The Facts.—The appellant, formerly a citizen of the canton of Zürich, on February 27, 1947, married Richard Rosenthal, a Jewish refugee from Germany resident in Switzerland. Rosenthal's German passport was no longer valid, and he assumed that he had lost German nationality in pursuance of a German decree of November 20, 1941, which denationalized German Jews resident abroad. The appellant claimed that she retained her Swiss nationality by virtue of Article 5 of the Order of the Swiss Federal Council of November 11, 1941, which provided that a Swiss woman may retain her nationality on marriage if she does not acquire that of her husband. The Federal Department of Justice and Police decided on October 9, 1947, that the appellant lost her Swiss nationality on marriage. It did so on the ground that there was insufficient evidence that Rosenthal had actually lost German nationality. In support of its attitude the Federal Department cited the earlier judgment of the Federal Tribunal in  Levita-Mühlstein v. Département Fédéral de Justice et Police , reported in Annual Digest, 1946, Case No. 58. Appeal was now brought against the decision of the Federal Department.

Held: that the decision of the Federal Department of Justice and Police of October 9, 1947, must be annulled, and that it would be placed on record that the appellant retained Swiss nationality on marriage. It was sufficiently clear that her husband lost German nationality in pursuance of German racial legislation. The repeal of that legislation by the Allied forces of occupation had no retroactive force. The Court said:

‘A Swiss woman who marries an alien does not lose her Swiss nationality if such loss would make her stateless. She is not deemed to be threatened with statelessness if the national law of the husband automatically confers nationality on the wife, or grants the wife the opportunity of acquiring it. She also does not become stateless if she possesses, at the time of marriage, a second nationality which is not lost by virtue of the marriage. In all other cases she would become stateless if she were to lose Swiss nationality. Such a consummation is contrary to Swiss public policy.

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15  ILR

256

‘Statelessness in this connection may result from two circumstances. The first is the denial of nationality to the wife by the national law of the husband. The other is the statelessness of the husband. It is, accordingly, the duty of the Court to inquire into the status of the husband, and into the provisions of his national law relating to the acquisition of nationality by marriage. … It is immaterial whether the foreign law in question satisfies Swiss notions of public policy. The same is true of the law which is responsible for the possible statelessness of the husband. The contrary view expressed in the decision in the  Levita-Mühlstein Case cannot be maintained.

‘According to German law a woman who marries a German national automatically acquires the nationality of the husband. If Rosenthal was a German national on February 27, 1947, the appellant acquired German nationality by marriage and lost Swiss nationality. Whether he was, in fact, a German national is determined by German law.

‘Mrs. Rosenthal invokes German legislation for the purpose of demonstrating that her husband no longer possessed German nationality at the time of the marriage. The Federal Department, on the other hand, demands the submission of a certificate from the competent foreign administrative authority confirming the loss of nationality, or of evidence of a final individual decision of an authority with jurisdiction in matters of nationality. In the  Levita-Mühlstein  case a certificate or decision of the competent foreign authority was required in view of the difficulties which were encountered in that case in the determination of the nationality of the husband. Such an affidavit is not, however, required if the statelessness of the husband can be established with sufficient certainty. This is the case here.

‘The Elfte Verordnung zum Reichsbürgergesetz of November 25, 1941, deprived Jews normally resident abroad of German nationality. Jews normally resident abroad at the time of the promulgation of the Ordinance were to lose their nationality at the moment of its entry into force. … A Jew was defined as a person who satisfied the qualifications set out in the Erste Verordnung zum Reichsbürgergesetz of November 14, 1935. “Normal residence” abroad was considered to be established “when a Jew resides abroad in circumstances which suggest that his stay is not temporary”.

‘Richard Rosenthal is a Jew in the meaning of the German legislation. This emerges from his passport of January 19, 1939, in which his subjection to the German racial laws is evidenced by the addition of the name “Israel”, the distinguishing mark of Jews after January 1, 1939. He was also expressly debarred from entry into the armed forces on the ground of his race. Since 1939 he has been resident in Switzerland. At the time of the promulgation of the Elfte Verordnung his “normal residence” was thus in Switzerland. Accordingly, he

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15  ILR

Rosenthal v. Eidgenössisches Justiz- und Polizeidepartement

257

was denationalized by that Ordinance. The German authorities have, since its entry into force, declined to renew his passport, and have thus withdrawn diplomatic protection from him. Rosenthal thus became stateless by operation of the law of his former nationality. He has remained stateless. Admittedly the German racial laws were repealed by the Allied Military Government on September 18, 1944, and by the Allied Control Council for Germany on September 20, 1945. However, these two laws have no retroactive effect. Moreover, they apply exclusively in the occupied territory. The assumption, in the  Levita-Mühlstein  case, that the legal effects of the racial legislation would be retroactively abrogated and, in particular, that denationalized German citizens would automatically recover their former nationality, has not proved correct.’