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nationals, but is a claim originating directly from Government to Government. For such a claim the mixed jurisdiction of the Egyptian Reform is not competent.
In this respect, the Arbitral Tribunal would have exclusive jurisdiction to examine the American claim. It is however questioned by the Egyptian Government whether the American Government is entitled to a pecuniary claim only based on the damage which the American citizen sustained through violation of the treaty. The Egyptian Government considers the pecuniary claim to be inadmissible because the treaty on which the alleged violated capitulation rights of the United States are based, namely, the treaty of 1830 with Turkey, granted the United States unilateral rights and because, according to international law, no claim for money in respect of violation of such a one-sided agreement could be entertained. The Arbitral Tribunal cannot acknowledge the existence of such an international rule; it will always depend upon the circumstances whether compensation in money can be claimed in respect of the violation of a valid treaty, even if it be unilateral. This treaty however cannot be described as a purely unilateral agreement. If according to paragraph 5 of the treaty of 1830 Turkey grants to the United States the exclusive right to issue criminal sentences regarding their subjects on Turkish territory by consulate jurisdiction, the Government of the United States undertake at the same time the obligation to exercise their jurisdiction on the same standard of efficiency as the native jurisdiction and consequently to employ all the necessary personal and material means required for that purpose.
C. The alleged violation of law and denial of justice by the Egyptian authorities
I. The native judicial authorities
1. The American Government considers the protocol of 27th October 1917 as the origin of all the injuries committed by the Egyptian authorities against
Salem. The original text of the protocol and of the complaint which led to its drawing up are no more existing. The American Government suggest [sic] that they have been destroyed by the Egyptian authorities; Salem and his counsel have denounced the protocol as a forgery and insinuated that the original documents have been destroyed in order to make it impossible to prove the forgery. The Egyptian Government however points out that the documents disappeared after Salem had been able to inspect them in the office of the Parquet at Mehalla with the other documents of the file of his criminal process and suggest the possibility that Salem appropriated them at this opportunity. The Arbitral Court is unable to take into consideration these suspicions of the high disputing parties; it is sufficient that acknowledged copies of the documents are in existence and that the Substitute of the Attorney General who drew up the protocol has been heard in detail by the investigating prosecutor.
If he is criticized for having taken on record the statement of a dying person who is said to have been unable to give such a statement, this criticism is nullified in the opinion of the Arbitral Tribunal by the result of the investigation. Bishay states indeed that Goubran showed great weakness and that he could only speak in a low voice; what he did say shows however that he retained his mental faculties sufficiently to comprehend the importance of the action. This appears from the great caution Goubran took not to accuse a person by name and that he confined himself in denying a sale which was rumoured to have taken place. If Bishay is further criticized for having neglected to observe certain formalities. when drawing up the protocol the Arbitral Tribunal cannot join in this accusation; the special circumstances of the case made it necessary for Bishay to repeat to his secretary the words of the patient.
The medical testimonies which were procured by the American Government to prove that Goubran was already in agony at the time the protocol was taken are not sufficient counterproofs against the protocol; it is known that persons seriously ill emerge sometimes from their state of unconsciousness for a short
period during which they keep their mental faculties intact, either without a perceptible outward cause or as the effect of an exceptionally energetic influence exerted on them as in the present case. At any rate, there is no reason to assume that the official act of Bishay was in any way influenced by hate against Salem or that he had the intention to treat him unfairly. According to the evidence of Salma Salem, Bishay himself resented keenly his awkward position at the bed of the dying man but had to carry out his official duty, taking down the necessary statements referring to a denunciation of a crime.
The assumption that Bishay received money from Adele Salem as a bribe for this official act has remained unproved.
2. No reproach can be addressed to the Parquet at Mehalla because they have not made further investigations relating to the protocol of 27th October. It contained no accusation against a certain person. On the other hand there is no reason to suspect that they regarded the protocol as forged or illegally made.
3. Salem and-on the strength of his and Me. Nassif's affidavits-the American Government describe the proceedings as if the Egyptian authorities of all degrees had illegally assisted the Persian consul general to blackmail the heirs, and especially George J. Salem, abusing the Persian nationality of Goubran Salem. But this representation does not correspond to the facts; at any rate it cannot be regarded as proved.
Under the Persian-Turkish treaty of December 1875, paragraphs 4 and 8, and the Persian laws the Persian consul was entitled to charge a fee of 6 percent of the value of the estates left in Egypt by Persian subjects who died there. If the Egyptian authorities at the request of the Persian consul general at Cairo assisted him in executing these treaty rights they have only done their duty.
The fact that they did not refuse this assistance when the Persian consul general proceeded against George J. Salem on account of his opposition to the trustee Isfahani appointed by the consul to take possession of the inheritance, must be taken as a legal
attitude of the authorities as long as it could be assumed that a criminal case between Persian subjects was at stake.
After the heirs of Goubran Salem denied they were Persian subjects and claimed to be Egyptians, the dispute regarding the inheritance was duly transferred to the mixed jurisdiction. Neither was any irregularity concerned when the Mixed Court of Appeal by a decree refused to acknowledge the appointment of Isfahani and appointed Fadwa Hawara, a coheir, as trustee of the inheritance. The claim for damage, which Salem originally raised with regard to this appointment and the alleged bad management by the trustee, has not been maintained by the American Government.
4. When Isfahani made his accusation against Salem for forgery of the certificate of 26th January 1917 and when he constituted himself as a civil party in the criminal proceedings he was as yet [sic] entitled to do so by virtue of his official appointment. Ibrashy Bey acted therefore legally when he opened the investigation. The protocol of October 27, 1917, furnished sufficient grounds for this. The Arbitration Court had the impression from the English translation of the Arabic protocols relating to the investigation that it had been carried out by Ibrashy Bey with great care and that the witnesses for the accused had been heard in full detail. No trace of a prejudice against the accused can be noticed. After all, the result of the investigation has not been, as the American Government states, such as to obviously expose the weakness of the evidence furnished for the accusation and in consequence to show the illegality of the trial before the criminal court. There are certain facts which were manifested by the investigation or which became known later on and which are difficult to conceive if it is supposed that the deed dated 26th January 1917 was really acted [sic] shortly after that date. The details need not be referred to, as it is not the task of this Arbitral Tribunal to decide the question of the genuineness or falseness of this document, a question decided on behalf of American jurisdiction by the consular decree ordering the discontinuation of the criminal proceedings against Salem
and on behalf of the Egyptian jurisdiction by the sentence of the Criminal Court of Appeal at Tantah declaring its incompetence. For the Arbitral Tribunal it is sufficient to state that by summoning Salem for trial no attempt to violate the law can be found.
In particular the methods used in procuring Seoudy's opinion are not, as the American Government believes, an indication of partiality. Seoudy, it is true, was not registered in the roll of experts admitted to the native courts to which the Parquet, by the rules of procedure, were bound to refer; he was however a qualified official of the Ministry of Justice and, according to the rules, could legally in view of his special qualifications, be commissioned to deliver such opinions. The Arbitral Tribunal is unable to decide whether his opinion is scientifically defendable or not; if the arguments of the American Agent seem to put forward important reasons for its incorrectness, it cannot be concluded therefrom that Ibrashy Bey partially disregarded the law in relying, ainong other evidence, upon this opinion when he opened proceedings before the criminal court.
The American Government take it indeed already as a culpable violation of the rights of Salem that, according to Egyptian law, the public prosecutor who was charged with the investigation was likewise entitled to open the trial, combining thereby in his person the role of accuser, investigating magistrate and judge deciding on the opening of the trial; they assert that such a method of jurisdiction does not procure the accused with sufficient guarantees against a frivolous injury done to his reputation by public criminal proceedings due to an indictment for which no sufficient grounds of suspicion exist. The American Government relies [sic] upon principles of the AngloSaxon law according to which a special jury other than that judging the crime is charged with the decision if the accused shall be brought to trial or not. But in the different codes of criminal procedure in force with civilized nations this sort of guarantee is not so general that another method of preparing the trial could be designated as being below the standard of international law. The system whereby the trial is preceded by an investigation executed by a judge