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.