Diplomatic Immunity

THE KHOBRAGADE CONTROVERSY

Facts of the case as reported in the media:

1. A member having a “diplomatic rank” among the “diplomatic staff “ of a “Sending State” opts to employ a “private servant” originating from the “Sending State” in a “Receiving State”.
2. The visa documents of the “Private Servant” in the receiving state are processed by the “Private Servant” to the fullest knowledge and concurrence of the “diplomatic ranked staff”.
3. The visa forms of the "receiving state" clearly warn that any false statement made therein will amount to the offence of perjury by the persons responsible for it under the laws of the "receiving state".
4. The “private servant” complains to the enforcement agencies in the "receiving state" that she is not getting the compensation disclosed in her visa document and she is getting much less that what was disclosed in her visa and that the compensation paid is below the minimum wages applicable in the “receiving state” and that she is being forced to work beyond 40 hours each week.
5. The matter is investigated by the concerned enforcement agency of the "receiving state" and it is found that the claims and information provided in the visa are false and amount to the offence of perjury among other offences in the “receiving state”.
6. The diplomatically ranked staff of the “Sending State” is apprehended by the police of the "receiving state" outside her place of employment and in the streets during the day and taken into police custody as per the standard procedure followed by the police in the receiving state. She is strip searched as per the customary standard procedure followed in the receiving state for its own citizens and placed in police custody.
7. A few hours later she is produced before a jurisdictional court and her bail application is moved by her attorneys.
8. The bail applications is considered by a Judge and she is enlarged at bail upon her fulfilling all imposed bail conditions.
9. The government of the “sending state” complains to the government of the “receiving state” that there is violation of Article 29 of the Vienna Convention on Diplomatic Relations and that the treatment meted out to a diplomatically ranked staff of the receiving state is against Article 29 and 31 of the Vienna Convention on Diplomatic Relations.
10. The government of the “receiving state” denies that there is any violation and that this was a standard procedure followed by their police.
11. It is also pointed out by the government of the “receiving state” that diplomatic immunity cannot inure to the benefit of the arrested diplomat in this case since the offence willfully violates laws and relates to perjury. Moreover, the diplomatic was accorded the very same treatment that any citizen of the “receiving state” would get in a similar situation.
12. The “sending state” retaliates by withdrawing security cover for the Embassy and Consular offices of the receiving state in the country of the sending state.
13. The issue of arrest, search and detention is alleged by the “sending state” to violate the Vienna Convention on Diplomatic Relations.
14. Politicians and Ministers in the central cabinet including the Prime Minister of the Country of the sending state disapprove the arrest, detention, search and continuance of the case by the receiving state. Relations between the sending state and the receiving state are at a stand off with regard to continuance of consular functions between the states.
15. The government of the receiving state issues a official statement that there is violation of Article 22, 44 and 45 of the Vienna Convention on Diplomatic Relations due to the retaliatory measures imposed by the sending state in withdrawing certain established privileges and security measures intended for the protection to its mission premises and consular offices and “members of the mission”, placed by the “receiving state" within the cities of the "sending state”.

APPLICABLE LAWS:

(a) The particular federal regulations of the “receiving state” with regard to concoction of fraudulent immigration visa documents.

(b) The State wise employment and wage laws relating to non payment of minimum wages to a Private Servant in the “receiving state”.

(c) The diplomatic immunity and privileges generally extended under the Vienna Convention of Diplomatic Relations 1961 to the diplomatically ranked staff of the “sending state”.

(d) The Diplomatic Relations (Vienna Convention) Act, 1972 (Act No. 43 of 1972)

Questions of Law:

1. Whether a “diplomatic agent” of a sending state having diplomatic status can avoid criminal prosecution for offence of perjury, falsification of documents, fraud, non-payment of statutory minimum wages etc by taking refuge under the Vienna Convention on Diplomatic Relations 1961?
2. What is the appropriate police treatment to be meted to a person enjoying a diplomatic status?
3. Whether the Fourth Amendment to the U.S Constitution permits a jail to conduct a suspicion-less strip search upon arrest of a person having a diplomatic status no matter what the circumstance or nature of the offence?
4. Whether a “sending state” can vindictively withdraw established immunity and privileges such as recalling “airport passes”, Import concessions, security protocols to mission premises of a “receiving state”?

DISCUSSION:

International convention on diplomatic interactions, privileges and immunity are expected to contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems. It is also important to realize that the purpose of such privileges and immunity is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States, Here are some relevant portions of the Vienna Convention on Diplomatic Relations.

Under Article 10 (c) of the Vienna Convention on Diplomatic Relations 1961, the arrival and departure of private servants in the employ of members of the mission are to be be notified in advance to the receiving state. If the private servant leaves employment of the member of the mission then this fact also must be notified to the receiving state.

Under Article 22 (2) a receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.

Under Article 26 subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory. Under sub clause 7 a diplomatic bag may be entrusted to the captain of a commercial aircraft scheduled to land at an authorized port of entry. The captain shall be provided with an official document indicating the number of packages constituting the bag but he shall not be considered to be a diplomatic courier. The mission may send one of its members to take possession of the diplomatic bag directly and freely from the captain of the aircraft.

Under Article 29, the person of a diplomatic agent shall be inviolable and shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his/her person, freedom or dignity.

Under Article 31 (1) a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State and shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his/her official functions.

Under Article 33 (1), Subject to the provisions of paragraph 3 of this Article, a diplomatic agent shall with respect to services rendered for the sending State be exempt from social security provisions which may be in force in the receiving State. Under sub clause (2), the exemption provided for in paragraph 1 of this Article shall also apply to private servants who are in the sole employ of a diplomatic agent, on condition:

a. that they are not nationals of or permanently resident in the receiving State; and

b. that they are covered by the social security provisions which may be in force in the sending State or a third State.

Under Article 33 (3) a diplomatic agent who employs persons to whom the exemption provided for in paragraph 2 of this Article does not apply shall observe the obligations which the social security provisions of the receiving State impose upon employers.

Under Article 33 (4), The exemption provided for in paragraphs 1 and 2 of this Article shall not preclude voluntary participation in the social security system of the receiving State provided that such participation is permitted by that State.

Under Article 33(5) The provisions of this Article shall not affect bilateral or multilateral agreements concerning social security concluded previously and shall not prevent the conclusion of such agreements in the future.

Under Article 34

A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal, except:

a. indirect taxes of a kind which are normally incorporated in the price of goods or services;

b. dues and taxes on private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

c. estate, succession or inheritance duties levied by the receiving State, subject to the provisions of paragraph 4 of Article 39;

d. dues and taxes on private income having its source in the receiving State and capital taxes on investments made in commercial undertakings in the receiving State;

e. charges levied for specific services rendered;

f. registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property, subject to the provisions of Article 23.

Under Article 35

The receiving State shall exempt diplomatic agents from all personal services, from all public service of any kind whatsoever, and from military obligations such as those connected with requisitioning, military contributions and billeting.

Under Article 36

1. The receiving State shall, in accordance with such laws and regulations as it may adopt, permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services, on:

a. articles for the official use of the mission;

b. articles for the personal use of a diplomatic agent or members of his family forming part of his household, including articles intended for his establishment.

2. The personal baggage of a diplomatic agent shall be exempt from inspection, unless there are serious grounds for presuming that it contains articles not covered by the exemptions mentioned in paragraph 1 of this Article, or articles the import or export ofwhich is prohibited by the law or controlled by the quarantine regulations of the receiving State. Such inspection shall be conducted only in the presence of the diplomatic agent or of his authorized representative.

Article 37

1. The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in Articles 29 to 36.

2. Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in Articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of Article 31 shall not extend to acts performed outside the course of their duties. They shall also enjoy the privileges specified in Article 36, paragraph 1, in respect of articles imported at the time of first installation.

Article 42

A diplomatic agent shall not in the receiving State practice for personal profit any professional or commercial activity.

Article 44

The receiving State must, even in case of armed conflict, grant facilities in order to enable persons enjoying privileges and immunities, other than nationals of the receiving State, and members of the families of such persons irrespective of their nationality, to leave at the earliest possible moment. It must, in particular, in case of need, place at their disposal the necessary means of transport for themselves and their property.

Article 45

If diplomatic relations are broken off between two States, or if a mission is permanently or temporarily recalled:

a. the receiving State must, even in case of armed conflict, respect and protect the premises of the mission, together with its property and archives;

b. the sending State may entrust the custody of the premises of the mission, together with its property and archives, to a third State acceptable to the receiving State;

c. the sending State may entrust the protection of its interests and those of its nationals to a third State acceptable to the receiving State.

From a careful and conjoint reading of the above Articles of the Vienna Convention, it is clear that a “diplomatic agent” of a sending state having diplomatic status cannot lawfully avoid criminal prosecution for offence of perjury, falsification of documents, fraud, non-payment of statutory minimum wages etc by taking refuge under the Vienna Convention on Diplomatic Relations 1961? since such immunity is extended only for official functions and not for a wrongful action relating to falsification of the travel documents of her Private Servant and violation of beneficial labor laws intended to protect the rights of labor. 

Under Article 31 (1) a diplomatic agent shall not be able to enjoy immunity from the criminal jurisdiction of the receiving in the case of an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his/her official functions.

In the circumstances the police treatment meted to a person enjoying a diplomatic status for violation of the laws of the receiving state is no different from the treatment normally extended to its own citizens and found to be constitutionally tested and found to be valid. Under Article 29, the person of a diplomatic agent shall be inviolable and shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his/her person, freedom or dignity. But, is not this kind of treatment any person is entitled to as an accused in a case. The Fourth Amendment to the U.S Constitution has been interpreted by the U.S Supreme Court to constitutionally validate and lawfully permit a jail to conduct a suspicion-less strip search (Florence v. Board of Chosen Freeholders of the County of Burlington) upon arrest of a person, no matter what the circumstance or nature of the offence and even in the most innocuous of infractions.

A sending state” cannot vindictively withdraw established immunity and privileges such as recalling “airport passes”, Import concessions, security protocols to mission premises of a “receiving state since that would violate Article 44 that mandates that a receiving State must, even in the worst case scenario of an armed conflict, grant facilities in order to enable persons enjoying privileges and immunities. It must, in particular, in case of need, place at their disposal the necessary means of transport for themselves and their property. Furthermore,under Article 45 even in the worst case scenario of the break-up of diplomatic relations between two States, respect and protect the premises of the mission, together with its property and archives.