurpassable accuracy by the late Ferdinand von Martitz in the second part of his Internationale Rechtshilfe in Strafsachen (1897). His masterly exposition gives a clear picture of the Belgian legal conception and offers a safe basis for the interpretation of Article 6 of the German-Belgian and German-Spanish treaties required in this case. The result is briefly as follows. The sphere of offenses not subject to the obligation of extradition includes, in the first place, the crimes and offenses which are political by their nature. They are without regard for the motive or purpose of the perpetratorsuch offenses as are directed against a political possession in law. They can usually be found in the penal codes of the states without great difficulty, even though they are not expressly defined therein as political offenses. German law, in agreement with the motives of the draft of a penal code for the North German Confederation,24 considers the following to be by their nature political offenses: high treason, treasonable crimes, hostile acts against friendly states, criminal acts directed against citizens' rights and against the authority of the state as such. Franz von Liszt has summed them up more briefly as follows: All premeditated crimes directed against the existence or security of the state, against the head of the state, or the political rights of the citizens.25 Clearly the murder of the Spanish Premier does not come under this group. But the treaty also excludes from extradition offenses connected with a political crime or offense. We are dealing here with offenses characterized by a translation of the conception of faits connexes à un crime ou délit politique (acts connected with a political crime or offense) developed in the Belgian law of extradition. There are included here in contrast to offenses political by their nature-offenses that by their nature are common, which by an inherent connection with a political offense are to share the treatment of the latter in matters of extradition. Common offenses are in this sense connected with a political offense if they are intended to prepare, support or conceal an offense political by its nature. An offense that is by its nature common, which by itself alone fulfils its purpose, does not possess this connection, although its motive or purpose could be termed political. The murder of Premier Dato is by its nature a common offense. Consequently, if an examination of the circumstances under which it was committed should Ishow that it has an inherent connection with an offense that is by nature political, it would, by virtue of its character as a connected crime, not be subject to extradition. The Minister of Justice in his speech of February 23 before the Reichstag announced that, according to the official reports from Spain to the German Government, the murder of Dato, as well as the other 24 Printed documents of the Reichstag, 1870, No. 5, p. 84. As acts of the syndicalists, were intended as acts of revenge and terrorism. a matter of fact this agrees with what the partizan friends of the prosecuted persons in Spain and in Germany published with regard to the reasons for the murder. According to this, the deed was to be the execution of a death sentence pronounced by the syndicalists against Dato. Hence the deed fulfilled its purpose by itself alone. There is no recognizable connection with any political crime. Therefore, the obligation of extradition had to be recognized as existent, in accordance with the treaty. The second result of the discussions is in the field of German internal competency. The new constitution of the German Reich of August 11, 1919, leaves doubt as to whether the German Reich has remained a federal state or has become a decentralized unified state. In any case the position of the former individual states in constitutional law, which are today designated as Länder, has been modified to a great extent with a view to a greater unification of the Reich. The same is true with regard to extradition. For extradition it is important that Article 6 of the national constitution has given the Reich as such the exclusive right of legislation on the subject of extradition and foreign relations in general. The German Länder do not therefore possess the power to pass extradition laws or to conclude extradition treaties with foreign states. Similarly, Article 78 of the national constitution provides that the relations to foreign states are exclusively the concern of the Reich. The German Länder cannot therefore negotiate in an individual case with a foreign country with regard to the duty of extradition incumbent upon the Reich. The question of international law whether a treaty entails extradition or not can only be decided by the Reich itself. The statement of the Minister of Justice of February 24, made in the Reichstag, in which he cleared up the question of competency: "The responsibility for granting the extradition is borne by the Government of the Reich" describes correctly the legal situation as established by the constitution. This manner of determining competency is in agreement with the practise of the United States and Switzerland. The Fort case has already played an important part as a prejudication. It was immediately followed by the Boldrini case. The Italian Government prosecuted the Italian national Giuseppe Boldrini on the charge of participation in the Milan dynamite plots in the execution of which on March 23, 1921, about 30 persons were killed and 80 injured. Boldrini was arrested on German soil. The Italian Government requested his extradition. The perpetrator of the crime and his party friends asserted that it was a political crime since the deed had been committed for political reasons. The German Government extradited Boldrini on May 4, 1922, on the basis of the GermanItalian treaty. The treaty contains the provision for the non-extradition of political criminals in the same form as the German-Spanish and the German-Belgian treaties. In general, the great majority of the existing extradition treaties of the German Reich contain the same provisions as to political asylum as these treaties do. The states that have made similar agreements with the German Reich will find in the discussions of the Fort case valuable material for the interpretation of the provisions as to political asylum. Whether the new German extradition law announced by the Minister of Justice will be based upon the same theories it is still impossible to say. |