Public Prosecutor v Aerts

• Jurisdiction: Marruecos
• Date: 10 March 1939
• Court: Mixed Tribunal (Morocco)
• Docket Number: 23

Tangier, Mixed Tribunal (Appeal Section).

Case No. 23

Public Prosecutor

and

Aerts.

International Law — Relation to Municipal Law — International City of Tangier.

Individuals — Position of — Access to International Tribunals — International City of Tangier.

Aliens — Position of — Equality of Treatment and Freedom of Commerce.

Treaties — Operation of — Conflict between Municipal Law and Treaty — City of Tangier.

Territories under International Government — City of Tangier — Status of — Legislation Infringing the Statute and Relevant Treaties — Functions of Legislative Assembly, of Committee of Control, and of the Administrator — Absence of Ordinary Division of Powers — Conflict between Municipal Law and Treaties — Aliens — Position of — Equality of Treatment and Freedom of Commerce.

The Facts.—On November 2, 1938, the Legislative Assembly of the Zone of Tangier passed a law which prohibited the installation or exploitation of broadcasting stations. The Law provided that, within one month from the date of its publication, the owners, possessors, or users of broadcasting stations shall dismantle them. No indemnity was provided. The penalty for non-compliance with the provisions of the Law was imprisonment and fine combined with the confiscation and destruction of the apparatus used for broadcasting. After having been approved by a majority of the Committee of Control of the City of Tangier, the Law was promulgated on November 15, 1938. In 1936, Pro-Radio, a Belgian Company, had erected at Tangier a private broadcasting station which had begun to operate in 1937 under the name of Radio-Tangier. The station continued to operate for one month after the promulgation of the Law. On December 16, 1938, the Administrator of the Zone of Tangier ordered the police to seize the apparatus. At the same time a prosecution was instituted against Aerts, one of the directors of “Pro-Radio”, and Azerraf, the manager of “Radio-Tangier”.

The Mixed Tribunal of Tangier, sitting as a court of first instance, acquitted the accused and declared the seizure of the apparatus to be void, on the ground that the Law of November 2, 1938, was unconstitutional. The Public Prosecutor appealed. The accused contended that the Law of November 2, 1938, was unconstitutional and contrary to existing treaty provisions. They relied on the Act of Algeciras of April 7, 19061 (apparently Article 105 of the Act), the Paris Convention of December 18, 1923, as revised on July 25, 1928, on the Organisation of the Statute of the Tangier Zone, Article 11 of the Shereefian Dahir Organising the Administration of the Tangier Zone, and Article 1 of the Tangier Code concerning the Civil Status of Foreigners.

Article 105 of the Act of Algeciras began as follows:

“With a view to insure the application of the principle of economic liberty without inequality, the Signatory Powers declare …”

Article 7 of the Paris Convention of December 18, 1923,1 provided:

“The Tangier Zone shall respect all treaties in force. Economic equality among nations, resulting from such treaties, shall continue to be observed in Tangier, even if the said treaties are subsequently abrogated or modified.”

Article 14 provided:

“In default of the institution by the Tangier Zone of a local interurban postal, telegraph, and telephone service, which shall only be effected with the unanimous approval of the Committee of Control, the Powers signatories of the Act of Algeciras shall be permitted to maintain at Tangier the post offices and cable stations which they possess there at the date of the entry into force of the present Convention. …

“There shall be no prejudice to the rights of States or Companies actually in possession of telegraph cables landing at Tangier. …”

Article 30 (5) provided:

“It will be the duty of the Committee of Control to ensure the observance of the régime of economic equality and the provisions of the Statute of Tangier.”

Article 11 of the Shereefian Dahir Organising the Administration of the Tangier Zone provided:

“The Administration of the Zone shall respect the Treaties at present in force between Us and the Powers. International agreements to which all the Powers signatories of the Act of...