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political crimes. But in the case of Dato's assassination we have an isolated crime having no connection with a political act. At any rate, it cannot be said that the extradition is legally inadmissible if such a connection is nevertheless assumed. Rather is extradition justified in this case because of the special seriousness of the crime. The real character of the deed is described by the expression "social" or "anarchistic crime." It is one of those deeds aiming at the forcible destruction or revolution of present human society, and hence opposed to every form of government.
For the practise of extradition among the states, the embassy continued, such deeds are increasingly considered as common by the writers on international law (Bluntschli, Martens, Wahlberg, Kohler, Seuffert, Lammasch, Langhard, Garraud, Vidal, Diena). The practise of the English and Swiss courts has accepted these views. In state treaties, too, extradition of anarchistic criminals has recently been stipulated in a number of instances (e. 9., Articles 2 and 13 of the draft of a treaty drawn up on January 28, 1902, at the Second Pan American Conference in Mexico; Article 4 of the extradition treaty between Spain and Cuba of 1905; Article 3 of the extradition treaty between the Central American States of December 20, 1907; Article 3 of the extradition treaty between the German Empire and Paraguay of November 26, 1909; Article 3 of the extradition treaty between the German Empire and the Ottoman Empire of January 11, 1917.)
The counsel for the fugitives declared their extradition to be inadmissible. This declaration relied especially on Article 6, paragraph 2, of the GermanSpanish extradition treaty, which reads:
An attack against the head of a foreign government or against members of his family shall be considered neither as a political offense nor as one connected with such an offense, if such attack bears the character
of homicide, murder, or poisoning. The Spanish Premier, it was said, could not possibly be considered as the head of a foreign government. The exception provided in the treaty is, therefore, not applicable in the present case. The assassination of Dato must consequently be considered a political offense. Counsel also submitted an expert opinion of Dr. Hans Wehberg taking the point of view that the extradition of the prosecuted persons was legally inadmissible. Wehberg argued that the attack upon Dato aimed to shake the authority of the Spanish state and that the participants endeavored to overthrow the constitution of Spain. Extradition can therefore be contemplated only if the theory is adopted that anarchistic crimes should never be considered political. But this theory has hitherto been strongly opposed in Germany. Nor has it been sufficiently adopted as yet in other places to warrant its incorporation into international law. The fugitives should, therefore, as political offenders, enjoy the right of asylum.
* This expert opinion is published in the weekly periodical Der Sozialist, Vol. 8, nos. 8-9,
From the very beginning, the German parliaments showed a lively interest in the question of the extradition of the Dato assassins. Especially in the Reichstag, the ministers concerned were given occasion to express themselves on the various questions which stirred the public. As early as November 5, 1921, a few days after the preliminary arrest of the fugitives, several members of the Independent Social Democratic Party and the Communist Party of Germany in the Reichstag submitted the following question to the government.
The syndicalists Fort and Concepción, prosecuted by the Spanish Government, have been taken into custody by the political department of the Berlin police.
According to press despatches from Madrid, the Spanish Government has already made a request for extradition. According to Berlin press reports, there are "doubtful points" in the minds of officials with regard to the German-Spanish extradition treaty.
From the text of this treaty it appears clearly that in formal law there is not the least occasion for extraditing the two syndicalists.
Is the German Government willing to order the release of the two syndicalists?
The German Government made the following oral declaration on November 18.6
The German Government immediately passed the request for extradition presented by the local Spanish Embassy to the Prussian State Ministry. The latter is at the present time engaged in studying
As long as this examination is pending, a release is out of the question. On December 22, 1921, a Social Democratic delegate of the Reichstag inquired of the German Government."
According to newspaper reports, it is intended to extradite to the Spanish Government the Spaniards charged by the Spanish Government with participation in the assassination of Premier Dato.
Are these reports true? How does the German Government plan to justify the extradition of these political offenders? Has it, assuming the correctness of the report, taken steps to hinder a punishment of the extradited persons which would be opposed to the feelings of large elements of the people in Germany?
A written reply is sufficient. The Foreign Office did not answer until March 1, 1922, when it made the following communication: 8
The request of the Spanish Government for extradition of the two Spanish nationals Nicolau Fort and Joaquina Concepción, prosecuted
for participation in the assassination of the Spanish Premier Dato, was Printed documents of the Reichstag, 1920-21, No. 2929. & Stenographic Reports, p. 5065. ? Printed documents of the Reichstag, 1920-21, No. 3278. 8 Ibid., 1920-22, No. 3741.
based on Article 1, No. 1, of the German-Spanish extradition treaty of May 2, 1878 (Imperial Law Gazette, p. 213).
The request was acceded to after a detailed examination of the facts of the crime charged against the fugitives had shown that none of the exceptions provided for in the treaty which exclude extradition apply to the case. In this connection, attention may be called to the exhaustive statements of fact and law made by the Minister of Justice in the Reichstag sessions of February 23 and 24 in the discussion of the budget of the Ministry of Justice.
Accordingly, the extradition could not be made dependent upon any restricting conditions. But upon communication of the granting of the extradition, it was expressly declared to the Spanish Embassy that it is the urgent desire of large elements of the German people that a possible death sentence pronounced against the extradited persons should not
be executed. As a matter of fact, the extradition of the married couple Fort was granted by the German Government in the middle of February, 1922, and carried out by the Prussian Government. The French Government had already previously sanctioned the transit of the prosecuted persons through French territory. Consequently, the conveyance to Madrid took place by way of France. Shortly before the discussion of the budget of the Ministry of Justice this had become known to the public. In the Reichstag a deputy of the Communist Party excitedly demanded that the government should justify the extradition immediately and that the Reichstag should forthwith express its opinion with regard to the extradition. The Minister of Justice declared himself ready to discuss the extradition of the two Spaniards in connection with the debates on the budget of his ministry.
The deputies who spoke on the budget on February 23 and 24, 1922, discussed the extradition case in more or less detail. The Majority Socialist leader declared that the extradition was not in keeping with the expectations of his party friends, but that he would refrain from criticism until he knew for what reasons the government reached this regrettable decision, namely, of refusing the right of asylum to the Spaniards. The speaker of the Independent Social Democratic Party, who had acted as counsel for the prosecuted persons, made a strong protest against the extradition. He declared that the government had disregarded the legal scruples arising against the extradition out of the German-Spanish treaty; that it had ignored the expert opinion of Dr. Hans Wehberg and the demonstrations of protest made by the socialist workingmen; that even the party friends of the Minister of Justice disapproved of the extradition; that it is imperative that a German law should define the conditions of extradition. Before the close of the session, the Minister of Justice made the following declaration, as he had announced he would:
The right of asylum, the eminent right of the state to offer prosecuted persons a place of refuge, must be especially sacred to a democratic
Stenographic Reports, p. 6042.
republic in which persons previously prosecuted are themselves members of the government. The German Reich must feel most scrupulously bound to preserve its right of political asylum, but it must feel no less bound to observe most scrupulously its contractual obligations, in order to prove that, for the German Reich, treaties, including extradition treaties, are not scraps of paper, especially at the moment when it is about to draw from a similar legal situation consequences identical to those drawn by Spain with regard to us, namely in the question of the extradition of the Erzberger murderers.
In this extradition we are unfortunately dealing, not with a question of human sympathy and still less with a question of politics. We are dealing with a question of law, of a binding treaty, of international good faith. Allow me to present to you very calmly and objectively the legal situation.
The extradition took place on the basis of the German-Spanish extradition treaty of 1878, the 6th article of which reads:
“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 a common crime or offense shall therefore in no case
be tried or punished in the state to which he has been extradited for a political crime or offense committed by him prior to the extradition, nor for an act connected with such a political crime or offense.'
Hence you see that the exception to the duty of extradition covers two groups of cases, on the one hand political offenses, and on the other hand offenses connected with such political offenses.
The political offenses, the first group, must be interpreted in the narrow sense of this definition. Political offenses in this narrower sense are offenses committed directly against the state, such as high treason, treasonable crimes, hostile acts against friendly states. (Interruptions on the extreme left: Where do you get that? Where is that written?).I shall reply to you presently; it will appear from the connection.-It would be useless to mention the connected deeds beside the political offenses if these political offenses were to be understood in a broader sense, so that the latter would include the former.
We now come to the second group of acts, those connected with a political crime or offense. The question arises: where is the political crime or offense with which the deed of the alleged murderers of Dato is connected? Where is the actual or planned crime of high treason of which this murder forms a part? According to the description which not only the Spanish Embassy, and in connection with it the German Embassy, but also the communist press has given, we are not concerned with a deed which is a direct or indirect preparation for a definite crime of high treason, but a deed which, to be sure, was committed for a political motive, for the motive of political revenge, but not for a political purpose. Connected deeds are only such deeds as serve the purpose of a political crime, whether this crime be actually carried out or merely planned. (Repeated interruptions at the extreme left).
Ladies and Gentlemen, I have the notion that these juridical explanations by me, who during my short incumbency as minister have already gained quite a reputation among you as a reactionary, are not making any particular impression upon you. But allow me to refer
to a scholar of the importance of colleague Schücking, whose authority must be unimpeachable for you, too.
Now a little while ago someone interrupted me by mentioning the expert opinion of Dr. Wehberg, whom I esteem highly. But this opinion misses the decisive question entirely. It endeavors to show that not every anarchist and every assassin should be extradited; in other words, it argues against a point of view which does not form the basis of our conception at all. The whole argument of Webberg, who stands alone with his point of view, disregards our point of view entirely.
Ladies and Gentlemen! I readily admit that the result which the government had to reach is exceedingly regrettable not only for humane but also for juridical reasons. Let us express it drastically. If these alleged assassins of Dato had gone further, they would have fared better. If their deed had appeared to be part of a conspiracy of high treason, their extradition would have been impossible. But since their deed was not the realization of a developed treasonable intent, and consequently not a deed connected with a political offense, the extradition had to take place.
Precisely this case will give us occassion to revise our laws of extradition. An extradition law is already in preparation which endeavors to define the conception of a political offense and on which our future extradition treaties will have to rely and on the basis of which the existing extradition treaties may be revised.
An unbending law has obliged us to extradite the alleged assassins of Dato. But we have endeavored to emphasize the principles of humanity as far as possible, over and above the rigid demands of the treaty. The solemn wish of the government has been expressed to the Spanish Ambassador that a possible death sentence against the two Spaniards may not be executed. I believe that that is not only the wish of the government, but also the desire of large elements of the German people, who condemn the murder, regardless of the causes for which it may have been committed, as far as it is not connected with a willingness for self-sacrifice, but who do not wish to see those who commit a crime because of their conviction, no matter how misguided this conviction may be, placed on a par with common murderers.
On the following day the discussion of the budget of the Ministry of Justice was continued. Again many of the speakers touched upon the extradition case. The deputy of the Centre Party was of the opinion that the legal explanations of the Minister of Justice were not open to any justified objections. The speaker of the German Democratic Party also declared the statements of the Minister to be correct. On the other hand, the deputies of the Communist Party opposed the speech of the Minister. Deputy Dr. Herzfeld said among other things:10
The German-Spanish extradition treaty stipulates in Articles 1 and 2 the crimes and offenses, common crimes and offenses, on account of which extradition may take place. In Article 6 we read:
“The provisions of the present treaty are not applicable to such persons as have become guilty of any political crime or offense."
Stenographic Reports, pp. 6072–73.