884.05/44
The Minister in Ethiopia (Southard) to the Secretary of
State
No. 1264
Addis Ababa, October 17,
1933.
[Received November 15.]
Sir: I have the honor to refer to the
Legation’s Nos. 1258 and 1261 of October 5 and 12, 1933,7 respectively, with
which were submitted draft civil and criminal codes proposed for use
in the Special Tribunal (Mixed Court) in Ethiopia. These codes
represent the deliberation of a joint Ethiopian and Diplomatic Corps
commission, and have been submitted by my colleagues to their
respective Governments for comment or approval.
A third project, for the reform or reorganization of the Special
Tribunal, has now been taken up by the Diplomatic Corps. The Corps
proposes to designate a commission, composed of its junior officers
qualified for such work, to meet with an Ethiopian commission to
consider a reform or reorganization of the Tribunal. The
instructions which the Corps proposes to give its commission as a
basis for negotiation with the Ethiopian representatives have been
prepared in memorandum form. Before proceeding to the appointment of
its commission the members of the Corps are referring the memorandum
of proposed instructions for the approval or comment of their
respective Governments.
There is enclosed herewith in the original French, with free
translation into English, a copy of the Diplomatic Corps memorandum.
The instructions of the Department are respectfully requested as to
whether this Legation may join with the other foreign Legations
here, on the basis of this statement, for the negotiation of a
reform or reorganization of the Special Tribunal. The specific
designation in the Paragraph 4 of this memorandum of the countries
from which the proposed foreign judges may be appointed has been
made with a view to avoiding, for obvious reasons, the selection or
appointment of a foreign judge of the nationality of any of the
Legations represented here. The provision in Paragraphs 8, 15 and 20
for a salary in “gold” is to protect the appointees from exchange
fluctuations which could cause them considerable hardship.
The Diplomatic Corps finds itself in doubt as to what authority
should have jurisdiction over a foreign judge of the Special
Tribunal who might be accused of a crime or an offense, but is
definitely of the opinion that such judge should in no circumstance
be submitted to a Consular Court for trial or judgment. We have each
agreed to request the views
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of our respective governments on this point, and I have therefore
the honor to request the Department’s views.
Respectfully yours,
Memorandum
The Chiefs of the Diplomatic Missions established at Addis
Ababa:
Believing that experience has sufficiently demonstrated the
impossibility of obtaining satisfactory justice in mixed cases
through the present institutions;
Observing that the work undertaken by the Mixed Commission for
the reform of procedure in the Special Court will soon be
finished;
Remembering that by virtue of the agreement made in April, 1933,
between the Diplomatic Corps and the Ethiopian Government a
second mixed commission will immediately begin the study of the
reform of the Special Court itself;
Convinced that this second negotiation can succeed only by prior
agreement between the interested powers;
Persuaded that the scheme of reform drawn up in 1929 by the
Diplomatic Corps must undergo some modifications in view of the
recent changes proposed in the laws of procedure as well as in
view of the fact, now known, that certain points of this plan
would meet firm opposition on the part of the Ethiopian
Government;
Hereby decide to refer to their respective governments for
approval the following suggestions which can serve as
instructions for all the delegates whom the Diplomatic Corps
will appoint to sit on the Mixed Commission for the reform of
the Special Court:
The delegates of the Diplomatic Corps will point out at the
beginning of the negotiation that the interested powers
presented, in 1929, a plan for the reform of mixed jurisdiction,
which did not meet with the assent of the Ethiopian
Government.
They will, moreover, call attention to the fact that on April 12,
1932 (Miazia 4, 1924),9 the Ethiopian Government expressed the
desire that deliberative sessions be begun between the members
of the Special Court, and also that rules of procedure be
defined in a code.
The delegates of the Diplomatic Corps will emphasize the fact
that the Ethiopian Government has just received full
satisfaction on both of these points.
They will also make plain that they are in agreement with the
terms of the above-mentioned note, dated April 12, 1932, in
considering that new reforms are indispensable.
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They can then ask the Ethiopian delegates how His Majesty’s
Government now regards these reforms.
During the discussion to follow the delegates will endeavor to
accomplish the establishment of a mixed jurisdiction according
to the suggestions in the following summary.
- 1.
- For a period of five years, renewable by tacit consent,
the Ethiopian Government and the governments represented at
Addis Ababa will adopt the system outlined in the following
paragraphs for the adjudication of mixed cases in
Ethiopia.
- 2.
- In Ethiopia all civil, commercial or criminal matters,
between foreigners (whether nationals or protected subjects,
and including legal persons) and Ethiopians (subjects or
legal persons under either private or public law) shall be
brought before a tribunal, to be called a Mixed Court of
First Instance; exception being made, however, of cases of
personal status, inheritance, and bankruptcy.
- 3.
- This Court at Addis Ababa will consist of three judges: an
Ethiopian magistrate, a delegate of the interested legation
or consulate, and a foreign career magistrate, who will
preside in the Mixed Court of First Instance, and whose
voice will be decisive in case of disagreement.
- 4.
- This president will be a magistrate belonging to one of
the five following countries: Austria, Denmark, Netherlands,
Switzerland, Czechoslovakia.
- 5.
- He will be nominated by his government and will enter the
Ethiopian Government’s service for five years. His contract
will be renewable.
- 6.
- This contract cannot be broken during its term except for
duly established reasons of health, or by agreement between
the Diplomatic Corps and the Ethiopian Government. In the
second case, an indemnity equal to two months’ salary will
be awarded by the Ethiopian Government to the departing
magistrate.
- 7.
- The president of the Mixed Court of First Instance must
know the French language fluently, and he will draft his
decisions in that language.
- 8.
- His salary will be 100 gold pounds sterling per
month.
- 9.
- He will be entitled to three months’ leave at the end of
two and one-half years of residence, such leave not
including time for the journey going and coming by direct
route. His travel expenses from Addis Ababa to the capital
of his country of origin will be paid him by the Ethiopian
Government. He will retain his salary during the period of
leave.
- 10.
- He will also be entitled each year, excepting the year of
long leave, to a leave of one and one-half months with full
salary, during court vacation.
- 11.
- When the contract is first made and at the expiration of
each contract period the Ethiopian Government will bear the
expenses of the magistrate’s journey going and coming, as
well as those of his family.
- 12.
- Judgments of first instance can be appealed, under the
reservations stated in paragraph 22, to a court of appeal
called the Mixed Court of Appeal.
- The Mixed Court of Appeal will sit at Addis Ababa and will
consist of three judges: an Ethiopian magistrate, a delegate
of the interested legation or consulate who must not have
participated in the trial of first instance, and a
president, who will be a foreign career magistrate, and
whose voice will be decisive in case of disagreement.
- 13.
- The president of the Mixed Court of Appeal will belong to
the High Magistracy of one of the countries listed in
paragraph 4, but he may not be of the same nationality as
the president of the Mixed Court of First Instance at Addis
Ababa.
- 14.
- He will be appointed in the manner indicated in paragraph
5. He will be bound by the conditions in paragraphs 6, 7, 9,
10, and 11.
- 15.
- His salary will be 150 gold pounds sterling per
month.
- 16.
- The Ethiopian Government will also engage a judge of first
instance, on the terms indicated in paragraphs 4 and 5 who
will normally preside in the Mixed Court of First Instance
at Dire-Daoua or Harrar, and who will ensure replacement of
the president of the Mixed Court of First Instance at Addis
Ababa when the latter is on leave or absent for important
reasons.
- 17.
- This magistrate will be bound by the conditions in
paragraphs 6, 7, 9, 10, and 11. He may not be of the same
nationality as the president of the Mixed Court of
Appeal.
- 18.
- His salary will be 100 gold pounds sterling per month. He
will not receive additional compensation for filling a
vacancy as provided in paragraph 16.
- 19.
- The presidents of the Mixed Courts of First Instance or of
Appeal will always be assisted by an Ethiopian interpreter
who speaks French fluently.
- 20.
- The Addis Ababa Mixed Court will have a clerk of court
belonging to the judiciary of one of the countries
enumerated in paragraph 4, appointed by the Ethiopian
Government, on nomination by his own government. This clerk
of court will be engaged for three years and his contract
may be renewed. His salary will be at least 60 gold pounds
sterling per month. His travel expenses at the time of
engagement and on expiration of his contract, for himself
and family, will be paid by the Ethiopian Government. In
case of renewal of engagement, he will be entitled to four
months’ leave with full salary and travel expenses for
himself and family.
- 21.
- This clerk of court must know French fluently.
- 22.
- There will be no appeal in civil matters when the amount
concerned does not exceed 500 thalers. In criminal matters
there will be
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no
appeal when the sentence does not involve more than 600
thalers fine or one month’s imprisonment.
- 23.
- In trials of first instance, as also in appeal, the Court
will be duly constituted even if the interested legation or
consulate fails to send its delegate. The same will hold in
the absence of the Ethiopian magistrate.
- 24.
- In criminal matters, the president of the Court may demand
the services of the foreign officers employed by the
Ethiopian Government, in order to carry out
investigations.
- 25.
- Likewise in criminal matters the duty of Attorney for the
State may be entrusted by decision of the president of the
Court to one of the lawyers admitted to practice before the
Court. This lawyer will be compensated.
- 26.
- Pending the drafting of Mixed Codes, the Court will try
cases according to the fundamental law of the
defendant.
- 27.
- The laws of procedure drafted by the Mixed Committee in
July, August and September, 1933, will be adapted without
delay and by mutual agreement to the new organization of the
Court.
- 28.
- (Omitted.)
- 29.
- The Mixed Court of First Instance functioning at
Diré-Daoua and at Harrar will consist of the foreign
magistrate contemplated in article 16, the representative of
the Ethiopian Government, and the consul or his
delegate.
- 30.
- Pending the establishment of courts identical with those
whose organization is provided above, a Mixed Court will
function in all localities of the Ethiopian Empire where
there is a permanent representative of a foreign power, this
Court to consist of an Ethiopian judge and the said
representative. This Court will have cognizance of all cases
contemplated in paragraph 2.
- 31.
- Judgments rendered by the Court of First Instance at
Diré-Daoua or at Harrar may be appealed to the Mixed Court
of Appeal at Addis Ababa.
- 32.
- When the Ethiopian judge and the foreign representative
cannot come to agreement on cases referred to them under the
terms of article 30, the Mixed Court of First Instance at
Addis Ababa will take cognizance of such matters in the
first instance.
- 33.
- It remains understood that all the clauses of the
Klobukowsky Treaty10 not in
direct contradiction to the amendment to be made regarding
judicial reform retain full force.