61340 Vorabseiten_e - Unabhängige Expertenkommission Schweiz

Heynau’s petition against the Olmütz branch of Böhmische Unionbank and
instructed Gossau’s local administration to transfer the 4,273 francs
deposited by the brewery to the plaintiff. The bank was also ordered to pay
the Court’s costs. In its judgment, the Court invoked, inter alia, Swiss ordre
public in order to deny the application of the Government Ordinance in
Switzerland. The Court held that the Ordinance «violated intolerably» the
principle of the inviolability of property enshrined in Swiss law and therefore
conflicted with Swiss ordre public. St. Gallen Cantonal Court concluded that
the assignment of the funds to Böhmische Unionbank was not relevant for
the Swiss judiciary.
The I. Civil Department of the Federal Supreme Court confirmed St Gallen
Cantonal Court’s judgement in its decision of 22 December 1942. The Court
left no doubt that the forced administration which formed the basis for the
assignment of the funds to Böhmische Unionbank constituted a grave
violation of Swiss public order. The Court found that the measure grossly
violated the principles of equality and the protection of property, which were
fundamental elements of the Swiss legal order.
«This ordinance constitutes such a flagrant disregard for the plaintiff’s
property rights that it blatantly conflicts with the fundamental bases of
Swiss law. It conflicts with the principle of recognition of private
ownership, which precludes expropriation by the state without compensation,
as well as the principle of legal equality, which does not permit
any intervention in an individual’s proprietary rights solely on grounds of
race.» 129
In judicial practice, however, the view that Nazi racial laws constituted injustice
caused problems when its application by the German authorities had created a
fait accompli. This is reflected in the practice of the Federal Supreme Court after
the war, especially in cases concerning the expatriation of German Jews 130 and
various insurance-related cases. 131
Administrative practice did not always accord with the jurisprudence of the
Swiss courts which is described here. In this respect, the authorities’ approach
to the Nazi prohibition on «marriage between Jews and nationals of German or
related blood» is instructive: having adopted the categories «Aryan» and «non-
Aryan» without question, 132 the Federal Office of Civil Status (Eidgenössisches
Amt für Zivilstandsdienst, EAZD) took the view that, based on the Hague
Convention concerning marriage of 12 June 1902, 133 German Jews could not
be granted permission to marry in Switzerland as they were subject to the
«marital impediment of mixed race» in Germany. 134 The granting of permission
412