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Case:
BVerfGE 4, 322 1 BvR 284/54Austrian Nationality
Date:
12 May 1987
Judges:
Dr. Wintrich, Ellinghaus, Dr. Scheffler, Dr. Heiland, Dr. Heck, Dr. Scholtissek, Wessel, Ritterspach, Lehmann
Copyright:
© Nomos Verlagsgesellschaft

HEADNOTE:

All persons who would have been Austrian citizens on 27 April 1945 if the Austrian Nationality Law had remained in force without interruption have, as of that date, lost their German nationality resulting from the "annexation" (Anschluß).

Judgment of the First Senate of 9 November 1955 -- 1 BvR 284/54 --
in the proceedings relating to the constitutional complaint by F. contesting his extradition to Austria.

DECISION:
The constitutional complaint is hereby rejected.

EXTRACT FROM GROUNDS:I.
The Federal Ministry of Justice of the Republic of Austria requested the extradition of the complainant on the charge of repeated larceny committed on 21 October 1952. By way of judgment of 18 June 1954, the Regional Court of Appeals (Oberlandesgericht) in Celle ordered confinement pending extradition, suspending execution of this, however, in exchange for bail. On 13 July 1954, the court in Celle granted leave for extradition.

With his constitutional complaint, the complainant challenges the judgments of 18 June and 13 July 1954. He contends that he continues to possess German nationality, which he acquired in 1938 by the Anschluß of Austria into the German Reich. The challenged judgments are therefore alleged to violate Art. 16(2), first sentence, of the Basic Law, according to which no German may be extradited to a foreign country.

The Federal Minister of the Interior considers the constitutional complaint to be unfounded, since the complainant lost German nationality on the date of reestablishment of the independent state of Austria, i.e., on 27 April 1945.

...

II.

The history of the complainant's life reveals the following picture: He was born on 12 February 1927 as the child of Austrian parents in Waldzell in Upper Austria; up until his conscription into the military in 1943, he lived in Austria. As a member of the German Armed Forces (Wehrmacht), he was wounded in November 1944 and sent to a military hospital near Berlin. At the close of the War, he was captured by the Americans, this being, according to details provided by him in oral pleadings, in the vicinity of Wiesbaden; following his release, he left Wiesbaden for Austria, where his mother still lives today. On the contrary, in questioning by the Department of Public Prosecution at the Regional Court (Landgericht) in Hagen on 21 September 1951, he stated that he had been transferred to an Austrian military hospital prior to the end of the War, where he was subsequently captured. Upon his release, he repeatedly changed his place of residence, with the exception of a one-year stay in France beginning in mid-1946, between Austria and Germany. He was sentenced in both countries a number of times -- in Austria, on 9 November 1945, in January 1946, on 9 July 1948, on 10 October 1950 and on 19 April 1951, and in Germany, on 5 May 1950, on 24 October 1951 and on 5 November 1951. The complainant escaped from Austrian imprisonment in May 1946 and in May 1951 and fled to Germany. On 6 June 1952, he was extradited to the Federal Republic of Austria for execution of sentence.

Since 23 October 1952, he has once again resided in Germany, living since 2 February 1953 in Visselhövede, in the county of Rotenburg/Hanover.

During questioning on 21 September 1951 and 23 November 1951, the complainant stated that he was Austrian. On 25 April 1953, he received as "stateless person" an alien's passport from the County of Rotenburg. During a judicial examination at the County Court (Amtsgericht) in Rotenburg on 29 May 1954, he stated that he had been in Germany for the entire time following the War and had also applied for a determination that he possessed German nationality. He stressed to the court in Rotenburg on 25 June 1954 that he considered himself to be German and since 1945 he had only resided in Austria for the purpose of visits; he reiterated these assertions before the Federal Constitutional Court during oral pleadings.

III.

The constitutional complaint is admissible. . . . (elaboration by the Court).

IV.

The constitutional complaint is unfounded.

1. By way of the Anschluß of Austria, the complainant acquired German nationality.

This acquisition is based on the de facto change of sovereignty with respect to Austrian national territory, which aimed at, and actually resulted in, the complete incorporation of Austria into the German Reich [cf. Art. 1 of the Act on the Reunification of Austria with the German Reich (Gesetz über die Wiedervereinigung Österreichs mit dem Deutschen Reich) of 13 March 1938, RGBl. I, p. 237]. This is also the apparent basis for the Ordinance on Nationality in the State of Austria of 3 July 1938 [Verordnung über die Staatsangehörigkeit im Lande Österreich, RGBl. I, p. 790; see, e.g., §§ 3(1), 4(1)]. It is irrelevant for the acquisition of nationality whether the Anschluß was consistent with or in violation of international law [BVerfGE 1, 322, 330].

2. The complainant nevertheless lost German nationality with the reestablishment of the Republic of Austria on 27 April 1945.

a) On 10 July 1945, the Republic of Austria enacted the Act on the Transition to Austrian Citizenship [Staatsbürgerschaftsüberleitungsgesetz, StGBl. 1945, 81]. According to § 1 of the Act:
(1) Austrian citizens are, as of 27 April 1945,
a) those persons who possessed Austrian federal citizenship on 3 March 1938;
b) those persons who in the period from 13 March 1938 to 27 April 1945 would have acquired federal citizenship through legal succession from an Austrian citizen (descent, legitimation, marriage), had the Federal Act of 30 July 1925, BGBl. Nr. 285, on the Acquisition and Loss of State and Federal Citizenship remained in effect without interruption in the version in force on 13 March 1938;
all of these persons, however, only when no circumstances arose with respect to their person before 27 April 1945 that are connected with the loss of federal citizenship in accordance with the provisions found in sec. b of the above-mentioned Act.

(2) All persons who are to be treated as "illegal" under the interdicting law are not covered by the acquisition of Austrian federal citizenship pursuant to para. (1).

Accordingly, as of 27 April 1945, all persons are Austrian citizens who would have been Austrian citizens on that date had Austrian nationality law remained in force without any interruption. It is not disputed that such persons, if living in Austria, lost their German nationality as of that date. There are also decisions of German courts that hold that the same applies to those Austrians who are living neither in Germany nor in Austria or who moved from Germany to Austria after 27 April 1945.

The issue is disputed with respect to Austrians who have been permanently resident in Germany since 27 April 1945. Widely held opinion, found in the literature as well as in case law, assumes that persons in this category have not lost their German nationality. This view has been adopted, in particular, by the Federal Administrative Court [BVerwGE 1, 206], which has examined the question of whether such a loss might result from internal German law or occupation law or whether it can be inferred from a general rule of international law, either for all cases of state succession or at least for the special case of severance of part of a territory (emancipation). The Federal Administrative Court determined that such positive provisions and rules do not exist and thereby inferred that there was no legal aspect that would justify the assumption that Austrians living in Germany since 1945 lost their German nationality with the reestablishment of the Federal Republic of Austria. According to Art. 16(1), second sentence, Basic Law, a law is required for this, possibly upon conclusion of a state treaty with or without the inclusion of a right of option.

b) The Federal Constitutional Court holds the conclusions of the Federal Administrative Court to be ill-founded. However, the Federal Administrative Court was correct in its determination that the issues of nationality arising from the severance of Austria from the German Reich's union of states have not yet been regulated by German law. As well, occupation law does not make any express provision for this matter, and a general rule of international law is not to be found either for all cases of state succession or for the present case of reestablishment of a state that several years before had lost its independence and was incorporated into a neighboring state ("disannexation").

This does not, however, rule out that the loss of German nationality for Austrians might follow from a different legal principle. In fact, upon consideration of the historical political relations and interpretation of the conduct by the parties in the reestablishment of the Federal Republic of Austria, the conclusion is unavoidable that all former Austrians have, with the reestablishment of the Federal Republic of Austria, ipso facto lost their German nationality acquired by way of the Anschluß.

The will to reestablish the country's political independence, which was eliminated by the National-Socialist government, was never extinguished in Austria; during the War, this will was reinvigorated by the repeated declarations of the Allies that the reestablishment of Austria was one of their objectives in the War. This explains why directly following the occupation of Vienna, the leaders of the reformed antifascist parties proclaimed the reestablishment of an independent Austrian state and set up a provisional government without waiting for corresponding measures from the Occupying Powers. The Proclamation of 27 April 1945 termed the Anschluß to be an annexation that was forced upon the Austrian people by way of wartime occupation. With reference to the Moscow Declaration on Austria of 30 October 1943 and the announcement by the Tripartite Powers at the conference in Crimea on 11 February 1945 [reproduced in Verosta, Die internationale Stellung Österreichs 1938 bis 1947, pp. 52-53, 55 ff.], the reestablishment of the democratic Republic of Austria was proclaimed in the spirit of the 1920 Constitution and the Anschluß declared to be null and void. At the same time, a provisional government was set up and -- subject to the rights of the Occupying Powers -- entrusted with complete legislative and executive powers. All military, civil and personal pledges made to the German Reich were declared to be void and non-binding and all Austrians once again placed in a relation with the Republic of Austria involving civil duty and loyalty.

This Proclamation clearly demonstrates that the Republic of Austria was to be reestablished, i.e., that the Anschluß was to be cancelled. This is also the way in which this process was perceived throughout the world; it was considered to be such a self-evident consequence of the end of the War that neither the Occupying Powers nor the state entity coming into existence in Germany saw reason to announce officially the "severance" of Austria from the German Reich or even to reinforce this with a formal repeal of the Reich laws enacted via the Anschluß. These laws were correctly viewed as having become overtaken by political developments and thus meaningless.

This is the point of departure for a proper analysis under international law of this process and thus also of the consequences for the law of nationality associated with it: at issue here is not a typical severance of a part of a state from the whole of it (emancipation) but rather a very special case of state succession, an act to restore the status quo ante. The logical result of this is that the state of Austria, reestablished within its previous borders, may not be deprived of its former people. But it also follows from this that the persons belonging to this group are, from the date of the new formation of the Austrian state, no longer able to be claimed by Germany as citizens, such that they must have lost German nationality as of this date. This result is only logical, because the period of time since the Anschluß is so short that it is impossible to say that the Austrian people were completely absorbed by the people of the German Reich. In other words, it is relatively easy to determine the category of persons to be reintegrated into Austrian citizenship. The result is also logical for the reason that the new Austrian state in fact lays claim to its former people, such that there is no danger that the loss of German nationality would mean statelessness for these persons.

The following result is reached: as of the date of the reestablishment of the independent State of Austria, the latter is once again exclusively assigned the people formerly belonging to it prior to the Anschluß. Its citizens accordingly lost their German nationality resulting from the Anschluß of Austria -- regardless of where they resided on the day of the declaration of independence -- in the same manner as they ipso facto acquired it on 13 March 1938.

3. The intention of the complainant to be a German is irrelevant in view of the matters set out here. There is no general rule of international law according to which, upon the emergence of new states in the course of severance, the affected population must be given the opportunity of choosing between the nationality of the new state and that of the old one (option). Even less can it be inferred from the above-described special nature of the disannexation of Austria that the loss of German nationality does not affect those persons who wish to retain it.

Nevertheless, one might raise the question of whether the extradition of the complainant must be viewed as impermissible in light of special considerations. If the complainant were to be extradited on the basis of the present formal state of the law, this might be contrary to good faith. This would particularly be the case if it were certain that a ruling by law or treaty is to be expected in the near future that would offer him the legal possibility of rescinding the involuntary loss of German nationality, such that he would subsequently have to be recognized as having been in uninterrupted possession of German nationality. This concept could lead to the situation where in applying Art. 16(2), first sentence, Basic Law in the extradition proceedings, the complainant is at this point to be treated as a German. In this regard, consideration must be given to the draft of a law presently before Parliament for the settlement of German-Austrian nationality questions [Bundestag, 2 d electoral period, Drucksache 1391]; this would give all Austrians who have permanently resided since 26 or 27 April 1945 in the territory of the German Reich as it existed on 31 December 1937, the right to express their desire to reacquire German nationality with retroactive effect.

Although the complainant has repeatedly asserted his German nationality and also expressed the intention of reacquiring it if need be, the Federal Constitutional Court is convinced that he has not fulfilled the requirement of "permanent residence." That which was able to be determined in oral pleadings with regard to his life's history does not justify the assumption that Germany clearly formed the center of his life following 1945, as would be required by the term "permanent residence." In other words, the complainant will, in all likelihood, not be affected by the foreseen rule. If he wishes to acquire German nationality, he is only able to do so by way of naturalization.

It is thus established that the complainant is no longer a German national and that his extradition is not opposed by Art. 16(2), first sentence, Basic Law, even should this be able to be applied.

The constitutional complaint is thus unjustified.

Judges: Dr. Wintrich, Ellinghaus, Dr. Scheffler, Dr. Heiland, Dr. Heck, Dr. Scholtissek, Wessel, Ritterspach, Lehmann

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