Anastasia decision

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The Anastasia decision of the Federal Court of Justice of February 17, 1970 is a fundamental decision on the question of how far the judge's conviction has to go in civil proceedings. In this context, the Federal Court of Justice coined the formula:

"The judge can and must be content with a degree of certainty that is useful for practical life in actually dubious cases, which commands silence to the doubts without completely excluding them."

This formulation describes the degree of probability in German civil procedural law that the court believes that a decisive circumstance must have in order to base a court decision on it. This degree is rated differently in other European legal systems; in British law, for example, an overwhelming probability is sufficient.

facts

Grand Duchess Anastasia Nikolaevna of Russia

In 1905 and 1906, Nicholas II , ruler of the Russian Empire , had assets brought to Germany for his children, in particular he had securities accounts set up at the Mendelssohn bank in Berlin. As a result of the February Revolution in 1917, the Tsar abdicated on March 15, 1917. The royal family was arrested in connection with the October Revolution and brought to Yekaterinburg in the spring of 1918 , where they were housed in the house of a merchant. On the night of July 17, 1918, the members of the family and their servants were awakened and sent to the basement of the building, where they were murdered . The point of dispute was whether the youngest daughter of the Tsar, Anastasia Nikolaevna , had survived and whether the plaintiff in the main proceedings was identical to her.

"Anna Anderson", 1920

On February 17, 1920, the future plaintiff was rescued from the Berlin Landwehr Canal, apparently after attempting suicide. The German authorities gave her the name Anna Anderson . She came into contact with Russian emigrant circles and finally claimed to be the Grand Duchess Anastasia, who had survived. The question of the plaintiff's identity with Anastasia was quite controversial in public, and camps of supporters and opponents of the alleged Anastasia were formed. On the one hand, based on memories that only the Grand Duchess could have, it was argued that she was certainly the Tsar's daughter. Some people also agreed to testify that they recognized the plaintiff. Others countered discrepancies in the portrayal of the alleged Grand Duchess and assumed that the Berlin police had already proven in 1925 that it was not the Tsar's daughter. Investigations of the remains of the tsar's family, which were only possible after the dissolution of the Soviet Union , ultimately showed that there was a high probability that all members of the tsar's family were killed. At the time of the decision, however, these examinations were not yet possible because, on the one hand, the remains were not accessible to West German authorities and, on the other hand, the method used, the so-called genetic fingerprint, was not developed until 1984.

In 1932 and 1933, certificates of inheritance were issued to relatives of the tsarist family in Germany, including a certificate of inheritance by the Central District Court on September 8, 1933 , in which Princess Irene of Hesse and Rhine was named as one-sixth co-heir . The defendant in the court proceedings from 1958 was the granddaughter and sole heir of the princess, Barbara Duchess of Mecklenburg (1920–1994), daughter of Sigismund von Prussia and since 1954, married to Christian Ludwig Herzog of Mecklenburg, who died in 1953 .

Procedure

The legal dispute leading to the Federal Court of Justice was preceded by numerous other proceedings. From 1929 Anna Anderson was represented by the American lawyer Edward Huntington Fallows (1865-1940). In 1938, he entrusted the lawyers Paul Leverkuehn and Kurt Vermehren with representing their claims to the assets of the royal family in Germany before German courts. A lawsuit opened in the UK was abandoned because of the outbreak of World War II ; German courts had to deal with the case from 1938.

The Hanseatic Higher Regional Court of Hamburg

The actual legal dispute began before the Hamburg Regional Court , which decided after taking evidence in 1961 that it was convinced that the plaintiff was not Anastasia. An appeal was lodged against the judgment of the regional court at the Hanseatic Higher Regional Court in Hamburg . Extensive evidence was taken there again. Among other things, the historian Egmont Zechlin was interviewed as an expert as to whether an event alleged by the plaintiff was historically possible. In 1967 the higher regional court ruled against the plaintiff. It assumed that the burden of proof to prove the identity as Anastasia rests with the plaintiff. The Higher Regional Court was convinced that this evidence had not been provided. Because of the extensive evidence, an auxiliary senate was set up at the Hamburg Higher Regional Court to justify the judgment, which only had to deal with the grounds for the judgment in this case.

Gerhard Mauz had already commented in 1967 after the proceedings before the Hamburg Higher Regional Court:

“In the secret kingdom of law, of all places, in civil proceedings, the impotence of all efforts for the truth is demonstrated. The Hamburg Higher Regional Court could not see more than this: that Anna Anderson has not sufficiently proven to be Anastasia. "

- Gerhard Mauz : The mirror

The judgment of the Higher Regional Court was seen not only as a defeat on the part of the plaintiff. Since the defendant wanted to prove that Anna Anderson as the plaintiff was not Anastasia, but Franziska Schanzkowski, who had been missing since 1920, it was sufficient to establish that the plaintiff was Anastasia, not that the identity as Schanzkowski had been proven.

Decision of the BGH

The decision of the Court of Appeal the applicant as a result put unsuccessfully revision one. The reason for the revision was that it was a dispute over the question of the plaintiff's naming rights. This is part of the general right of personality and is covered by the human dignity guarantee of the Basic Law. Because the plaintiff's fundamental rights are affected , the rules of evidence would have to be facilitated and credibility would have to be sufficient. The Federal Court of Justice, however, pointed out that it was alternatively possible for the plaintiff to have her identity determined ex officio through civil status proceedings. That is why the required easing of the standard of proof to mere credibility should be rejected.

Cultural-historical significance of the Anastasia case

Marcelle Mauretti wrote a play that was one of the most successful performances of the season in New York in 1955 . In 1956 the life of Anna Anderson with Ingrid Bergman in the leading role was filmed under the title Anastasia on the basis of the play. The rights to the naming of the film with "Anastasia" were acquired by the plaintiff in the later legal dispute through the studio. Also in 1956 was the German film Anastasia, the last daughter of the Tsar with Lilli Palmer in the role of Anna Anderson / Anastasia. In 1986, the American-Italian co-production Anastasia: The Mysterie of Anna , directed by Marvin J. Chomsky , was based on the facts known at the time. In 1997, 20th Century Fox released the animated film Anastasia , which was nominated for two Academy Awards. The animation of the characters was based on the film adaptation with Ingrid Bergman from 1956, but otherwise this film adaptation followed the aesthetics of films by Walt Disney Studios . Overall, he is rather carefree with historical facts.

literature

Individual evidence

  1. ^ BGH judgment of February 17, 1970 - III ZR 139/67, printed in BGHZ Volume 53, pages 245-264 (also: Neue Juristische Wochenschrift 1970, page 946 ff.), BGH judgment of February 17, 1970 (III ZR 139/67) ( Memento from September 6, 2012 in the web archive archive.today ) at eJura, accessed on February 19, 2012.
  2. ^ Ivo Giesen: The Burden of Proof and Other Procedual Devices in Tort Law . In: European Tort Law 2008 . Springer Science + Business Media, Vienna 2009, ISBN 978-3-211-92797-7 , p. 49 ff., p. 54 (No. 13 with further examples from other European legal systems).
  3. ↑ Dominik Reinle: 90 years ago: The Anastasia legend comes into being - the maid makes the tsar's daughter. In: WDR.de. Westdeutscher Rundfunk, February 17, 2010, accessed on February 19, 2012 .
  4. ↑ a b c d Gerhard Mauz: A rescue that Mother Russia managed? In: Der Spiegel . No. 11 , 1967 ( online ).
  5. ↑ Felix Dassel: The "Case of Anastasia" . In: The time . No. 52/1955 . Zeitverlag Gerd Bucerius, 1955, ISSN  0044-2070 ( online [accessed February 19, 2012]).
  6. ↑ a b c Ferdinand Friedensburg : Anastasia and no end . In: The time . No. 2/1956 . Zeitverlag Gerd Bucerius, 1956, ISSN  0044-2070 ( online [accessed February 19, 2012]).
  7. ↑ a b c Martin Rath: 40 years of textbook case “Anastasia”: The Russian princess who wasn't. In: Legal Tribune Online. Wolters Kluwer Germany, September 12, 2010, accessed February 19, 2012 .
  8. ↑ MD Coble, OM Loreille, MJ Wadhams, SM Edson, K. Maynard, CE Meyer, H. Niederstätter, C. Berger, B. Berger, AB Falsetti, P. Gill, W. Parson, LN Finelli: Mystery solved: the identification of the two missing Romanov children using DNA analysis. In: PloS one. Volume 4, number 3, 2009, p. E4838, doi: 10.1371 / journal.pone.0004838 , PMID 19277206 , PMC 2652717 (free full text).
  9. ↑ See Edward Huntington Fallow's "Anastasia" papers: Guide ( Memento July 13, 2010 in the Internet Archive ) in the Harvard University Library
  10. ↑ a b c Ruth Herrmann: Anderson, alias Anastasia . In: Die Zeit , No. 9/1967.
  11. ↑ Anastasia in the Internet Movie Database (English)
  12. ↑ Anastasia, the last daughter of the Tsar in the Internet Movie Database (English)
  13. ↑ Anastasia in the Internet Movie Database (English)
  14. ↑ Stephen Holden : Anastasia (1997) - Film Review; A Feeling We're Not in Russia Anymore In: New York Times , November 14, 1997. (English)