Ernest and Olga Sch v Dr P

Date26 août 1942
Docket NumberCase No. 91
CourtCourt of Appeal of Zurich (Switzerland)
Switzerland, Court of Appeal of Zürich.
Case No. 91
Ernest and Olga Sch.
Dr. P.

Treaties — Operation of — Actual Operation of Law notwithstanding Temporary Extinction and Dismemberment of Contracting Parties.

The Facts.—A married couple resident in Zagreb (Yugoslavia), then under the control of a German-controlled puppet Government of Croatia, commenced an action in the Swiss Canton of Zürich against a Swiss citizen. They were required by the Court to furnish security for costs on grounds of their foreign residence and the absence of any treaty waiving this requirement. On appeal,

Held: that the order must be reversed. The Court said: “Zagreb (Agram), the place of residence of the appellants, belonged to the Kingdom of Yugoslavia until, the latter having been occupied by the Axis Powers and divided amongst the neighbouring States, it fell to Croatia, becoming the capital of this new kingdom. Whether this change had any validity in international law and whether, in particular, it should be recognised de jure by Switzerland are questions the answers to which will provide no solution to the point at issue, namely, how the rules for the facilitation of international legal relations which are contained in the Hague Convention on Civil Procedure are to be applied. What is decisive is that, according to the communication of the Federal Department of Justice and Police to counsel for the appellants, dated September 30, 1941, the new Kingdom of Croatia had not then acceded to the Hague Convention, and that nothing, in the shape of an official Croatian statement that it is in practice applied, has been produced. But it does appear from the said communication that, in so far as concerns service and the administration of interrogatories (which are dealt with by Articles 1–16 of the Convention), legal assistance does in fact continue to be furnished as between Croatia and Switzerland to the same extent that it was previously provided between Switzerland and Yugoslavia upon the basis of the conventional provisions mentioned. The Department of Justice and Police considered that the most sensible and practical solution of the difficulty, pending the replacement of the former treaty régime, is, seeing that the situation in Croatia is in...

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