Diplomatic Immunity

DIPLOMATIC IMMUNITY

Atty. Judiel M. Pareja

INTRODUCTION

Diplomatic immunity is a principle of International Law that provides foreign diplomats with protection from legal action in the country in which they work, so that they can perform their duties with freedom, independence, and security.

The most relevant article relating to immunity is Article 31: “A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction” (Article 31, 1).

Pursuant to Article 31, the diplomat loses civil immunity in three situations: (1) when there is a dispute over “private immovable property” in the receiving State; (2) if the diplomat is acting as an administrator, executor, or inheritor in his capability as a private person; or (3) if the diplomat undertakes a commercial or professional activity which is not part of his official functions.

If a diplomat, or one of his/her family members, has ever committed a serious crime, the receiving State has the right to declare the offender persona non grata (PNG) at any time, meaning he or she is no longer welcome in the country.

On the other hand, under Article 41 of the Vienna Convention on Consular Relations, a consular officer does not enjoy immunity from the criminal jurisdiction of the receiving State. Under Article 43 of the Vienna Convention on Consular Relations, consular officers are not amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.

However, this does not apply in respect of a civil action either: (a) arising out of a contract concluded by a consular officer in which he did not contract expressly or impliedly as an agent of the sending State; or (b) by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel, or aircraft.

The preamble of the Vienna Convention states the view of the participating states on the theoretical basis of diplomatic privileges and immunities. It also states that the purpose of the Convention is “the development of friendly relations among nations, irrespective of their differing constitutional and social systems” (Vienna Convention on Diplomatic Relations, Preamble).

BASIS

The personal representation theory is based on the idea that the diplomat is a representative of a sovereign State, and as the representative he is entitled to the same privileges as the sovereign. Under this theory the diplomat is viewed as the representation of the head of the sending State (V. L. Maginnis 2003).

The theory of extraterritoriality suggests that the property of a diplomat and the diplomat himself should be treated as if they were on the territory of the sending State. As the diplomat is considered to be living in the sending State, he remains immune from the criminal and civil jurisdiction of the receiving State (J. Wood, J. Serres 1970).

Under the theory of functional necessity, which is regarded as the most dominant and accepted one for the justification of diplomatic immunity, privileges and immunities are essential to allow diplomatic and consular officials to execute their duties successfully (A. Cassese 2005). This justification is cited in the preambles to the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations, according to which, “the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States” (Vienna Convention on Diplomatic Relations, Preamble).

Question No. 1 A foreign ambassador to the Philippines leased a vacation house in Tagaytay for his personal use. For some reason, he failed to pay rentals for more than one year. The lessor filed an action for the recovery of his property in court. a) Can the foreign ambassador invoke his diplomatic immunity to resist the lessor's action? b) The lessor gets hold of evidence that the ambassador is about to return to his home country. Can the lessor ask the court to stop the ambassador's departure from the Philippines?

Answer: a) No, the foreign ambassador cannot invoke his diplomatic immunity to resist the action, since he is not using the house in Tagaytay City for the purposes of his mission but merely for vacation. Under Article 3(l)(a) of the Vienna Convention on Diplomatic Relations, a diplomatic agent has no immunity in case of a real action relating to private immovable property situated in the territory of the receiving State unless he holds it on behalf of the sending State for purposes of the mission.

b) No, the lessor cannot ask the court to stop the departure of the ambassador from the Philippines. Under Article 29 of the Vienna Convention, a diplomatic agent shall not be liable to any form of arrest or detention.

Question No. 2 Dr. Velen, an official of the WHO assigned in the Philippines, arrived at the NAIA with his personal effects contained in crates as unaccompanied baggage. As such, his personal effects were allowed free entry from duties and taxes, and were directly stored at a warehouse pending Dr. Velen's relocation to his permanent quarters. At the instance of police authorities, the RTC issued a warrant for the search and seizure of Dr. Velen's personal effects in view of an alleged violation of the Tariff and Custom's Code.

According to the police, the crates contained contraband items. Upon protest of WHO officials, the Secretary of Foreign Affairs formally advised the RTC as to Dr. Velen's immunity. The Solicitor General likewise joined Dr. Velen's plea of immunity and motion to quash the search warrant. The RTC denied the motion. Is the denial of the motion to quash proper?

Answer: The denial of the motion is improper. As held in World Health Organization vs. Aquino, as an official of the World Health Organization, Dr. Velen enjoyed diplomatic immunity and this included exemption from duties and taxes. Since diplomatic immunity involves a political question, where a plea of diplomatic immunity is recognized and affirmed by the Executive Department, it is the duty of the court to accept the claim of immunity.

Question No. 3 A group of high-ranking officials and rank-and-file employees stationed in a foreign embassy in Manila were arrested outside embassy grounds and detained on suspicion that they were actively collaborating with "terrorists" out to overthrow or destabilize the Philippine Government. The Foreign Ambassador sought their immediate release, claiming that the detained embassy officials and employees enjoyed diplomatic immunity. If invited to express your legal opinion on the matter, what advice would you give?

Answer: I shall advice that the high-ranking officials and rank-and-file employees be released because of their diplomatic immunity. Article 29 of the Vienna Convention on Diplomatic Relations provides: “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention.”

Under Article 37 of the Vienna Convention on Diplomatic Relations, members of the administrative and technical staff of the diplomatic mission, shall, if they are not nationals of or permanent residents in the receiving State, enjoy the privileges and immunities specified in Article 29. Under Article 9 of the Vienna Convention on Diplomatic Relations, the remedy is to declare the high-ranking officials and rank-and-file employees personae non grata and ask them to leave.

Question No. 4 MBC, an alien businessman dealing in carpets and caviar, filed a suit against policemen and YZ, an attaché of XX Embassy, for damages because of malicious prosecution. MBC alleged that YZ concocted false and malicious charges that he was engaged in drug trafficking, whereupon narcotics policemen conducted a "buy-bust" operation and without warrant arrested him, searched his house, and seized his money and jewelry, then detained and tortured him in violation of his civil and human rights as well as causing him, his family and business serious damages.

MBC added that the trial court acquitted him of the drug charges. Assailing the court's jurisdiction: YZ now moves to dismiss the complaint, on the ground that (1) he is an embassy officer entitled to diplomatic immunity; and that (2) the suit is really a suit against his home state without its consent.

He presents diplomatic notes from XX Embassy certifying that he is an accredited embassy officer recognized by the Philippine government. He performs official duties, he says, on a mission to conduct surveillance on drug exporters and then inform local police officers who make the actual arrest of suspects. Are the two grounds cited by YZ to dismiss the suit tenable?

Answer: The claim of diplomatic immunity of YZ is not tenable, because he does not possess an acknowledged diplomatic title and is not performing duties of a diplomatic nature. However, the suit against him is a suit against XX without its consent. YZ was acting as an agent of XX and was performing his official functions when he conducted surveillance on drug exporters and informed the local police officers who arrested MBC.

He was performing such duties with the consent of the Philippine government, therefore, the suit against YZ is a suit against XX without its consent. (Minucher v. Court of Appeals, 397 SCRA 244 [1992]).

Question No. 5 Italy, through its Ambassador, entered into a contract with Abad for the maintenance and repair of specified equipment at its Embassy and Ambassador’s Residence, such as air conditioning units, generator sets, electrical facilities, and water motor pumps. It was stipulated that the agreement shall be effective for a period of four years and automatically renewed unless cancelled. Further, it provided that any suit arising from the contract shall be filed with the proper courts in the City of Manila.

Claiming that the Maintenance Contract was unilaterally, baselessly and arbitrarily terminated, Abad sued the State of Italy and its Ambassador before a court in the City of Manila. Among the defenses, they raised were “sovereign immunity” and “diplomatic immunity.” Rule on the said defenses.

Answer: The court should rule against said defenses. The maintenance contract and repair of the Embassy and Ambassador's Residence is a contract in jus imperii, because such repair of said buildings is indispensable to the performance of the official functions of the Government of Italy. Hence, the contract is in pursuit of a sovereign activity in which case, it cannot be deemed to have waived its immunity from suit.

On the matter of WON the Ambassador may be sued, Article 31 of the Vienna Convention on Diplomatic Relations provides that a diplomatic agent enjoys immunity from the criminal, civil and administrative jurisdiction of the receiving state except if the act performed is outside his official functions, in accordance with the principle of functional necessity. In this case, the act of entering into the contract by the Ambassador was part of his official functions and thus, he is entitled to diplomatic immunity.

Question No. 6: D, the Ambassador of the Kingdom of Nepal to the Philippines, leased a house in Baguio City as his personal vacation home. On account of military disturbance in Nepal, D did not receive his salary and allowances from his government and so he failed to pay his rentals for more than one year. E, the lessor, filed an action for recovery of his property with the Regional Trial Court of Baguio City.

(1) Can the action against D prosper? (2) Can E ask for the attachment of the furniture and other personal properties of D after getting hold of evidence that D is about to leave the country? (3) Can E ask for the court to stop D's departure from the Philippines?

Answer: (1) Yes, the action can prosper. Article 31 of the Vienna Convention on Diplomatic Relations provides: "1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

(a) A real action relating to 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;” The action against the Ambassador is a real action involving private immovable property situated within the territory of the Philippines as the receiving state. The action falls within the exception to the grant of immunity from the civil and administrative jurisdiction of the Philippines.

(2) No, E cannot ask for the attachment of the personal properties of the Ambassador. Arts. 30 and 31 of the Vienna Convention on Diplomatic Relations provides that the papers, correspondence and the property of diplomat agents shall be inviolable. Therefore, a writ of attachment cannot be issued against his furniture and any personal properties.

(3) No, E cannot ask the court to stop the departure of the Ambassador of the Kingdom of Nepal from the Philippines. Article 29 of the Vienna Convention on Diplomatic Relations provides: "The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention."

Question No.7 Adams and Baker are American citizens residing in the Philippines. Adams befriended Baker and became a frequent visitor at his house. One day, Adams arrived with 30 members of the Philippine National Police, armed with a Search Warrant authorizing the search of Baker's house and its premises for dangerous drugs being trafficked to the USA. The search purportedly yielded positive results, and Baker was charged with Violation of the Dangerous Drugs Act.

Adams was the prosecution's principal witness. However, for failure to prove his guilt beyond reasonable doubt, Baker was acquitted. Baker then sued Adams for damages for filing trumped-up charges against him. Among the defenses raised by Adams is that he has diplomatic immunity, conformably with the Vienna Convention on Diplomatic Relations. He presented Diplomatic Notes from the American Embassy stating that he is an agent of the USDEA tasked with "conducting surveillance operations" on suspected drug dealers in the Philippines believed to be the source of prohibited drugs being shipped to the US.

It was also stated that after having ascertained the target, Adams would then inform the Philippine narcotic agents to make the actual arrest. (1) As counsel of plaintiff Baker, argue why his complaint should not be dismissed on the ground of defendant Adams’ diplomatic immunity from suit. (2) As counsel of defendant Adams, argue for the dismissal of the complaint.

Answer: (a) As counsel for Baker, I would argue that Adams is not a diplomatic agent considering that he is not a head of mission nor is he part of the diplomatic staff that is accorded diplomatic rank. Thus, the suit should not be dismissed as Adams has no diplomatic immunity under the 1961 Vienna Convention on Diplomatic Relations.

b) As counsel for Adams, I would argue that he worked for the United States Drug Enforcement Agency and was tasked to conduct surveillance of suspected drug activities within the country with the approval of the Philippine government. Under the doctrine of State Immunity from Suit, if the acts giving rise to a suit are those of a foreign government done by its foreign agent, although not necessarily a diplomatic personage, but acting in his official capacity, the complaint could be barred by the immunity of the foreign sovereign from suit without its consent.

Adams may not be a diplomatic agent but the Philippine government has given its imprimatur, if not consent, to the activities within Philippine territory of Adams and thus he is entitled to the defense of state immunity from suit. (Minucher v. CA, G.R. No. 142396, February 11, 2003)

Question No. 8 1. A consul of a South American country stationed in Manila was charged with serious physical injuries. May he claim Immunity from jurisdiction of the local court? Explain. 2. Suppose after he was charged, he was appointed as his country's ambassador to the Philippines. Can his newly-gained diplomatic status be a ground for dismissal of his criminal case? Explain.

Answer: 1. No, he may not claim immunity from the jurisdiction of the local court. Under Article 41 of the Vienna Convention of Consular Relations, consuls do not enjoy immunity from the criminal jurisdiction of the receiving State. He is not liable to arrest or detention pending trial unless the offense was committed against his father, mother, child, ascendant, descendant or spouse.

Consuls are not liable to arrest and detention pending trial except in the case of a grave crime and pursuant to a decision by the competent judicial authority. The crime of physical injuries is not a grave crime unless it be committed against any of the abovementioned persons. (Schneckenburger v. Moran 63 Phil. 249)

2. Yes, the case should be dismissed. Under Article 40 of the Vienna Convention on Diplomatic Relations, if a diplomatic agent is in the territory of a third State, which has granted him a passport visa if such visa was necessary, while proceeding to take up his post, the third State shall accord him inviolability and such other immunities as may be required to ensure his transit.

Question No. 9 X, a Secretary and Consul in the American Embassy in Manila, bought from B a diamond ring in the amount of P50,000.00 which he later gave as a birthday present to his Filipino girlfriend. The purchase price was paid in check drawn upon the Citibank. Upon presentment for payment, the check was dishonored for insufficiency of funds. Because of X's failure to make good the dishonored check, B filed a complaint against X in the Office of the City Prosecutor of Manila for violation of Batas Pambansa Big. 22.

After preliminary investigation, the information was filed against X in the City Court of Manila. X filed a motion to dismiss the case against him on the ground that he is a Secretary and Consul in the American Embassy enjoying diplomatic immunity from criminal prosecution in the Philippines. If you were the Judge, how would you resolve the motion to dismiss?

Answer: In Schneckenburger vs. Moron, 63 Phil. 249, it was held that a consul is not exempt from criminal prosecution in the country where he is assigned. However, as secretary in the American Embassy, X enjoys diplomatic immunity from criminal prosecution. As secretary, he is a diplomatic agent. Under Paragraph 1 of Article 31 of the Vienna Convention on Diplomatic Relations, a diplomatic agent enjoys immunity from the criminal jurisdiction of the receiving State.