COUR PERMANENTE DE JUSTICE INTERNATIONALE

SÉRIE AIB
ARRETS, ORDONNANCES ET AVIS CONSULTATIFS

FASCICULE N° 65

COMPATIBILITE. DE CERTAINS
DECRETS-LOIS DANTZIKOIS AVEC LA
CONSTITUTION DE LA VILLE LIBRE

AVIS CONSULTATIF DU 4 DÉCEMBRE 1935
XXXVme SESSION

1935

XXXVth SESSION
ADVISORY OPINION OF DECEMBER 4th, 1935

PERMANENT COURT OF INTERNATIONAL JUSTICE

SERIES A./B.
JUDGMENTS, ORDERS AND ADVISORY OPINIONS

FASCICULE No. 65

CONSISTENCY OF CERTAIN
DANZIG LEGISLATIVE DECREES WITH
THE CONSTITUTION OF THE FREE CITY

SOCIETE D'ÉDITIONS A, W. SIJTHOFFS

LEYDE LEYDEN
A. W. SIJTHOFF PUBLISHING COMPANY
4I

PERMANENT COURT OF INTERNATIONAL JUSTICE

| 1935.
THIRTY-FIFTH (EXTRAORDINARY) SESSION. December 41

General Lis
No. 63.

December 4th, 1935.

CONSISTENCY OF CERTAIN
DANZIG LEGISLATIVE DECREES WITH
THE CONSTITUTION OF THE FREE CITY

The international element in the question raised as to the consti-
tutionality of the decrees of August 29th, 1935 (Ishii report of
Nov, 17th, 1920; Advisory Opinion of the Court of Feb. 4th, 1932).

Changes made by these decrees in the penal law previously in
force.

Principles of the Constitution of Danzig: the Free City is a
Rechtsstaat (State governed by the vule of law); the Constitution
guarantees the fundamental rights of individuals (Art. 71, 74, 75
and 79).

Inconsistency of the decrees with this latter principle and with

the provisions which express it.

ADVISORY OPINION.

Before: Sir CEciL Hurst, President; M. GUERRERO, Vice-
President ; Baron RoLin-JAEQUEMYNS, Count RosT-
WOROWSKI, MM. FROMAGEOT, DE BUSTAMANTE, ALTA-
‘“mirA, ANZILOTTI, URRUTIA, Jhr. VAN EVYSINGA,
MM. Wanc, Nacaoxka, Judges.

4

A./B. 65.—-DANZIG LEGISLATIVE DECREES 42

The Court, composed as above, gives the following opinion :

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 Com-
missioner of September 7th, 1935, by which the High Commis-
sioner 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 Assem-
bly, 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 Pena] Procedure ;

(6) 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 Internationa] 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.”

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 Inter-
national Justice an Application requesting the Court, in accord-
ance with Article 14 of the Covenant, to give an advisorv
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 assist-
ance which the Court may require in the examination of this
matter, and will, if necessary, arrange to be represented before
the Court.’

5

A./B. 65.—DANZIG LEGISLATIVE DECREES 43

The Request was registered on September 30th, 1935, in the
Registry of the Court. To the Request were appended a num-
ber of documents ! 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.

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 opnion, the
special and direct communication mentioned in Article 73, No. 1,
paragraph 2, of the Rules.

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 roth,
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.

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 Octo-
ber 14th, 1935.

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 Profes-
sor Dr. Grimm, and the Court heard the statements presented
by them at public sittings held on October 30th and 31st and

1 See list in the Annex.

A./B. 65.—DANZIG LEGISLATIVE DECREES 44,

November ist. At the conclusion of the sitting on November Ist,
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.

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 3oth. 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 |.

In addition to the written and oral statements above men-
tioned, 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 2.

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.

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 Ist, 1935 ; one of these decrees related
to the criminal law and the other to the law of criminal pro-
cedure and the organization of the courts of the Free City.

The first Article of the decree “amending certain provisions
of the Penal Code’’3 may be rendered in English as follows:

1 See p. 32.
2? ,, list in the Annex.
8 Artikel I. — Rechtsschôpfung 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.

(ri

7

248 — .

A./B. 65.—DANZIG LEGISLATIVE DECREES 45

“Article [Creation of law by the application of penal laws
by analogy.

Articles 2 and 2 a of the Penal Code are amended as fol-
lows :

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.—.

It is unnecessary to set out here the other clauses contained
in this decree.

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

“Article 2-—An act is only punishable if the penalty applic-
able to it has been prescribed by a law in force before the
commission of the act.”

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)? 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.

1,,$ 2. — Eine Handlung kann nur dann mit einer Strafe belegt werden
wenn diese Strafe gesetzlich bestimmt war, bevor die Handlung begangen
wurde."*

2 a) In die Strafprozessordnung werden als § 170 a und als § 267 a folgende
Vorschriften eingefiigt :

»§ 170 a. — Ist eine Tat, die nach gesundem Volksempfinden Bestrafung
verdient, im Gesetz nicht für strafbar erklärt, so hat die Staatsanwaltschaft
zu priifen, 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."

A./B. 65.—DANZIG LEGISLATIVE DECREES 46

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 funda-
mental 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 bv analogy (Penal Code, Art. 2).

Article 265, paragraph 1, shall apply mutatis mutandis.”

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! 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, accord-
ing 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 6) shall be communicated in duplicate (with a statement
of the reasons) to the Department of Justice of the Senate.”

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?, which
is usually described as an ‘‘Enabling Law’; these clauses may
be rendered in English as follows:

1,,$ 9 a. -— Urteile, in denen Bestrafung erfolgt ist, weil die Tat nach dem
Grundgedanken eines Straigesetzes und nach gesundem Volksempfinden Bestra-
fung verdient (§ 2 St. G. B. n. F.) oder in denen eine solche Bestrafung
entgegen dem Antrage der Staatsanwaltschaft abgelehnt ist, sowie Urteile, in
denen eine Wahlfeststellung getroffen ist (§ 2 b St. G. B.), sind der Justiz-
abteilung des Senats in 2 Stiicken einzureichen (mit Gründen).“

2,8 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 Gesetzes-
kraft zu erlassen, denen der Volkstag hiermit zustimmt.

A./B. 65.—-DANZIG LEGISLATIVE DECREES 47

“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.

g. 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 provi-
sions regarding legal costs and fees (also those of barristers and
solicitors) as well as the whole of the law relating to execu-
tions and liens.

9. Massnahmen zur Erhôhung der ôffentlichen Sicherheit und Ordnung.

22. Anderung der Gerichtsverfassung, insbesondere beziiglich der Organi-

sation und Zustandigkeit der Gerichte und der Bestimmungen iiber
die Besetzung mit Laienbeisitzern.

»25. Anderung des Zivil- und Strafprozesses sowie des Konkurs- und

o§

Vergleichsrechts einschliesslich der kosten- und gebührenrechtlichen
Vorschriften {auch für Rechtsanwälte und Notare) und des gesamten
Vollstreckungs- und Pfandungsrechts.

»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

nb

Gemeinden und der Gemeindeverbande sowie der 6ffentlich-rechtlichen
Verbände,

} der Behebung finanzieller, wirtschaftlicher, sozialer, kultureller oder poli-
tischer Notstände,

€) der Erzielung von Ersparnissen,

) der Anpassung an die rechtliche Regelung in den Nachbarstaaten,

»e) der Aufrechterhaltung und des Ausbaues der ôffentlichen Ordnung und

Sicherheit,
der Vereinfachung und Fortentwickelung der Verwaltung und der Rechts-
pflege,

»g) der Behebung der Arbeitslosigkeit.

ln diesem Rahmen sind Strafandrohungen zulassig.‘‘

Io

A./B. 65.—DANZIG LEGISLATIVE DECREES 48

28. The reform of the penal law.

Article 2.—The Senate may only employ the powers confer-

red 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.”

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 2gth, 1926,
January 23rd, 1931, June 3oth, 1931, September Ist, 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.

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 contend-
ing 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 Consti-
tution of the Free City. The petition concluded with a request
to the High Commissioner to support the efforts of the peti-
tioners “for the maintenance of legal and constitutional condi-
tions in the Free City”.

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

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.

2 II

A./B. 65.-—DANZIG LEGISLATIVE DECREES 49

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 Con-
stitution 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.

*
* *

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: “(z) 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’.

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 terri-
tory 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 :

12

A./B. 65.—DANZIG LEGISLATIVE DECREES 50

‘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 Coun-
cil—as well as the duty, to intervene in the event of an erro-
neous application by Danzig of its Constitution.”

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 interna-
tional 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,

The question submitted to the Court is: ‘“‘whether the said
decrees [i.e. the decrees of August 20th, 1935] are consistent
with the Constitution of Danzig, or, on the contrary, violate
any of the provisions or principles of that Constitution”.

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 vio-
lation thereof, and that they cannot be applied without violat-
ing the letter or the spirit of the Constitution.

13

A./B. 65.—DANZIG LEGISLATIVE DECREES 51

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 con-
cerning criminal procedure and the judicial organization of the
Free City. From the documents before the Court it is mani-
fest that in the present case only certain provisions of the two
decrees concerning the criminal character of an act are in ques-
tion, namely, Article I, paragraph 1, of the first decree, which
modifies Article 2 of the Penal Code, and Article I 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 remain-
der of the decrees.

*

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.

The Penal Code in force in Danzig prior to the promulgation of
the decrees, in its Article 2, paragraph I, 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 :
Nullum crimen sine lege, and Nulla pena 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.

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

(x) 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.

No. I requires no comment. No. 2 is an innovation which
deserves careful examination. Where there is no legal pro-
vision 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.

14

A./B. 65.--DANZIG LEGISLATIVE DECREES 52

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 crite-
rion of sound popular feeling, and, if it is found that the act
deserves punishment, must then examine whether the funda-
mental idea of a penal law also requires that it should be
punished.

The object of these new provisions is stated to be to enable
the judge to create law to fill up gaps in the penal legisla-
tion. This may be seen from the title of Article I of the
first decree: “Creation of law [Rechisschépfung] by the applica-
tion of penal laws by analogy’, and of Article I of the
second decree: “Wider latitude accorded to judges. I. Creation
of law .Rechisschépfung| by the application of penal laws by
analogy.”’

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 pena 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 prin-
ciples of the Constitution.

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.

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 funda-
mental idea of the law and yet escape punishment unless
condemned by sound popular feeling, or whether it be, as sug-
gested 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

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A./B. 65.—DANZIG LEGISLATIVE DECREES 53

Public Prosecutor) believes to be in accordance with the fun-
damental idea of the law, and what the judge (or the 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 opmion 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. Accord-
ingly, 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.

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 indica-
tion of the limits beyond which their acts are punishable.

*

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

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A./B. 65.—DANZIG LEGISLATIVE DECREES 54

by the law of June 24th, 1933; and lastly that law may itself
be contrary to the Constitution.

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 Con-
stitution ; 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.

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

Certain principles emerge from the articles of the Consti-
tution of Danzig. In the first place it is to be observed that
the Constitution endows the Free City with a form of govern-
ment 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”
(Grundrechie 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.

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, 6 and /).

Danzig’s character as a State governed by the rule of law
(Rechisstaat) is also and more particularly revealed in Part II
(Art. 71 € sqg.) of the Constitution, which deals with funda-
mental rights and duties. In this case only the fundamental
rights need be considered.

Provisions concerning such rights occur in most of the
constitutions drawn up since the beginning of the xixth cen-
tury. They are designed to fix the position of the indi-
vidual 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.

A./B. 65.—DANZIG LEGISLATIVE DECREFS 55

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 admin-
istration of justice and the conduct of public affairs [Ver-
waltung).’ 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.

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.

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. 70).

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,

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A./B. 65.--DANZIG LEGISLATIVE DECREES 56

were imposed in virtue of a law and therefore complied with
the requirements of the Constitution.

The Court cannot accept this argument. The word “law”,
in these articles of the Constitution, means not merely a legis-
lative 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 individ-
ual by according him certain fundamental rights (Grundrechte).
The rule that a law is required in order to restrict the liber-
ties 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 char-
acter, 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.

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.

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

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A./B. 65.—DANZIG LEGISLATIVE DECREES 57

is to protect the individual against the State: this object finds
its expression in the maxim Nulla pena 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 pena. 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 indi-
vidual ; 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.

To sum up, the Court holds that the decrees of August 29th,
1935, are not consistent with the guarantees which Part IT 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 IT of the Constitu-
tion is founded.

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.

Done in English and French, the English text being authori-
tative, 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) À. HAMMARSKJOLD,

Registrar.
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A./B. 65.—DANZIG LEGISLATIVE DECREES 58

Count Rostworowsk1, 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.

(Imtialled) C. J. B. H.

(Initialled) A. H.

21

DECLARATION BY COUNT ROSTWOROWSKI.
{ Translation. |

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, incon-
sistent with the Constitution of the Free City of Danzig and
do not violate any of its provisions or conflict with any of
its principles.

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.

22