German Military Courts in Greece Case

• Jurisdiction: Grecia
• Date: 01 January 1945
• Docket Number: Case No. 149
• Court: Court of Appeal (Athens)

Greece, Court of Appeal of Athens.

Case No. 149

German Military Courts in Greece Case.

Military Occupation — Legal Position of the Occupant — Conditions Necessary for Transfer of Sovereign Rights to Occupying Authorities — Scope of Such Transfer — Judgments of German Military Courts set up by Occupant on Offences Alleged to have been Committed by Greek Nationals — Nature of such Judgments — Conditions of Validity — Acquittal by German Military Court — Absence of Jurisdiction of Ordinary Courts to Pass Judgment in the Same Criminal Cause.

The Facts.—During the German occupation of Greece the occupation authorities gave their military courts jurisdiction over certain civil offences, including thefts of railway material, committed by private individuals. Certain civilians, Greek nationals, were accused of having stolen such material. They were brought before a military court set up by the occupant, which found them not guilty. After the liberation of Greece the question arose whether these persons could be tried anew for the same offence, but by the ordinary Greek courts.

Held: that the accused could not be tried again.

The Court adopted the arguments of its Attorney-General that civil courts had no jurisdiction to try offences already dealt with by the German military courts, whose decisions are regarded by the Greek courts as res judicata.

The Court said: “The judicial powers of a given State—that is to say, the fundamental and categorical right to administer justice according to its own laws—is a necessary consequence of its sovereignty. Hence it follows that this jurisdictional right is born, disappears, expands and contracts with sovereignty itself. [The Court referred to Bonfils, Droit international public, vol. I, s. 337; Calvo, s. 348.] According to the principles of international law, in the event of the military occupation—occupatio bellica—(within the meaning given to that conception by Article 42 of the Hague Regulations of 1907) of territory belonging to a given State, as happened in our own country, sovereignty is not extinguished, and hence cannot be regarded as ceded or transferred. On the other hand, this sovereignty continues to exist juridically—de jure—and is merely suspended during the military occupation; if after such occupation sovereignty is re-established and restored, it is deemed never to have been interrupted. … During the suspension of sovereignty, the army of occupation exercises de facto certain sovereign rights, not as...