Foreign Relations of the United States, 1952–1954, Germany and Austria, Volume VII, Part 1

No. 53
Convention on the Rights and Obligations of Foreign Forces and Their Members in the Federal Republic of Germany¹

Bonn, May 26, 1952.

The United States of America, the United Kingdom of Great Britain and Northern Ireland and the French Republic, of the one part, and the Federal Republic of Germany, of the Other Part, Agree as Follows:

Part One—General

Article 1—Definitions

In the present Convention and the Annexes hereto the following terms shall be given the meanings hereinafter indicated:

1. The Federal territory:

The territory in which the Federal Republic exercises jurisdiction, including its waters and the air space over such territory and waters.

2. The Three Powers:

The United States of America, the United Kingdom of Great Britain and Northern Ireland and the French Republic.

3. Other Sending State:

Any Power, other than one of the Three Powers, which, by agreement with the Three Powers or any one of them, has Forces stationed in the Federal territory on the entry into force of the present Convention; and any other Power which may in future by such agreement have Forces stationed in the Federal territory, so far as such Power does not, with the consent of the Three Powers, conclude a separate Convention with the Federal Republic concerning the status of its Forces.

4. The Power concerned:

That Power whose rights and obligations are concerned in the particular case, namely:

(a) in the case of one of the Three Powers, that Power;

(b) in the case of another Sending State,

(i) that one of the Three Powers which has been named as the Power concerned on the basis of an agreement, to be notified to the Federal Government, between the Sending State and the Three Powers or any one of them; or

(ii) the Sending State itself to the extent to which it assumes vis-à-vis the Federal Republic, by an agreement concluded with the Three Powers or any one of them, after ascertaining the views of the Federal Government, all or certain of the rights and obligations arising out of the present Convention, and gives the Federal Government formal notification thereof; for the remaining rights and obligations, one of the Three Powers to be notified to the Federal Republic in accordance with item (i) of this sub-paragraph.

5. The Forces:

The armed Forces of the Three Powers and of other Sending States stationed in the Federal territory.

6. The authorities of the Forces:

The authorities of the Forces of the Power concerned.

7. Members of the Forces:

(a) Persons who, by reason of their military service relationship, are serving with the armed Forces of the Three Powers or other Sending State and are present in the Federal territory (military personnel);

(b) Other persons who are in the service of such armed Forces or attached to them, with the exception of persons who are nationals neither of one of the Three Powers nor of another Sending State and have been engaged in the Federal territory; provided that any such other persons who are stationed outside the Federal territory or Berlin shall be deemed to be members of the Forces only if they are present in the Federal territory on duty (followers).

The following are considered “members of the Forces”: dependents, who are the spouses and children of persons defined in subparagraphs (a) and (b) of this paragraph or close relatives who are supported by such persons and for whom such persons are entitled to receive material assistance from the Forces. The definition “members of the Forces” shall include Germans only if they enlisted or were inducted into, or were employed by, the armed Forces of the Power concerned in the territory of that Power and at that time either had their permanent place of residence there or had been resident there for at least a year.

8. Germans:

Germans within the meaning of German law.

9. Accommodation:

Land, including all property permanently attached thereto, and all rights of use related to land, including such property, used or to be used by the Forces within the Federal territory.

10. Installations:

Land, buildings or part thereof, and all property permanently attached thereto, which, pursuant to the provisions of the present Convention, are allotted for the exclusive use or occupancy (im ausschliesslichen Besitz) of the Forces. This definition shall not apply to Article 20 of the present Convention.

Article 2—Observance of German Law. Political Activity

1. The members of the Forces shall observe German law, and the authorities of the Forces shall undertake and be responsible for the enforcement of German law against them, except as otherwise provided in the present or in any other applicable Convention or agreement.

2. The members of the Forces shall abstain from any activity inconsistent with the spirit of the present Convention and shall in particular refrain from any political activity.

Article 3—General Obligations

1. In asserting the rights and immunities accorded to them under the present Convention, the Forces shall give due consideration to German interests, public and private, particularly by taking into account the capacity of the German economy and the essential domestic and export requirements of the Federal Republic and West Berlin.

2. The German authorities shall exercise the powers which they have under the Basic Law in the fields of legislation, administration and judicial action so as to ensure the protection and security of the Forces and their members and of the property of the Forces and their members, and to ensure the satisfaction of the requirements of the Forces and the performance of the obligations of the Federal Republic as provided in the present Convention.

3. The provisions of Annex A to the present Convention shall enter into force simultaneously with the present Convention. They shall apply also to offences committed in the Federal territory against the Armed Forces of the Three Powers stationed in Berlin. The Federal Republic shall not reduce the legal protection afforded by the provisions of this Annex.

4. The German authorities shall not subject or, within the scope of their powers, permit the subjection of the Forces and their members, or the property of the Forces and their members, to prejudiced or less favourable treatment, other than that which is, in accordance with international law and practice, established by law with respect to aliens ordinarily resident in the Federal territory.

Article 4—Reciprocal Assistance and Security

1. The authorities of the Forces and the German authorities shall extend full co-operation and assistance to each other to further and safeguard the security of any Power concerned and of the Federal Republic and that of the Forces stationed in the Federal territory, and their members, and of the property of the Forces and their members.

2. Such co-operation and assistance shall extend, in accordance with an understanding to be reached between the appropriate authorities, to the collection, exchange and protection of the security of all pertinent information.

Article 5—Liaison

The authorities of the Forces and the German authorities shall take appropriate measures to ensure close and reciprocal liaison.

part two—jurisdiction

Section I: Criminal Proceedings

Article 6—Criminal Offences: Jurisdiction and Applicable Law

1. Except as otherwise provided in the present Convention, the authorities of the Forces shall exercise exclusive criminal jurisdiction over members of the Forces. A death sentence shall not be carried out in the Federal territory by the authorities of the Forces as long as German law does not provide for such penalty.

2. Where, under the law of the Power concerned, the service tribunals are not competent to exercise criminal jurisdiction over a member of the Forces, the German courts and authorities may exercise criminal jurisdiction over him in respect of an offence under German law committed against German interests, in accordance with the following provisions:

(a) No criminal proceedings, other than those provided for in Article 7 of the present Convention, or urgent preliminary investigations, after consultation, as far as practicable, with the authorities of the Forces, shall be instituted by the German courts or authorities until the authorities of the Forces have been consulted by the appropriate German authorities and been given the opportunity, within twenty-one days from the receipt of information as to the facts involved, to make representations and recommendations in regard to the effect upon the security of the forces of any such criminal proceedings; any such representations and recommendations shall be given due weight by the German courts or authorities. Such consultation shall, however, not be required where the alleged offence is one the penalty for which, under German law, is merely detention for not more than six weeks or a fine not exceeding DM 150 (Uebertretung), unless the German authorities consider that the security of the Forces is or might be involved in the case in question;

(b) The German courts and authorities shall, within the discretionary powers conferred on them by German law, abstain from prosecution in any case in which

(i) such abstention is permitted by German law; or

(ii) the offender has been suitably punished by disciplinary action of the authorities of the Forces;

(c) The German courts and authorities shall decide upon questions of arrest, detention and execution of punishment in accordance with the provisions of German law. The authorities of the Forces shall execute any warrants of arrest and detention. An accused person so taken into custody by the authorities of the Forces shall remain in their custody until, by virtue of a final (rechtskraeftig) judicial decision, he is released or sentenced. The authorities of the Forces will take appropriate measures to prevent any prejudice to the course of justice (Verdunkelungsgefahr). They will hold an accused person so taken into custody at the disposal of the German courts and authorities, will grant access to him at any time by the German courts and authorities and on request present him to the German courts and authorities for the purposes of investigatory proceedings, trial and the serving of any sentence which may be imposed. Where an accused person is not taken into custody, the authorities of the Forces will take measures to ensure that he is at the disposal of the German courts or authorities for the purposes aforesaid;

(d) Any sentence of imprisonment shall be served in a German penal institution.

For the purposes of this paragraph, the expression “offence under German law committed against German interests” shall mean any offence under German law other than an offence directed against the Forces, their members, or the property of the Forces or their members.

3. The exclusive jurisdiction of the German authorities over persons who are subject to German criminal jurisdiction shall include those cases in which the criminal offence is directed against the Forces, their members, or the property of the Forces or their members.

4. With the consent of the German authorities, the authorities of the Forces may transfer to German courts or authorities, for investigation, trial and decision, groups of, or particular, cases for which they are exclusively competent under paragraph 1 of this Article.

5. With the consent of the authorities of the Forces, the German authorities may transfer to the authorities of the Forces, for investigation, trial and decision, particular cases of the nature described in paragraph 3 of this Article in which the alleged offender is not a German.

6. In cases under paragraphs 1 and 5 of this Article, the authorities of the Forces will apply their own law. If such cases involve acts which are punishable under German law, but not under the law of the Power concerned, German law shall apply.

7. In cases under paragraphs 3 and 4 of this Article, German law shall apply.

Article 7—Arrest, Search and Seizure

1. Members of the Forces who properly identify themselves by means of an identity document issued under Article 24 of the present Convention shall not be subject to arrest by German authorities.

2. German authorities may, however, take into custody a member of the Forces, without subjecting him to the ordinary routine of arrest, in order immediately to deliver him, together with any weapons or items seized, to the nearest appropriate authorities of the Forces

(a) when so requested by the authorities of the Forces;

(b) in the following cases in which the authorities of the forces are unable to act with the necessary promptness;

(i) when apprehended in flagrante delicto

(1) for the commission or attempted commission of a criminal offence which results or might result in serious injury to persons or property, or serious impairment of other legally protected rights (Rechtsgueter); or

(2) insofar as this appears necessary to abate an already existing serious disturbance of public order;

(ii) if there is danger of flight, for the commission or attempted commission of espionage to the prejudice of the Federal Republic.

3. (a) The German authorities may search a member of the Forces or the property in his immediate possession

(i) when so requested by the authorities of the Forces;

(ii) if he is taken into custody under paragraph 2 of this Article, to the extent necessary to disarm him or to seize any item constituting proof of the criminal offence for which he is taken into custody.

(b) The provisions of the fourth sentence of paragraph 5 of Article 35 of the present Convention shall not be affected.

(c) The official quarters of a member of the Forces, or where there are none the residence occupied by him with permission of the authorities of the Forces, may not be searched by German authorities, except at the request of the authorities of the Forces. If such residence of the member of the Forces is not an installation, either his consent or that of the authorities of the Forces to be searched shall be sufficient.

4. The German authorities shall notify the appropriate authorities of the Forces of the arrest of any person working in the service of the Forces.

5. The appropriate authorities of the Forces may

(a) arrest members of the Forces;

(b) take into custody a person who is subject to German criminal jurisdiction, without subjecting him to the ordinary routine or arrest, in order immediately to deliver him, together with any weapons or items seized, to the nearest appropriate German authorities

(i) when so requested by the German authorities;

(ii) in the following cases in which the German authorities are unable to act with the necessary promptness:

(1) when apprehended in flagrante delicto for the commission or attempted commission of a criminal offence against the Forces, their members, or the security, property or other legally protected rights (Rechtsgueter) of the Forces or their members; or

(2) if there is danger of flight, for the commission, or attempted commission, of a criminal offense under Sections 1 to 9 inclusive of Annex A to the present Convention;

(iii) within an installation, when there are reasonable grounds to believe (dringender Verdacht) that his presence is unauthorised or that he has committed a criminal offence within the installation.

6. Where the authorities of the Forces believe that a person subject to German jurisdiction has been guilty of a criminal offence under Sections 1 to 11 inclusive of Annex A to the present Convention, the following special provisions shall apply:

(a) If the suspect is to be arrested by the German authorities, the authorities of the Forces shall, if practicable, be given timely notification and may designate investigators to be present at the arrest. The latter may also be present at any searches or seizures undertaken in connection with the investigation. The authorities of the Forces shall have the exclusive right for a period not to exceed twenty-one days following the arrest, to conduct interrogations of the suspect concerning any offences of which he is suspected and related matters. For this purpose their investigators shall have access to the suspect at any time. An official designated by the German investigating authority may be present at the interrogation, of the conduct of which such authority shall be given timely notification. The German investigating authority shall take appropriate measures to prevent any prejudice to the course of justice (Verdunkelungsgefahr) and shall refrain from any investigation activity of its own unless the investigators of the Forces request such investigation. During the interrogation by the investigators of the Forces, it shall, at their request, make the applications provided for in the German Code of Criminal Procedure and shall see to it that the judicial decisions suited to promote the investigation proceedings are issued and that the measures ordered in such decisions are carried out. At the conclusion of the investigation by the investigators of the Forces, in any event not later than twenty-one days after the arrest, the interrogations and the other investigation proceedings shall be continued by the German investigating authority. The investigators of the forces shall deliver to the German investigating authority all evidence collected in the course of the investigation, unless security considerations require otherwise;

(b) If the suspect is not a German, the provisions of sub-paragraph (a) of this paragraph shall apply, subject to the following proviso.

The appropriate authorities of the Forces may take the suspect into their own custody for a period of twenty-one days and may themselves conduct all interrogations and other investigations. For the judicial measures required for this period, a member of the Forces authorised to exercise judicial functions shall be assigned to the competent German courts as an assessor not entitled to vote.

7. The authorities of the Forces may search a person who is subject to German jurisdiction or the property in his immediate possession

(a) when so requested by the German authorities;

(b) if he is taken into custody under sub-paragraph (b) of paragraph 5 of this Article, to the extent necessary to disarm him or to seize any item constituting proof of the criminal offence for which he is taken into custody.

8. The constitutional immunities of the Federal President and the members of the German Federal and Land legislative bodies shall not be impaired by the provisions of this article.

Article 8—Procedure and Co-operation in Criminal Proceedings

1. The authorities of the Forces shall take such measures against members of the Forces who have committed criminal offences against German interests as they would take if such offences had been committed against the Power concerned, the Forces or their members, or their property.

2. The German authorities shall take such measures against persons subject to their criminal jurisdiction for criminal offences against the Forces, their members, or the property of the Forces or members as they would take if such offences had been committed against the Federal Republic, its Laender or its nationals, or their property.

3. (a) The authorities of the Forces shall at the request of the German authorities notify the latter of the arrest of any person for a criminal offence described in paragraph 1 of this article.

(b) The German authorities shall at the request of the authorities of the Forces notify the latter of the arrest of any person for a criminal offence described in paragraph 2 of this Article.

4. Trial of a member of the Forces for a criminal offence described in paragraph 1 of this Article, committed within the Federal territory shall be held within that territory except in cases of military exigency. When military exigency requires that the trial of such an offence be held outside the Federal territory, the authorities of the Forces shall so inform the German authorities with particulars of the time and place of trial. The German authorities shall be entitled to have observers present unless security considerations require otherwise and shall be informed of the result of the trial.

5. The German authorities and the authorities of the Forces shall extend mutual co-operation in the prosecution of criminal offences under paragraphs 1 and 2 of this Article. Unless security considerations require otherwise, they shall permit representatives of the appropriate authorities to attend the trial and, within the applicable regulations, grant them the opportunity to present their views on questions of law and fact. In addition to the cases provided under German criminal procedure, the Forces or their members shall also have the right to appear as co-prosecutors (Nebenklaeger) before German courts, to the extent that the criminal offence is directed against the security or the property of the Forces or their members or is one of the offences listed in Annex A to the present Convention. On request the German authorities and the authorities of the Forces shall inform each other of an intent to initiate, to refrain from initiating, or to discontinue a prosecution of disciplinary proceeding and of the decision.

Section II: Non-Criminal Proceedings

Article 9—Jurisdiction and Procedure in Non-Criminal Proceedings

1. Subject to the provisions of the present Convention and any other applicable agreement, German courts and authorities shall exercise jurisdiction over members of the Forces in non-criminal proceedings.

2. Unless proceedings in non-criminal matters are commenced on the application of a member of the Forces, the German courts and authorities will serve upon the member concerned the written documents or court order whereby the proceedings are commenced even if such service is not required by German law and regulations.

3. The German courts and authorities shall grant members of the Forces sufficient opportunity to safeguard their rights. If a member of the Forces is unable because of official duties or authorised absence to protect his interests in a non-criminal proceeding in which he is a participant, the German court or authority shall at his request suspend the proceeding until the elimination of the disability, but for not more than six months. The existence of the disability shall be established (glaubhaft machen) by the member of the Forces. A certificate of the ground and duration of the disability issued by the appropriate authorities of the Power concerned shall be given due weight by the court of authority. The proceeding need not be suspended if the interests of the member of the Forces can adequately be protected by a person authorized to represent him before a court or other representative entitled to safeguard his rights.

4. The members of the Forces shall enjoy the same rights as Germans in respect to the right to free judicial assistance (Armenrecht). They shall not be obligated to post security for costs of any kind in cases where Germans are free from such obligation. Certificates required to establish the right to free judicial assistance shall be issued by the appropriate consular authorities after they have made the necessary investigations.

Article 10—Enforcement of Judgments, Decisions and Orders

1. The authorities of the Forces shall, insofar as service regulations permit, take all appropriate measures to aid in the enforcement of judgements, decisions and orders (vollstreckbare Titel) of German courts and authorities in non-criminal proceedings.

2. If the enforcement of such judgment, decision or order is to be effected within an installation of the Forces, the German court or authority shall request the authority of the Forces responsible for the administration of the installation to enforce or permit the enforcement of the judgment, decision or order. The authorities of the Forces shall, if possible, comply with the request. The authorities of the Forces shall deliver to the appropriate German authority property taken by themselves for satisfaction of the judgment, decision or order.

3. Property of a member of the Forces which is certified by the appropriate authority of the Forces to be needed by him for the fulfillment of his official duties shall be free from seizure for the satisfaction of a judgment, decision or order, together with other property, tangible and intangible, which under German law is not subject thereto.

4. The personal liberty of a member of the Forces shall not be restricted by a German court or authority in a non-criminal proceeding, whether to enforce a judgment, decision or order, to compel an oath of disclosure, or for any other reason.

5. No payment due to a member of the Forces from his Government shall, except to the extent permitted by the laws and regulations of the Power concerned, be subject to any attachment, garnishment or other form of execution ordered by a German court or authority.

Section III: Provisions Common to Criminal and Non-Criminal Proceedings

Article 11—Presence in Court. Witnesses. Service of Process

1. The authorities of the Forces shall, unless military exigency requires otherwise, secure the attendance of members of the Forces whose presence is required by a German court or authority, provided that such appearance is compulsory under German law. If military exigency prevents such attendance, the authorities of the Forces shall furnish a certificate stating the basis and duration of such disability.

2. German courts and authorities shall, in accordance with the provisions of German law, secure the attendance of persons whose presence as witnesses or experts is required by a service tribunal or other authority of the Forces.

3. The provisions of paragraphs 1 and 2 of this Article shall apply mutatis mutandis to all proceedings requiring the production of evidence.

4. Subject to the provisions of the present Convention or any other applicable agreement, the privilege and immunities of witnesses and experts before German courts or authorities, and service tribunals or authorities of the Forces, shall be those accorded by the law of the court, tribunal or authority concerned. Appropriate consideration shall also be given to the privileges and immunities which the witness or expert would have before a German court if he is not a member of the Forces, or if he is a member of the Forces before a service tribunal of the Power concerned.

5. The authorities of the Forces shall permit, or themselves effect, the service of process upon any person inside an installation, and upon members of the Forces. In all other cases service shall be made or permitted by the appropriate German courts or authorities.

6. Service by German courts and authorities on members of the Forces shall not be effected by publication or advertisement.

Article 12—Obstruction of Justice

Perjury, attempts to obstruct justice, any other criminal offenses and contempts, committed before or against a German court or authority or a service tribunal or authority of the Forces, and failure to comply with process duly served in accordance with Article 11 of the present Convention shall be dealt with by the court or authority having criminal jurisdiction or disciplinary authority over the person concerned, according to its own law, as if the act had been committed before or against its own courts or authorities.

Article 13—Attorneys

1. Nations of any Power concerned and German attorneys shall not be hindered from acting as defence counsel before service tribunals in accordance with the rules and regulations prescribed for such service tribunals.

2. A person admitted to practice as an attorney in the country of one of the Powers concerned may, in proceedings in which a member of the Forces is involved, in association with a German attorney who is authorized to represent the member of the Forces in such proceedings, appear before German courts to make statements (Ausfuehrungen).

3. Except as provided in paragraphs 1 and 2 of this Article, foreign nationals may act as legal consultants, and appear before German courts, in the Federal territory only in accordance with the provisions of German law.

Article 14—Exclusion of Public. Transfer of Proceedings

The provisions of Section 172 of the German Judicature Act on the exclusion of the public from hearings of criminal and noncriminal proceedings, and of Section 15 of the German Code of Criminal proceedings. Procedure on the transfer of criminal to a court of a different district, shall be applied mutatis mutandis in cases before German courts or authorities where there is a threat to the security of the Forces or their members.

Article 15—Disclosure of Information

1. Subject to the provisions of paragraph 3 of this Article,

(a) no German court or authority shall, in any proceeding before it, require or allow any person to disclose information which would or might prejudice the security of the Forces or the Power concerned, except with the consent of the appropriate authority of the Forces or the Power concerned;

(b) no court or authority of the Forces shall, in any proceeding before it, require or allow any person to disclose any German state or official secret, except with the consent of the appropriate German authority.

2. If during proceedings it appears that the disclosure of such information or secret might result, the court or the authority, unless it is decided to dispense with the disclosure, shall, before hearing or dealing with such information or secret, request a written decision of the appropriate authority as to whether the consent required by paragraph 1 of this Article will be given. The consent will not be refused if, under the terms of the present Convention or any other agreement between the parties, the giving of information to the appropriate courts or authorities is required.

3. The provisions of this Article shall not be applied in such a manner as to limit the constitutional rights of a party to a proceeding to testify or make a factual or legal statement on his own behalf.

Article 16—Official Acts

1. Whenever, in a criminal or non-criminal proceeding before a German court or authority, it becomes necessary to determine whether the act or omission which is the subject of the proceeding occurred in the performance by the person concerned of official duty for the Forces, the German court or authority shall suspend the proceeding and shall promptly notify the authorities of the Forces, stating the facts of the case. The appropriate authority of the Forces shall investigate the case and within twenty-one days after receipt of the notification transmit to the German court or authority a certificate describing the scope of the official duties of the person concerned at the relevant time and place. The certificate shall be signed by the highest ranking representative of the Forces having personal knowledge of the matter. The authorities of the Forces shall take appropriate measures to ensure that the certificate is compiled conscientiously as to form and content. After receipt of the certificate, but no later than twenty-one days after receipt by the authorities of the Forces of the notification, the proceeding shall be continued.

2. The authorities of the Forces may also submit such certificate to a German court or authority without having received a notification from such court or authority.

3. Such certificate shall be evidence only on the scope of official duties of the person concerned and shall be conclusive to this extent. The person who issued such certificate may, however, be called as a witness to explain or amplify its contents; and further, the provisions of this paragraph shall not be applied in such manner as to limit the constitutional rights of a party to a proceeding to testify or make a factual or legal statement on his own behalf. The German court or authority shall give to the fact that the act or omission constituted the performance of official duty such legal weight and effect as it is entitled to under German law.

4. The provisions of the Article shall not apply to cases under Article 8 of the Finance Convention.

[Here follow Parts III and IV and Annexes A, B, and C which deal respectively with rights and obligations, transitional and final provisions, penal provisions, radio frequencies, and the transitional regulations for the armed forces of the European Defense Community.]

Done at Bonn this twenty-sixth day of May, 1952 in three texts, in the English, French, and German languages, all being equally authentic.

For the United States of America:

Dean Acheson

For the French Republic:

Robert Schuman

For the United Kingdom of Great Britain and Northern Ireland:

Anthony Eden

For the Federal Republic of Germany:

Adenauer

1. Source: Reprinted from Senate Q and R, pp. 89–100. Only Parts I and II of the convention are printed here. For full text, including Annexes A, B, and C, see ibid., pp. 89–130, or Cmd. 8571, pp. 17–58.