System of Common Courts in the Free City of Danzig (1920-1939 Part I

ORIGINAL ARTICLE

System of common courts in the Free City of Danzig (1920-1939 Part I.

Ustrój sądów powszechnych w Wersalskim Wolnym Mieście Gdańsku (1920–1939) część I.

Article history: Received: 25.09.2016 Accepted: 27.011.2016 Published: 30.12.2016 prof. dr hab. Tadeusz Maciejewski Abstract: This article presents partial results of wider research conducted on the his- Professor Tadeusz Maciejew- ski (born Aug 28th, 1952)is the tory of the general judiciary in the Free City of Danzig. They contributed to author of around 200 publicatons, the deepening of knowledge in the examined subject matter. The legal bases incuding several monographs for the functioning of the judiciary in FC of Danzig were determined, and the and textbooks. He is an expert on the history of law and the knowledge about the structure of the judiciary, the position of judges, and the state system, head of the Chair of competences of various courts (The Supreme Court, the National Court with Legal History at the University of Gdańsk, and recipient of numer- its departments, clerical court, the Court of Lay Assessors, Court of assizes ous awards and distinctions. and juvenile courts) was broadened.

During the transitional period after the entry into force of the Treaty of Versailles in the field of administration, judiciary and police, the former German apparatus was still existing. This status persisted even after the adoption of the Free City of Danzig Constitution on June 14, 1922. Later, however, the justice system of the Free City of Danzig from 1920-1939 referred directly to the German model, originating from the Second Reich and the Weimar Republic, taking into ac- count the relevant changes. By regulating the issue of the judicial system in the Free City of Danzig, systematic amendments of standard acts were made, adjusting them to Gdansk conditions.

Finally, the issues of jurisdiction of the Danzig courts were settled in the Law on the Courts of January 18, 1927, dividing the common courts into general and specialized ones. This unified the judicial system by introducing only state judiciary, eliminating private and clerical judiciary in relation to civilians.

Keywords: Court, The Free City of Danzig, Judicial System 148 Pol Law Rev, 2016 Vol. 2 (1), p. 148-168 DOI: 10.5604/01.3001.0009.7997 System of common courts in the... ORIGINAL ARTICLE

Streszczenie: W niniejszym artykule zaprezentowane zostały częściowe wyniki szerszych ba- dań prowadzonych nad historią sądownictwa powszechnego w Wolnym Mie- ście Gdańsku. Przyczyniły się one do pogłębienia wiedzy w zakresie badanego zagadnienia. Określono podstawy prawne funkcjonowania sądownictwa w WM Gdańsku, a dokonując ich analizy poszerzono wiedzę na temat struktury są- downictwa, pozycji sędziów oraz kompetencji różnego rodzaju sądów: Sądu Najwyższego, Sądu Krajowego z jego wydziałami, sądów urzędniczych, ławni- czych, przysięgłych oraz sądów dla nieletnich.

W okresie przejściowym po wejściu w życie traktatu wersalskiego w zakresie administracji, sądownictwa i policji pozostawiono dawny aparat niemiecki. Stan ten utrzymywał się nawet po uchwaleniu konstytucji WM Gdańska 14 czerwca 1922 r. Później jednak wymiar sprawiedliwości Wolnego Miasta Gdańska z okre- su 1920-1939 nawiązywał bezpośrednio do wzorca niemieckiego, wywodzą- cego się z II Rzeszy oraz Republiki Weimarskiej, z uwzględnieniem stosownych zmian. Regulując kwestię ustroju sądownictwa w Wolnym Mieście Gdańsku do- konano systematycznych poprawek aktów wzorcowych, dostosowując je do gdańskich warunków.

Ostatecznie kwestie jurysdykcji sądów gdańskich unormowano w ustawie o ustroju sądów z 18 stycznia 1927 r, dzieląc sądy powszechne na zwyczajne oraz szczególne. Ujednoliciło to ustrój sądowy, wprowadzając tylko sądownic- two państwowe, likwidując przy tym sądownictwo prywatne i duchowne w sto- sunku do osób cywilnych.

Słowa kluczowe: sąd, Wolne Miasto Gdańsk, system sądownictwa

Legal basics on 20 May 1898.1 Hierarchically, the lowest instance were the clerical courts (Amtsgerichte) 2. The courts of appeal were the national courts, In its structure, the justice system of the Free also called the district courts (Landesgericht) 3. City of Danzig (hereinafter FC of Danzig) refers directly to the German model, originating from 1Gerichtsverfassungsgesetz von 27. Januar 1877 in der Fassung the Second Reich and the Weimar Republic. der Bekanntmachung vom 20. Mai 1898, Reichsgesetzblatt 1898, s. 371 i n.; (RGBl.)

In the Second Reich the common court system, 2Gerichtsverfassungsgesetz…, § 22–24. as previously mentioned, was defined by the law of 27 January 1877, considerably revised 3Ibidem, § 58–78. 149 Polish Law Review www.polishlawreview.pl ORIGINAL ARTICLE System of common courts in the...

Next instance was the national higher courts with: judicial independence (Article 61), ban on (Oberlandesgerichte), which performed cassa- the creation of exceptional courts (Article 62), tion functions on the judgments of the clerical selection of judges (Article 64), deprivation of courts, and appeals from the national courts4. their office or transfer (Article 65), constitution All these were the bodies of individual coun- and jurisdiction (Article 69), which was sup- tries, and not the whole Reich. The Supreme posed to be defined in a separate law9. Court, in addition, the one for the whole coun- try was Reich Court (Reichsgericht) 5, often re- Initially, the German law on the organization ferred to in Polish legal and historical literature of the judicial system of 1877/1898 was intro- as The Reich Tribunal6. duced in FC of Danzig. It took place on April 23, 192110 (Gesetz űber Abänderung der Ger- In the Weimar Republic, a unified judicial organi- ichtsverfassung). It provided only nine amend- zation was defined by the law of March 22, 1924, ments in relation to the law of the Reich, but generally modelled, although with some chang- the consolidated text was not printed then. In es, on the structure of justice in the Second Re- subsequent years, further amendments were ich. The most important reform was the abolition made. On 18 January 1927, finally, by a sepa- of higher national courts due to the change of the rate regulation, a greater reform of the Dan- state system. As a result, a three-instance pat- zig’s judiciary was conducted (Verordnung zur tern was created: the clerical courts, the National Abänderung des Gerichtsverfassungsgesetz). Courts and the Tribunal of the Reich7. It consisted of 17 titles, covering a total of 201 paragraphs, with the court system essentially FC of Danzig has duplicated this arrangement being covered by the first nine titles (§1 - 140), with minor amendments. Novum was merely while the others dealt with various issues re- the replacement of the Reich Court by the FC lated to the details of FC’s justice, e.g. lawyers, of Danzig’s Supreme Court. The general prin- Court writers, Court proceedings, court ses- ciples of the judicial system were laid down in sions and court holidays etc. the Constitution of 14 June 19228. Chapter VI: “Judiciary” was devoted to them. There were The consolidated text of the aforementioned a total of only six articles (61-66). They dealt regulation was also not officially printed. How- ever, it listed all the changes, included in 17 4Ibidem, § 119–124. acts (14 laws and 3 regulations). Of these issued were: one in 1920, two in 1921, five in 5Ibidem, § 125–141. 1922, five in 1923, three in 1924 and one in 6J. Bardach (red), Historia państwa i prawa Polski, t. IV, Od 1925. This apparent shortcoming, concerning uwłaszczenia do Odrodzenia państwa, Warszawa 1982, s. 602 i n.; J. Wąsicki, Związek Niemiecki i Druga Rzesza Niemiecka many other German laws, was only remedied 1848–1914, Poznań 1989, s. 487 i n. by Georg Voigt (Supreme Court Counsel) who printed the official version in 1927. In addition, 7Reichsgesetzblatt, Teil I, Nr 25, 1924 (Bekanntmachung der Texte des Gerichtsverfassungsgesetz und der Strafprozessordnung, Vom 22 März 1924). 9M. Podlaszewski, Ustrój polityczny Wolnego Miasta Gdańska w latach 1920–1933, Gdynia 1966, s. 196–198. 8Tekst niemiecki: Gesetzblatt für die Freie Stadt Danzig (dalej DGBl.), nr 30, 1922, a polski: Nowe konstytucje, pod red. J. Makowskiego, Warszawa 1925, s. 39–63. 10DGBl., 1921, nr 10, s. 39. 150 Pol Law Rev, 2016 Vol. 2 (1), p. 148-168 DOI: 10.5604/01.3001.0009.7997 System of common courts in the... ORIGINAL ARTICLE

he also published in his edition a table of con- June 1922 r.). Clerical staff of Danzig still united cordance, showing the difference between the compounds with the administration of the newly content in force in Germany and FC of Dan- formed Weimar Republic, which, moreover, al- zig11. Finally, it is worth noting that another 15 lowed the rules on obtaining citizenship, as a amendments were made between 1927 and result of which many Germans obtained official 1936. However, they did not have a special positions of both secular and clerical. Howev- meaning, concerning mainly minor issues12. er, there were attempts to counter it. The judicial system was the first one to be affected14. Jurisdiction. The structure of the Namely, on April 11, 1921, the law on the selec- judiciary tion of judges was passed15, and on April 23, 1921, the German law on the courts of 1877 and 1898 was significantly changed, which allowed In terms of territorial jurisdiction of FC of Dan- to loosen the existing close ties with the former zig, the whole area of clerical court in Gdansk Prussian judicial administration16. and partially clerical court in Sopot, Skarszewy and Kościerzyna, and from the district of land Jurisdictions of the courts of Danzig were final- court in Elblag the whole area of clerical court ly finalized in the Law on the Courts of January in Nowy Dwor Gdanski and partly in Malbork 18, 1927, in its second title (Gerichtsbarkeit) and Elblag were taken over13. with 10 clauses (§§ 12-21). According to it, the common courts were divided into general and During the transitional period, i.e. from the date specialized. The first included clerical courts of entry into force of the Treaty of Versailles (Jan- (Amtsgericht) National Court / Land (Landger- uary 10, 1920), the general government of crea- icht) and the Supreme Court (Obergericht), tion of the FC of Danzig (15 November 1920) thereby establishing tri-instance pattern. The took over the Englishman Reginald Tower, be- territorial jurisdiction of the latter two covered ing the plenipotentiary of the main powers and the whole area of FC of Danzig, while the head- administrator of FC of Danzig, from 11 February quarter of the Supreme Court was established 1920 also the High Commissioner of the League in Danzig17. The powers of the ordinary courts of Nations. On the other hand, in the area of was the settlement of all civil and criminal cas- administration, judiciary and police, the former es in the area of FC of Danzig, except within the German apparatus was still existing, holding its competence of administrative authorities and previous official functions. This status, instead administrative courts or specialized courts18. of a few weeks, persisted for many months, even after the adoption of the Constitution (14 14G. Voigt, op. cit, s. VI (przedmowa); M. Podlaszewski, op. cit., s. 27 i n.; E. Cieślak, Cz. Biernat, Dzieje Gdańska, Gdańsk 1975, s. 491 i n.

11G. Voigt, Danziger Gerichtsverfassung, Danzig–Berlin 1927, s. 15Richterwahlgesetz vom 11. April 1921, DGBl., 1921, s. 29 i n. 1–3.

16Das Gesetz vom 23. April 1921, DGBl., 1921, s. 39. 12Ibidem, s. 4–81; Anhang – Zusammenstellung… und des Gerichtsverfassungsgesetzes nach dem Stande vom 20 März 1936, Danzig 1936. 17Gerichtsverfassungsgesetz…, § 12.

13G. Voigt, op. cit, s. V (przedmowa). 18Ibidem, § 14. 151 Polish Law Review www.polishlawreview.pl ORIGINAL ARTICLE System of common courts in the...

In contrast, the law stipulated that specialized be governed by separate legislation settling pos- courts created for the settlement of matters of sible competence issues. In fact, this provision, the designated category inluded courts: taken directly from the German Law on Courts ◆◆settling civil disputes relating to discon- (1877/1898), was relevant to the Second Reich nection, consolidation, merging and di- and the Weimar Republic and not to the FC of viding of land and peasant ownership19 Danzig in which these problems belonged to the ◆◆municipal, in particular resolving prop- jurisdiction of the Supreme Court25. erty claims not exceeding 60 guldens20 ◆◆craftmanship21 Jurisdiction of FC of Danzig did not include ◆◆merchant22 certain persons having diplomatic immunity. All courts were exclusively national. This was Among them were the High Commissioner of connected with the total abolition of the private, the League of Nations (Article 103 of the Treaty non-state judiciary, although formally liquidated of Versailles), the chairman, members and pleni- in 1849 in Prussia, but its remnants in the form of potents of German-Polish-Danzig’s court of ar- municipal or patrimonial (rural) courts still oper- bitration for transit traffic if they did not possess ated here and there. As a result, the judicial sys- citizenship of Danzig and the President and tem became uniform. This state simultaneously members of the Commission for the Harbour contributed to the abolition of clerical judiciary and Waterways. This extraterritoriality also in- in relation to civilians, particularly in relation to cluded members of their families, staff of those matrimonial matters and earlier engagements23. institutions and servants being non-Danzig26 The creation of special courts was banned. Nor and non-German27 nationals. However, subject could anyone be deprived of justice in the court to the jurisdiction of Danzig were the officialls of appropriate for them (as it was in Article 62 of FC of Danzig, if exlusion of their responsibility the Constitution) 24. was agreed with other authorities28.

All courts resolved the cases in accordance with Judgeship the established course of the case and the material powers conferred on them. Possible disputes between the jurisdiction of the common courts The constitutional principle was the independ- and the administrative courts and offices were to ence of the judges. The term “independence” is quoted here using the translator’s of the Consti- 19Ibidem, § 14 pkt 1. tution of Danzig - J. Makowski’s terminology29. In practice, the German unabhängig could also be 20Ibidem, § 14 pkt 2; Allgemeinen Verdnung vom 24.3.1924, DGBl., 1924, s. 90.

25 Ibidem, § 17. 21Ibidem, § 14 pkt 3; Gewerbegerichtsgesetz vom 23.11.1922, DGBl., 1922, s. 519. 26Ibidem, § 18. 22Ibidem, § 14 pkt 3; Kaufmannsgerichtsgesetz vom 23.11.1922, DGBl., 1922, s. 530. 27Ibidem, § 19.

23 Ibidem, § 15. 28Ibidem, § 21.

24 Ibidem, § 16. 29Konstytucja WM Gdańska, art. 61. 152 Pol Law Rev, 2016 Vol. 2 (1), p. 148-168 DOI: 10.5604/01.3001.0009.7997 System of common courts in the... ORIGINAL ARTICLE

translated as “sovereignty”, which today is taken ing the attainment of their retirement age. It was for granted in the literature. It is understood as also possible to temporarily suspend them in any inadmissibility of any pressure on a judge to their office, but only on the basis of legislation reach a specific resolution of the case. This is a that was to be issued at a later date. The Judge guarantee of an objective judicial process. The Selection Committee could also, in the case of a same article of the Constitution also provided change of organization of the judiciary, decide to that judges in the exercise of their office were transfer a judge’s office or even deprive him of subject only to laws30. This meant that they were office, however, with full retention of pay. Finally, given the right to make judgments solely on the it has been established in the Constitution that basis of the laws in force. It was remarkable that the terms of appointment and the relationship of the rank of the constitution itself was not empha- the judges will be laid down in a law passed by sized here. All this provided a guarantee of the virtue of Article 49 dealing with the amendment neutrality and impartiality of judges. to the Basic Law, which required two readings separated by at least one-month period and by a The constitution then defined how to appoint two-thirds majority vote of the People’s Chamber judges, for what a special commission was es- at a quorum of 2/3 of the Members32. tablished, while announcing at the same time passing of a relevant law on this issue, which The constitutional principles contained in the took place on April 11, 1921. 31 It will be dis- Constitution were repeated and extended by cussed later in the text so for the time being we the Danzig Law on Court Organisation of 1921, will not be paying attention to this problem here. substantially revised in 192733. At the beginning there were described certain conditions to The principle of sovereignty was strictly connect- meet in order to take the post of a judge. Ac- ed with the office being held for life and the insol- cording to them, this office could be appointed vency of the judge. At the same time, however, to a person who passed two exams. The first the constitution enumerated situations in which after three years of university law studies, of a judge’s position could be vacated. This was which at least two semesters were to be held at done solely on the basis of a court ruling, in the a German university. Then, employment in the occurence of causes specified by law and in ac- legal profession or the court, or the prosecu- cordance with the provisions contained therein. tor’s office in the position of the applicant had As a result, on the basis of the Constitution, the to be taken for a period of three years. Only judge can even “against his will” be permanently after its completion a person could proceed to or for a specified period of time deprived of an the second, proper examination for a judge34. office and moved to another court or retire. It According to the Constitution which contained also envisaged the issuance of a law determin- a provision that men and women enjoy the same rights and the same obligations rest on

30Ibidem. 32 Ibidem, art. 65.

31Ibidem, art. 64; Szeroko o tym zagadnieniu napisał T. 33L. A. Hawranke, Verfassungsrecht der Freien Stadt Danzig, Maciejewski, Urząd sędziego w Wersalskim Wolnym Mieście Danzig 1931, s. 83 i n.; G. Voigt, op. cit., s. 4–81. Gdańsku w latach 1920–1933, Księga Jubileuszowa Profesora Andrzeja Sylwestrzaka, „Gdańskie Studia Prawnicze”, T. XXVII, 2012, s. 227–234. 34Gerichtsverfassungsgesetz…, § 3. 153 Polish Law Review www.polishlawreview.pl ORIGINAL ARTICLE System of common courts in the...

them, with the accession of both to the exami- The judge was appointed by a special Com- nations there were not allowed to differentiate mission. Its composition has been the sub- the candidates due to gender35. In addition to ject of acute disagreements still at the stage this, a candidate for the office of a judge could of drafting the constitution. The first project, be also all academics lecturing at the university of mayor H. Sahm’s authorship, who was a law faculties in Germany36. Moreover, all other conservative, presented in September 1919, judges working in the Reich area and citizens envisaged the appointment of judges for life of FC of Danzig were able to perform it37. by the Commission consisting of the President of the Senate, the members appointed by the Each judge, when employed, received a per- Senate, the Chairman of the Assembly of Citi- manent job corresponding to the rank of office zens (Bűrgerschaft), his deputy and other ap- and the scope of the duties entrusted to him. pointed by them members, chairmen of the Its detailed rules were defined by the Act on the most important offices (kamer) in the city, and amount of salary for civil servants of FC of Danzig five judges selected by their general assembly. of December 23, 1921, as amended on March All in all, it was a compromise proposal, how- 14, 192438. In turn, the retirement pension of ever, outlining the Senate’s superiority to the judges was regulated by the Law on the Pension Assembly of Citizens42. The reaction to it was of Retired Officers of February 23, 1926, which included in Social Democrats’ counterproject also determined that their transfer to a state of in October 1919 which provided for the lifetime suspension or rest came into force three months appointment of judges, but by the House of after turning 6539. Because of possible employ- the People (Volkskammer) at the request of the ment or retirement claims of the judges, the law Commission, which was to consist of one sen- granted them the right to enforce their claims, as ator, head of the office of justice, three judges was also apparent from the constitution40. elected by their congregation and two lawyers, also chosen by their general assembly43. It is worth pointing out that the general provisions on the court system did not concern the Both proposals were forwarded to an ad hoc judges of the commercial departments41. consultative committee appointed to support the proposal of mayor H. Sahm. The motivation

35Konstytucja WM Gdańska, art. 73, ust. 2; of it was the ability to subordinate judges to The Gerichtsverfassungsgesetz…, § 6. People’s Chamber that has a decisive vote in the Social Democrats’ project, and the Judge 36Gerichtsverfassungsgesetz…, § 4. Selection Committee was only the applicant. As 37Ibidem, § 3. a result, the choice could be influenced by political and party considerations rather than merit, 38Beamtendienst einkommengesetz vom 23.12.1921/ 14.3.1924 in der Fassung des Gesetz vom 21.11.1924, DGBl., 1924, s. 68 i n.

42Entwurf, einer Verfassung fűr die Freie und Hansestadt 39 Beamtendienst einkommengesetz vom 23.2.1926, GBL, 1926, Danzig, vorgelegt von Sahm, Danzig, den 7. September 1919, s. 39 i n. art. 53.

40 Konstytucja WM Gdańska, art. 92. 43Gegenentwurf zu einer Verfassung fűr die Freie Stadt Danzig vorgelegt von der Sozialdemokratischen Fraktion, 41Gerichtsverfassungsgesetz…, § 11. Danzig 6. Oktober 1919, art. 60. 154 Pol Law Rev, 2016 Vol. 2 (1), p. 148-168 DOI: 10.5604/01.3001.0009.7997 System of common courts in the... ORIGINAL ARTICLE

what could make the judges biased and de- tee. Namely, it created the posts of deputies pendent on the ruling parties, remaining beyond of both appointed and elected members. They all control. That argument was also recognized were members of the Commission only if a with time by the social democrats themselves, permanent member was unable to participate and even one of them (Hans Zint) proposed in its meetings, or had to ex officio be removed the appointment of judges not by the People’s from its session. The replacement took place in Chamber but by the Senate44. Then the discus- a strictly sequenced order. sion moved to the constitutional subcommittee, which ultimately opted for the selection of judg- Substitute members of the Committee ex of- es by a special commission, which was also re- ficio were: the vice president of the Senate, an- flected in the April 1920 draft45. The principles other senator, the deputies who replaced the set out there were not incorporated into the final president and two vice presidents in the Peo- text of the Constitution46. ple’s Chamber and the deputy of the Supreme Court’s President48. While the deputies of the According to the Constitution, the Judges Se- elected members of the Committee were nine lection Committee consisted of the following judges and six lawyers49. members: the President of the Senate, one Senator, the President of the People’s Chamber Whilst there were no problems identifying the (Volkstag) and two deputies, the President of the virilists, i.e. the members of the Committee sit- Supreme Court, three judges elected by them ting on its own motion, the elected members and two lawyers elected by the General Assem- and their deputies had to be appointed ac- bly. In total, there were 11 people. They can be cording to a suitable procedure. Its principles divided into members serving because of oc- were described in detail in the discussed bill. cupied office (six people) and elected members (five people). All in all, professional lawyers had And so the chosen Committee members were an advantage as they also included the Presi- elected at separate general assemblies of dent of the Supreme Court. Others were only judges and advocates. It could be attended politicians, whether they had graduated from by professionally active judges and auxiliary law school or not. It should be emphasized that judges and practicing attorneys. Its partici- the constitution in its details referred to a later pants were notified in writing, one week before bill. This bill was issued in April 192147. the deliberations. The assembly of judges was presided over by the President of the Supreme It has introduced new findings into the- or Court or his deputy, by lawyers and by the ganization of the Judges Selection Commit- President of the Bar Association, or his deputy. Each of the presidents of the congregation had at their disposal two parolets acting as the re- 44M. Podlaszewski, op. cit., s. 197. turning committee. The elections were secret, 45Entwurf… 1920, art. 61. they took place on special ballot papers, for

46Konstytucja WM Gdańska, art. 64. 48RWG, art. 4. 47Richterwahlgesetz (dalej RWG), art. 2, 3; M. Podlaszewski, op. cit., s. 197; L. A. Hawranke, op. cit., s. 84 i n. 49Ibidem, art. 5. 155 Polish Law Review www.polishlawreview.pl ORIGINAL ARTICLE System of common courts in the...

which the names of the candidates were to manent judges, including the President of the be entered, only in the number assigned to Supreme Court, as well as the auxiliary and the judges and lawyers. The mandate was re- commercial judges. In the course of the dis- ceived by those who received the most votes. cussion, however, doubts were raised as to In case of a tie, the mandate was assigned in whether to select the latter as well as those course of a draw50. appointed periodically, such as court assessors. Finally, the argument of the Committee The mandate of the elected members of the filling all the judicial offices won. The Commit- committee expired as a result of abdication, tee also had the power to decide on promo- acquiring the membership ex officio, staying tions and voluntary transfers. Its competence on leave for more than 6 months and losing also included matters of reorganization of the his / her position. In the event of such cases, a structure of the FC of Danzig judiciary and re- supplementary election should be held within sulting transfers of official duties as well as the two months51. The term of office lasted three office expulsions57. years. Before the end of the term of office, new elections had to be held. Renewal of the man- The competition for the judge’s position had date for subsequent terms was allowed52. to be announced four weeks before the deliberations of the Committee. The election was Members of the Judge Selection Commit- secret. In the event of a tie, lots were drawn tee were formally appointed by the President to decide58. The members of the Commission of the FC of Danzig’s Senate53 at the official who were personally involved in the matter meeting of this committee 54. He also chaired or could be affected by family circumstances the meetings. The dates of the meetings were were excluded from voting59. announced in writing, at least two weeks in ad- vance55. Presence of seven members was re- The Committee’s deliberations were not pub- quired to adopt a resolution. In the absence of lic and each member should keep silent about a quorum, a new meeting should be called. But both their conduct and voting60. quorum was not required anymore56. Attempts to make significant changes in the ac- Under the bill, the Committee selected all per- cepted structure of the Judges Selection Com- mittee, have been made since 1928. At that

50Ibidem, art. 6. time, the Senate, in which the majority held a socialist-centrist coalition, presented the draft 51Ibidem, art. 7. for the abolition of the Committee, while the judges were to be appointed by the Senate it- 52Ibidem.

53Ibidem, art. 9. 57Ibidem, art. 1.

54Ibidem, art. 16. 58Ibidem, art. 12.

55Ibidem, art. 9. 59Ibidem, art. 8.

56Ibidem, art. 10. 60Ibidem, art. 15. 156 Pol Law Rev, 2016 Vol. 2 (1), p. 148-168 DOI: 10.5604/01.3001.0009.7997 System of common courts in the... ORIGINAL ARTICLE

self. The matter was raised once again in 1930. charge of all other court proceedings in FC of The matter, however, required changes to the Danzig. His specific statutory rights included: constitution, which did not happen at all61. ◆◆order to continue the investigation by the same investigating magistrate if not Supreme Court (Obergericht) completed within the court operating year ◆◆ordering individual departments of the In the Constitution of June 14, 1922, in its National Court and the Supreme Court’s Article 63 was established that “the system senate to continue the proceedings and and powers of the courts will be determined adjudicate on individual cases if they by the law”. However, the two articles of the were not completed before the end of Constitution (Articles 10 and 32) refer to the the court operating year competence of the Supreme Court of the FC of ◆◆the establishment of a temporary alter- Danzig, defining its German name as the Das nate in place of regular deputy of the Oberste Gericht der Freien Stadt. Namely, Ar- National or Supreme Court Judge when ticle 10 of the Constitution recognized it as the important reasons have arisen Electoral Tribunal but the Article 32 as the State ◆◆appointing deputies for individual meet- Tribunal. The problem was that in the Law on ings or cases at the National Court the organization of the system of April 23, 1921 ◆◆delegation of extraordinary, auxiliary and its subsequent amendments, especially of workers to the municipal courts and the October 6, 1925 (Articles 32-34) 62 and of the National Court Senate of January 18, 192763, the Danzig leg- ◆◆entrustment of temporary judicial func- islature consistently (the People’s Chamber / tions in municipal courts to the referents Volkstag) used the term Higher Court, i.e. the ◆◆ruling on complaints in the process of Obergericht, which clearly diverged from the supervision constitutional definition. This conceptual diver- ◆◆determining the necessary number of gence was not removed until 1939. Therefore, judges and their assignment for particu- for the purposes of this article we will use the lar municipal courts term of the Supreme Court. ◆◆scheduling ordinary meetings of the Court of Lay Assessors and the penal Supreme Court presided over by the president, departments of the (small and big) which is simultaneously ex officio the president National Court of the National Court (Landgericht). However, ◆◆making annual lists of main assessors he performed judicial actions only in the Su- in the penal departments preme Court64. In addition to this, he was in ◆◆deleting an assessor from the national list ◆◆drawing assessors for major, particular 61DGBl., Nr 10, 1921, § 2, 3, s. 192. cases ◆◆appointment of the chairman, his depu- 62 DGBl., 1925, s. 266 i n. ties; judges and their deputies to Courts

63DGBl., 1927, s. 4 i n. of assizes ◆◆determining the number of jurors and 64M. Podlaszewski, op. cit., s. 198. their allocation to individual courts 157 Polish Law Review www.polishlawreview.pl ORIGINAL ARTICLE System of common courts in the...

◆◆establishment of an annual list of the settlement of the case individually by individual main jury and the deletion from it members of the Court69. ◆◆drawing the order of jury’s participation in hearings At the head of the Supreme Court was the bu- ◆◆scheduling jury’s sessions reau, consisting of: the president, the senate ◆◆making decisions on jury’s applications chairmen and the two oldest councilors. Its refusing to participate in specific hearings competences included: allocation of cases to ◆◆appointment of jury’s deputies to the individual senates, appointment of permanent sittings and cases before the Supreme members and their regular deputies, determi- Court nation of the order of permanent employees of ◆◆appointing prosecutors for indiscrimi- the National Court and the municipal courts to nate cases65. appoint them as deputies for individual meetings or cases reconsidered before the Su- In exceptional cases, the president of the Su- preme Court and allocate to the councilors of preme Court could be replaced by the presi- the Court, additional offices or functions in the dent of one of the senates having the longest public service, if necessary. All decisions of the seniority, and in case of a tie, the older one66. presidium were made by a majority, with the provision that in case of equality of vote, the The Supreme Court was divided into two sen- president’s vote was decisive70. ates: criminal and civil67. Each of them decided in the composition of five people, including the The Supreme Court in FC of Danzig functioned as: chairman68. Exceptionally, in the determination ◆◆Constitutional Tribunal of legal principles different from the previous ◆◆State Tribunal case-law of the Court and in cases where are ◆◆Electoral Tribunal taking place judgements on the constitutionality ◆◆the supreme instance of the common of laws (since 1926) plenary discussions were courts held. The court sessions of both senates were ◆◆Administrative Tribunal also acceptable. In both cases, the quorum was 2/3 of all the members mentioned. The rulings During the existence of FC of Danzig, imme- were passed with absolute majority of votes. In diately after its creation, a case (not included the event of equality, the advisory vote was con- in the Constitution) was put forward to exam- sidered the one cast by the recently appointed ine the compliance of the content of Gdansk adviser, possibly the youngest of age, if there legislation with the substantive content of the was equality of seniority. Finally, the Act also al- constitution. The issue was complicated and lowed for the process in the indicated cases the raised just before the adoption of the constitution itself. Namely, in the first draft of Septem- 65Gerichtsverfassungsgesetz…, § 115. ber 7, 1919 made by Mayor H. Sahm (i.e. the Magistrates’ project) it was clearly stated that 66bidem.

67Ibidem, art. 116. 69Ibidem, art. 122a, c, d.

68Ibidem, art. 122. 70Ibidem, art. 117. 158 Pol Law Rev, 2016 Vol. 2 (1), p. 148-168 DOI: 10.5604/01.3001.0009.7997 System of common courts in the... ORIGINAL ARTICLE

a properly enacted and promulgated Law of and administrative authorities have ruled only Gdansk will not be examined by the court71. In in the preliminary provisions appealed to the turn, the constitutional counterpart presented Supreme Court. This resolved the issue in an on October 6, 1919 by the Social Democrats, open plenary session with representatives of gave the courts such right72. The emergence the State Bar Association and stakeholders. of two contradictory at many points drafts The representatives of political parties, on the has prompted the Temporary Committee on other hand, could participate only in the con- Constitutional Affairs to set up a 15-person text of their earlier participation in the case. subcommittee to prepare a general draft. It The Supreme Court rulings were made only in was deliberating until March 29, 1920. Shortly the composition of its constituent members. All thereafter, on May 16, 1920, the Constitutional could relate only to specific cases previously Assembly was elected. In the summer of 1920, considered by the lower courts or state admin- its commission was clearly in favor of exam- istration bodies to which they have issued pre- ining the validity of the correctly passed laws liminary provisions, subsequently appealed in by the courts. The Assembly, led by the Social the form of a review or appeal to the Supreme Democrats, and especially by the referent, the Court. In total, during the years of its activities famous Danzig lawyer O. Leoning, however, (1926-1935), the Supreme Court ruled 21 such denied this provision. This matter, however, cases, in seven declaring non-compliance of was not dealt with in the constitution73. Nev- statutes with the Constitution. It was mainly in ertheless, the position of the courts based on connection with the progressive inflation, the the principle of supremacy of the Constitu- alignment of the amount in dispute74. tion over the laws, it was clear that they have the right to examine the compliance of laws The constitution in FC of Danzig in Article 32 and issued on the basis of acts of lower rank provided for the legal (constitutional) respon- with the Constitution, particularly with regard sibility of members of the Senate as the su- to respect for the fundamental rights and du- preme executive. According to it, a senator ties (Grundrechte). This law was confirmed in could be prosecuted on the basis of a reso- several judgments by the Supreme Court. This lution of the People’s Chamber (legislative au- situation forced Volkstag to deal with the case, thority) if he violated the constitution or other especially since by this time the courts of Dan- acts. The application for the case had to be zig had decided on the constitutionality of the submitted and signed by at least one quarter statutes in final sentences. Finally, on the basis of the Chamber’s members. The verdict was of the October 6, 1925 memorandum to the issued by the Supreme Court. Specific rules of Law of 23 April 1921, the powers of the Con- liability were to be defined in a separate law in stitutional Tribunal were granted exclusively to the future. However, this never was released. the Supreme Court. Henceforth lower courts The case has emerged before the constitution itself was passed. Namely, the draft of the so- called magisterial constitution, submitted on 71 Entwurf… von Sahm. September 7, 1919, did not foresee the Sen-

72Gegenentwurf… ate’s responsibility as a body, nor its individual

73M. Podlaszewski, op. cit.,, s. 200 i n. 74Ibidem, s. 201 i n. 159 Polish Law Review www.polishlawreview.pl ORIGINAL ARTICLE System of common courts in the...

members, both constitutional and political. At tion of deputies. The voter himself was entitled most, the Civic Assembly (Bürgerschaft - as to object. Objections should be made and justi- the Chamber of Deputies was supposed to be fied within four weeks of the official announce- called there) could demand possible explana- ment of the results. The hearing before the tions only from the Senate. On the other hand, Court of First Instance was based on the verbal the counterpart of the Social Democrats of principle and was public. The validation con- October 6, preferring not the Senate but the cerned both the non-objected and the objected Parliament republic, did in fact provided for vote. First verification belonged to the Volkstag, the constitutional responsibility of senators the other to the Supreme Court, although in the who could be prosecuted before the Supreme first drafts of the constitution (the magistrate’s Court by a resolution of the People’s Chamber and social democrats’) it was intended to con- (Volkskammer). In the counterpart project, their fer on the Chamber, which was eventually aban- political responsibility before the Chamber was doned. All accusations had to be concretized. If also permitted, which was able to make a mo- it turned out to be justified, the Court of First In- tion of censure for the Senate as well as its stance could order the repetition of the election individual members and impose a vote of no in both the constituency and individual districts. confidence. In turn, it the project of subcom- The enforcement of the judgment of the Court mittee of the Constituent Assembly of 1920, it was a matter for the Senate. New elections had was expected that the senator would be held to be held within three months, on the basis of responsible for the constitutional responsibil- previous lists and on the same premises, as well ity, but only the former, and only for official mis- as in an identical constituency of the election conduct (Amtsvergshen). The Chamber had to commissions. In parliamentary practice, such conclude, and the Supreme Court to adjudi- an event occurred only in 1935, when the anti- cate. The latter, at the request of the Vollkstag Hitler opposition was contested. Regardless of or the Senate, could also have ruled in case the Election Tribunal, the election of the Sen- of unconstitutionality or illegality of the activi- ate may be repeated but only at the request of ties of the Senate if such were found. Senators, the district electoral commission, in the event but only minor (political) and not the main ones of obvious obstacles preventing its work. Then also had to bear the parliamentary responsibil- the Supreme Court only had to examine the ity in front of the People’s Chamber75. appropriateness of the decision of the Senate. Apart from this, already after the election, the Another competence of the Supreme Court was Supreme Court, at the request of the Volkstag, the control of election results for the Volkstag, could also examine the formal terms and con- which resulted both from the constitution itself ditions of the mandate of a particular Member. and from the electoral law and the referendum This only concerned matters of doubt. They law. The Court held here the functions of the only occurred twice in Danzig until 193376. Electoral Tribunal. Namely, in accordance with Article 10 of the Constitution, it settled on the The Supreme Court, in accordance with the objections concerning the validity of the elec- law on the justice system of Danzig, was by

75Ibidem, s. 36 - 40; L.A. Hawranke, Verfassungsrecht der 76M. Podlaszewski, op. cit., s.70-72, 202; L. A. Hawranke, op. cit., Freien Stadt Danzig, s. 84. s. 84. 160 Pol Law Rev, 2016 Vol. 2 (1), p. 148-168 DOI: 10.5604/01.3001.0009.7997 System of common courts in the... ORIGINAL ARTICLE

its very essence an overriding instance over Finally, the Supreme Court performed the func- the case law of the lower courts in all civil and tions of the Administrative Court in relation to criminal cases that took place between them. administrative decisions taken before the state In this regard, it functioned as a multi-instance administrative organs in FC of Danzig and not court, ruling: under the jurisdiction of the administrative ◆◆in the first instance on all matters con- courts until 1935, when they were abolished, nected with committing the crime of and some of their powers were passed to the betrayal and treason general judiciary. At that time, the new Su- ◆◆in the second instance, settling appeals preme Administrative Court was created as the and appeals against the judgments of substitute for the Supreme Court. In practice, the National Court in civil cases issued until 1935 it concerned only the handling of in the first instance complaints against the decision of the Senate ◆◆in the second instance, considering ap- of FC of Danzig concerning: refusal to grant, peals and grievances against the judg- to declare a purchase or to declare the loss of ments and decisions of the National Danzig citizenship, which was taken out of the Court in criminal cases, issued in the jurisdiction of the administrative judiciary. Be- first instance in the proceedings before sides, similarly as in the Second Reich, the Su- the sworn courts preme Court, in accordance with the relevant ◆◆in the third instance, recognizing appeals provisions of the Danzig Laws regulating the against the decisions of the municipal administrative judiciary in FC of Danzig, was a courts, which were subject to an appeal competent court, settling all disputes between and a complaint procedure before the local administrative offices79. National Court in the second instance77. National Court (Landgericht) 80 Apart from the aforementioned general competence in court cases, the plenary assembly of the Supreme Court, in the form of a decree, Civil and Criminal Departments (chambers) settled the conclusions of its senates (civil and criminal) in its legal inquiries concerning the clarification of discrepancies in the previous In the Prussian state, part of the Second Reich, case-law of the senates as well as its plenary since the reforms of the judicial system of 1877 meetings regarding specific matters. The order and 1898, the national courts functioned at the was binding, being essentially effective without level of regency. They were divided into two de- having to repeat the oral hearing. However, if partments (chambers): civil and criminal. At the it was necessary, the interested party and the higher level, at the provincial level, a higher na- representative of the state lawyer took part in tional court has been set up which was an ap- the hearing78. peal body against national court judgments and

77Gerichtsverfassungsgesetz…, § 119; L.A. Hawranke, op. cit., s. 84 i n. 79M. Podlaszewski, op. cit., s. 202 i n.; T. Maciejewski, Sąd Najwyższy…, s. 586; L.A. Hawranke, op. cit., s. 84. 78Gerichtsverfassungsgesetz…, § 122; T. Maciejewski, Sąd Najwyższy…, s. 585. 80Gerichtsverfassungsgesetz…, § 59–78. 161 Polish Law Review www.polishlawreview.pl ORIGINAL ARTICLE System of common courts in the...

a cassation appeal against the verdicts of the judges, their regular deputies for the particular official courts. It ruled collectively in a five-man case or meeting, those who had been prosecut- squad. In Gdańsk this court was not created81. ed in court if they could not attend the court due to justified obstacles and for example87, there On the other hand, in FC of Danzig, while mod- was an overload of issues requiring recognition elling on Prussian solutions, but because of its in one of the chambers. Permanent judges and small territory, only one National Court was es- their deputies could also be delegated from one tablished covering all its territorial features. It was chamber to another.88. However, these actions presided over by the President who at the same required a regulation issued by another body of time was also the President of the Supreme the National Court, namely its Bureau. They were Court in which he performed all court functions82. made up of: President as the Chairman, the di- Apart from him, the National Court was com- rectors of both chambers, as well as the oldest posed of two heads of civil and criminal depart- senior judge89. The Bureau adopted resolutions ments and the required number of professional by majority vote, resolving the following issues: judges, which was not specified in the regulation. ◆◆the division of cases between the civil Both groups may be at the same time, however, and criminal chamber, but excluding the official judges (municipal) in one of four coun- a separate department of commerce, ties included in the territorial jurisdiction of the which later formed took part of the National Court83. Structurally, it was separated competence of the civilian department into two chambers (departments): criminal and ◆◆appointment of permanent judges in civil84. It was also allowed, if necessary, to widen chambers and their regular deputies the composition of the Court of First Instance by ◆◆the appointment of the President of the investigative judges85. According to Article 39 of small criminal chamber and its deputy the FC of Danzig constitution of 14 June 1922, it ◆◆arranging the agenda of all four official established their Senate which was the supreme courts authority of the national administration, including ◆◆appointing auxiliary judges replacing the judiciary, for a period of one year86. absent permanent judges of the Nation- al Court unless they can be replaced by Next to them, before the commencement of the other judges of that Court. court’s operational year, they could be called up ◆◆transfer of the cases in the event of an to the National Court, along with the permanent excess of them in one court and defi- ciency in another ◆ 81Historia państwa i prawa Polski, t. IV, Od uwłaszczenia do ◆appointing permanent judges to offici- odrodzenia państwa, Warszawa 1982, s. 602–604. ate or carry out public duties, if this is their competence90. 82Gerichtsverfassungsgesetz…, § 59, pkt 1.

83Ibidem, § 59, pkt 2. 87Ibidem, § 63, pkt 1.

84Ibidem, § 60. 88Ibidem, § 63, pkt 2.

85bidem, § 61, pkt 1. 89Ibidem, § 64, pkt 1.

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The competencies of the president of the Na- The civil Chamber of the National Court, exclud- tional Court, as previously emphasized also ing the Chamber of Commerce, recognized in the President of the Supreme Court, need to the first instance all civil law matters that did not be distinguished separately. It is precisely in belong to the jurisdiction of the official (municipal) connection with this latter function that the fol- courts96. In contrast, in the second instance set- lowing powers were granted to him in relation tled complaints and appeals against civil-law rul- to the National Court: ings issued by the official (municipal) courts97. On ◆◆order the chambers to further process the other hand, the superior court of the National and adjudicate in cases even after the Court was the Supreme Court which recognized end of the court’s operating year all complaints and appeals issued by the Court ◆◆the appointment of a temporary alter- of First and Second Instance, in the second case nate for the regular substitute, if there referring to the judgments of official courts98. The are important reasons for doing so chamber was usually composed of three profes- ◆◆appointing substitutes for individual sional judges, unless the provisions of German meetings or cases Civil Procedure Act of 1877 permitted the judg- ◆◆delegation of extraordinary auxiliary staff ment issued by one judge99. The Civil Chamber ◆◆appointments for ordinary meetings of was ruled out, irrespective of the amount of the the courts and of the penal chamber claim, from ruling on civil servants against the in- (small and large) 91. terests of FC of Danzig’s treasuries and against officials due to overriding their rights or their The President of the National Court also presided fault of negligence. In addition, it was necessary over the plenary sessions, and the directors held to waive the recognition of officials’ complaints this function in chambers, including commercial against the state if they resulted from official -re ones92, in relation to which paragraphs 63-68 had lations or administrative decisions issued by the not yet applied. On the other hand, in particular authorities100. The proceedings were based on chambers the Presidents of the benches of judg- the principles of availability, adversity, verbalness, es were appointed by their directors93, although openness, and free assessment of evidence. The the President of the Court94, or even of the Bu- initiation of the process was essentially based reau, could also participate in these proceedings, on the sole initiative of the parties, although the and the Bureau’s President may request the Sen- social interest allowed a number of exceptions ate to designate an extraordinary auxiliary judge to this rule, such as in matrimonial matters, or if the regular judges or their regular deputies, for incapacitation and establishing parentage. The different reasons, could not take up the role95. trial ended with a final or default judgment. Legal

91Ibidem, § 65. 96Ibidem, § 71, pkt 2.

92Ibidem, § 62. 97Ibidem, § 72.

93Ibidem, § 69. 98Ibidem.

94Ibidem, § 62. 99Ibidem, § 75.

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measures against it were: appeal, revision, and A superior instance over the State Court was the objection (from default judgment) 101. Supreme Court, which in the second instance decided about the complaints and appeals Criminal Chamber of the FC of Danzig’s Nation- against the decisions issued by the first instance al Court ruled under the code of criminal pro- (judgments of courts and official jury), as well as cedure of the Second Reich of 1877. The pro- the second instance when considering appeals cess was divided into three studies: preliminary, from official courts, which were subjected to -ap transitional and main. The preliminary investiga- peal and made the complaint procedure before tion consisted of: preparatory investigation and the National Court in the second instance. preliminary investigation. The investigation was initiated by the prosecutor, and the investigation Rulings issued by the Criminal Chamber were was run by a special judge appointed by the FC orders and judgments. For the adoption of of Danzig’s Senate for the judicial year of the provisions of substantive value, but not end- settlement year. He also decided to file an - in ing criminal proceedings, a special chamber of dictment. On the other hand, the Chamber itself the so called Beschlussstrafkammer was cre- was competent to hear complaints against its ated. Its chairman was the director of the penal actions and the investigative acts brought by the chamber itself. It ruled by three professional defendant102. On the other hand, in the first in- judges, except the director, however, also out- stance, it recognized all criminal cases removed side the ordinary meetings of the juries or small from the substantive jurisdiction of courts and chambers of criminal jurisdiction for which its tribunals and transferred to the National Court decisions were necessary. for consideration (mostly crimes punishable by imprisonment for more than 10 years, except for On the other hand, the main proceedings pend- main betrayal and betrayal of the state, which ing before the small chambers (lighter offenses) belonged to the Supreme Court) it decided to and the big chambers (heavier offenses) were increase the composition of the court to the fully based on the principles of: complaints, and second professional judge if the size and impor- publicity of oral proceedings. The hearing itself tance of the case were in dispute103. was uninterrupted before the same panel of judges, and its adjournment for more than four In the second instance the Criminal Chamber days caused it to start from the beginning105. considered the complaints and appeals from official courts (municipal) and jury courts and The small Criminal Chamber debated in the com- lawyers’ complaints on the activities of the craft- position of three members, which was formed by trade courts, involving a grave breach of the du- a professional judge and two jurors. It considered ties of officials104. in the appeal procedure from official courts in which a sentence of more than one year’s impris- 101Historia…, s. 717–719. onment and judgments issued by a single judge were ruled106. However, the large criminal cham- 102Gerichtsverfassungsgesetz…, § 73, pkt 1.

103Ibidem, § 73, pkt 2. 105T. Maciejewski, Historia powszechna…, s. 705 i n.

104Ibidem, § 74. 106Gerichtsverfassungsgesetz…, § 76, pkt 2. 164 Pol Law Rev, 2016 Vol. 2 (1), p. 148-168 DOI: 10.5604/01.3001.0009.7997 System of common courts in the... ORIGINAL ARTICLE

ber was dealing with matters in the composition ing owner and the purchaser of five persons, i.e. three professional judges and ◆◆third party and those who answered two lawyers. These were appeals against the due to insufficient proof of proxy or judgments of courts and official courts if they trade power of attorney; were not settled by a small Criminal Chamber. ◆◆arising from maritime law or internal navigation law, in particular the rights 5.2 Commercial Department (Chamber) and obligations of the ship owner or (Kammer für Handelssachen) 107 owner of a bodmer of an accident, etc109.

All of them were settled by the commercial de- The commercial department was set up in partment at first instance. Gdansk by the National Court directly under the Supreme Court. With its establishment, the The composition of the adjudication panel in competence in terms of its material properties the commercial department was composed of has lost its civilian department108. All commer- an official court’s judge, its chairman appoint- cial disputes in which the complaint relates to ed by the Senate and two commercial judges, claims against merchants in connection with except for cases in which the judge could de- business interests arising from the provisions of cide on its own110. It was also possible that the the 1897 Commercial Code of the Reich, the Bill head of the department could also be a judge of exchange and check payable in 1908 and the of the municipal court111. Commercial judges, unfair competition law of 1909 and the stock ex- on the other hand, performed their role only as change of 1908, as well as the legal relationship: an honor112. They were elected for a period of ◆◆between members of a trading com- three years by a special commission. Re-se- pany or between a company and its lection was possible113. According to Article 73 members, and between a silent partner (2) women could be also appointed as com- and a commercial interest owner both mercial judges. during the existence and after termina- tion of the company and between the A commercial judge would be a citizen of the authorities of the trading company or FC of Danzig who was more than 30 years old its liquidators and the company and its and was: a trader, head of joint-stock company members; or the LTD company or a trade manager of a ◆◆regarding the right to use a trading legal entity registered in the commercial regis- company; ter or another person of the same qualifications ◆◆relating to the protection of trademarks, designs and models; 109Ibidem, § 95. ◆◆arising from the acquisition of existing commercial interests between the exist- 110Ibidem, § 105.

111Ibidem, § 106. 107Ibidem, § 93–114; T. Maciejewski, Sądy handlowe Wersalskiego Wolnego Miasta Gdańska. Geneza i ustrój w: „Gdańskie Studia Prawnicze”, t. XXI, 2009, s. 267–278. 112Ibidem, § 107.

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if the registered office of a company -or com the commercial chamber121. The same proce- mercial legal entity was located on the outskirts dure concerned extending the lawsuit, coun- of Gdansk114, and for a seafaring citizen famil- terclaims122 and permits123. Next to a request iar with the issue of shipping115. Prior to tak- for consideration by another department could ing office, commercial judges made an oath to be applied for by the same party. It was to be conscientiously perform their duties116. During submitted to the Land Court124. Its decision their term of office, they also had all the rights was not subject to appeal, and was binding for of the judges, which automatically exclude jury the chamber to which the matter has been ad- members and jurors of other Gdansk courts117. dressed125. A commercial judge could be dismissed on the basis of a decision of the Senate of a civil Commercial department was also an instance of court once the qualification for the office was appeal against the judgments of the craft court, lost118. A commercial judge ruled when it came created under the Act of 23 November 1922126 to merchant opinion or trading habits, only on and the commercial court, operating from 23 the basis of their own knowledge of things and November 1922 when the amount of the appeal experience119. exceeded 300 guldens, and the damages 50 guldens (from 1927, previously 100 guldens) 127. Proceedings before the commercial department were carried out in accordance with the Official Courts (municipal, provisions of the Civil Code of the Reich of Amtsgerichte)128 1877, adopted with minor modifications by the FC of Gdansk. The initiation of the trial was the sole cause of the plaintiff’s claim. If In FC of Danzig, at the basic level there ex- the commercial department considered that isted the official courts, also called the munici- the case did not belong to its jurisdiction, pal (Amtsgerichte). There were four of them; in the civil suit was filed as officio with the Civil Gdańsk, Sopot, Nowy Staw and Nowy Dwór Chamber120. Gdański129.

In the opposite situation it was done by the 121Ibidem, § 98. civilian chamber itself, directing the lawsuit to 122Ibidem, § 99.

114Ibidem, § 109. 123Ibidem, § 104.

115Ibidem, § 110. 124Ibidem, § 101.

116Ibidem, § 111. 125Ibidem, § 102.

117Ibidem, § 112. 126DGBl., 1922, § 55, s. 519.

118Ibidem, § 113. 127DGBl., 1922, § 16, s. 530.

119Ibidem, § 114. 128Gerichtsverfassungsgesetz…, § 22–27.

120Ibidem, § 97, § 102. 129M. Podlaszewski, op. cit., s. 200. 166 Pol Law Rev, 2016 Vol. 2 (1), p. 148-168 DOI: 10.5604/01.3001.0009.7997 System of common courts in the... ORIGINAL ARTICLE

Next to them were also created the Courts of ◆◆former spouses for statutory alimony Lay Assessors (Schöffengerichte). Ordinance claims as well as claims arising out of of January 18, 1927, devoted 6 paragraphs to extramarital relations, the municipal courts, with only 3 repeating the ◆◆owners of animals and persons injured regulation contained in the Weimar Republic by them, Act of 22 March 1924 (Articles 22, 23, 24). The ◆◆parties to the contract for life-rent132. rest was novum130. ◆◆On the other hand, in the criminal cases, the municipal courts were At the head of the municipal courts were in- competent to adjudicate on offenses, dependent judges (Einzelrichter). They could misdemeanours and certain crimes133. also be members or directors of the National Court131. At the same time, the law provided that For misdemeanours were included in this actions: the composition of the municipal court could be ◆◆subject to private prosecution, composed of several judges. In this case the ◆◆punishable by imprisonment of more administration of the National Court was enti- than 6 months, tled to pass to one of them the general supervi- ◆◆subject to private prosecution in cases sion, and when the number of judges exceeded where the threat of imprisonment does fifteen, even to few of them. Each of the judges, not exceed one year, however, resolved his or her cases separately, ◆◆prosecuted at the request of administra- unless the law provided otherwise. The munici- tive authorities in cases related to pros- pal courts have ruled at first instance both civil ecution of taxes and public charges134. and criminal cases, with the exception of those reserved to the jurisdiction of the National Court The crimes subject to the jurisdiction of the or the Supreme Court. In civil cases, the juris- municipal co urts were the following: diction of the municipal courts was to deal with ◆◆punishable by imprisonment, heavy jail property matters which value did not exceed and fortress for up to 10 years, 800 guldens. In addition to this, regardless of ◆◆money forgery, the amount of disputes between: ◆◆theft recidivism, ◆◆lessee and lessor and the latter and the ◆◆robbery, theft and robbery, extortion in sublocator, in terms of renting flats and connection with robbery, other premises, ◆◆reseiving of stolen goods recidivism, ◆◆breadwinner (the master of the house) ◆◆serious injury to an official in the per- and his staff, formance of his duties, ◆◆travellers and owners of inns, ◆◆fraudulent bankruptcy, ◆◆carriers or rafts and forwarding agents ◆◆efrauding someone else’s securities135. of external port companies as to trans- port costs and damage or destruction 132Ibidem, § 23. of property, 133Ibidem, § 24.

130G. Voigt, op. cit., s. 1. 134Ibidem, § 25.

131Gerichtsverfassungsgesetz…, § 22. 135Ibidem, § 24. 167 Polish Law Review www.polishlawreview.pl ORIGINAL ARTICLE System of common courts in the...

Some of these crimes could only be prose- should be instructed136. cuted on the basis of a written indictment or an oral application by the prosecutor. The defendant had the right to object to them, which 136Ibidem, § 26.

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Competing interests: Authors have declared that no competing interest exits.

Funding: ekst zrealizowano w ramach projektu badawczego Narodowego Centrum Nauki nr UMO-2014/15/B/HS5/03321

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Corresponding author: prof. dr hab. Tadeusz Maciejewski; e-mail: [email protected]

Table of contents 2016: http://polishlawreview.pl/resources/html/articlesList?issueId=9377

Cite this article as: prof. dr hab. Maciejewski T.: System of common courts in the Free City of Danzig (1920-1939 Part I.; Pol Law Rev, 2016 Vol. 2 (1); 148-168

168 Pol Law Rev, 2016 Vol. 2 (1), p. 148-168 DOI: 10.5604/01.3001.0009.7997