711.622/101
The Department of State to the German Embassy
Memorandum
The Department of State refers to a memorandum of the German Embassy requesting to be informed on behalf of a German lawyer “whether or not an American citizen who has declared his willingness to give testimony before a German consular officer in the United States, could be prosecuted for perjury if in such testimony he made a false statement under oath.”
In reply the Department desires to bring the following considerations to the German Embassy’s attention.
Article XXII of the Treaty between the United States and Germany provides in part as follows:
“Consular officers may, in pursuance of the laws of their own country, take, at any appropriate place within their respective districts, the depositions of any occupants of vessels of their own country, or of any national of, or of any person having permanent residence within the territories of, their own country.”
It would seem that the Treaty does not grant the right to take the depositions of nationals of the United States, except possibly in the instances where such nationals are “occupants” of German vessels or have “permanent residence” in Germany. American nationals in the United States may presumably, however, voluntarily give their depositions under oath to German consular officers. However, to constitute perjury or false swearing under the laws of the United States, it must be shown that the oath was taken “before a competent tribunal, officer, or person, in any case in which a law of the United States authorized an oath to be administered.” (United States Code, Title 18, Section 231).
From the foregoing it would seem that in so far as Federal laws are concerned a person can only be convicted of perjury where the oath is administered by one authorized to do so. Hence, if American nationals [Page 928] give false testimony under depositions under oath voluntarily given to German consular officers in this country they presumably would not be liable to prosecution for perjury under the laws of the United States, since there is no law of the United States authorizing German consular officers to administer oaths to them.
The Department notes that the German Embassy adverts to the memorandum regarding a conference held at the Department on December 1, 1923, which reads as follows:
“Article XXII [XVII]
“(15[14]) It was the consensus of opinion that under the provisions of this Article consular officers of the other High Contracting Party might take the testimony on oath of the nationals of the country where such consular officers reside, provided that such nationals are willing to give their testimony before such consular officers.”
The Department deems it pertinent to observe that in the last paragraph of the memorandum which was transmitted to Mr. Hyde by Mr. von Lewinski, the following statement was made “This memorandum is prepared as a minute of conversations, and is in no sense an agreement supplemental to the treaty or binding on the parties to the treaty as interpretative of its provisions.” It has been the Department’s understanding which it will be pleased to have confirmed, that the German Government objects to the taking of depositions of German nationals, by American consular officers in Germany. This understanding is based on a note of July 24, 1874, addressed by Mr. von Bülow to Mr. Bancroft. ( Foreign Relations of the United States, 1874, 446; Moore’s International Law Digest, vol. II, 125).