Although the US State Department is assiduously propagating the view that Devyani Khobragade’s transfer to India’s Permanent Mission at the United Nations would entitle her to full diplomatic immunity only prospectively and will not protect her from prosecution in the visa fraud and minimum wage dispute, this does not seem to be the legal position in the United States. In fact, Khobragade’s lawyer, Daniel Arshack, may be on firmer footing in his assessment that this will not only prevent her prosecution in the case, but could make the judge drop it altogether.
In the case of Prince Turki bin Abdulaziz and others v Metropolitan Dade County No. 83-5015 in the United States Court of Appeals, Eleventh Circuit (741 F.2d 1328, 1984), the judges observed that the case “raises issues as to whether a certificate of diplomatic status granted after the commencement of a suit supports dismissal of the suit based on diplomatic immunity, and whether a grant of diplomatic status is reviewable by this Court”.
It may be recalled that in January 2011, CIA contractor Raymond Davis was granted diplomatic immunity by the US administration after he murdered two Pakistani civilians out of panic at a traffic junction in Lahore. The Pakistani authorities kept him in jail for ten weeks before a deal was negotiated under which the families of the victims accepted compensation and pardoned him under a provision in the Sharia. India similarly upgraded Devyani Khobragade’s appointment from consular to full diplomatic status after she was arrested in a dispute with her runaway household help and subjected to grave indignity before being released on bail.
Various US authorities are trying to suggest that this will not help get the diplomat off the hook. But in the case involving the Saudi Prince and his family, Circuit Judges Roney and Henderson ruled, “We hold that once the United States Department of State has regularly certified a visitor to this country as having diplomatic status, the courts are bound to accept that determination, and that the diplomatic immunity flowing from that status serves as a defense to suits already commenced. We therefore affirm the dismissal of the claims made against the Saudi Arabian diplomats in this case”.
The case arose out of a 42 USCA § 1983 suit alleging Fourth and Fourteenth Amendment violations, brought by the Saudi Arabians, before the State Department certified them to have diplomatic status. Prince Turki bin Abdulaziz, a member of the ruling family of the Kingdom of Saudi Arabia, his wife Princess Hend AlFassi, and his mother-in-law Sheikha Faiza Ali Helmi, were residents of the Cricket Club condominium in Dade County, Florida.
On February 26, 1982, representatives from a Florida State Attorney’s office obtained a search warrant after inquiry with the US State Department showed that Prince Turki and his family did not have diplomatic status. The warrant was based on the affidavit of a former employee, Abdelmejid Daifi, who alleged that Prince Turki was holding an Egyptian named Nadia Lutefi against her will.
When Miami Dade Police officers attempted to execute the warrant, there was a “scuffle” between Prince Turki, his family and bodyguards, and the officers. On March 2, 1982, Prince Turki and his family brought the § 1983 action for violation of their civil rights against Metropolitan Dade County and the officers and agents involved. On March 11, 1982, the defendants in turn alleged injuries from the encounter. However, the State Department subsequently certified that on April 1, 1982, papers were filed which qualified Prince Turki and his family for diplomatic status. The Prince moved to dismiss his complaint as well as the counterclaims on the ground that he and his family had diplomatic immunity from the suit. The district court dismissed the action November 30, 1982.
At this, the defendants, in an attempt to maintain their counterclaims against Prince Turki and his family, challenged his diplomatic status and said the immunity was unsubstantiated, that immunity was waived, and that discovery was improperly curtailed. But the judges ruled that the controlling statute on diplomatic immunity is the Diplomatic Relations Act of 1978 which incorporated the 1961 Vienna Convention on Diplomatic Relations. They said that courts have recognized that diplomatic immunity serves the needs of the foreign sovereign and that the diplomat’s privilege is “merely incidental to the benefit conferred on the government he represents”.
The purposes of such immunity “are to ‘contribute to the development of friendly relations among nations’ and ‘to ensure the efficient performance of the functions of the diplomatic missions.’” They said that pursuant to the Diplomatic Relations Act and the Vienna Convention, diplomatic personnel are classified into categories that are granted specific immunities from legal action while residing in the United States.
The Diplomatic Relations Act, 22 USCA § 254a-e, clearly establishes diplomatic immunity as a defense. Section 254d states [a]ny action or proceeding brought against an individual who is entitled to immunity with respect to such action or proceeding under the Vienna Convention on Diplomatic Relations, under sections 254b or 254c of this title, or under any other laws extending diplomatic privileges and immunities, shall be dismissed. Such immunity may be established upon motion or suggestion by or on behalf of the individual, or as otherwise permitted by law or applicable rules of procedure.
The judges concluded that the language of the statute addresses suits against diplomats. The Senate Report on the Act indicates that § 254d intends “dismissal by a court … of any action or proceeding where immunity is found to exist” (Pub.L. No. 95-393, 1978 U.S.Code Cong. and Ad.News (92 Stat.) 1935, 1939).
In the extant case, Prince Turki was apparently eligible for but had not been granted diplomatic status at the time he initiated his § 1983 suit. After the action was commenced and the counterclaims were filed, he sought and was granted diplomatic status by the State Department. Although defendants claimed that the State Department certificate is reviewable in court, the courts have generally accepted as conclusive the views of the State Department regarding diplomatic status. In Carrera vs Carrera, it was enough that an ambassador had requested immunity and the State Department had recognized that the person for whom it was requested was entitled to it (Carrera v. Carrera, 174 F.2d 496, 497, D.C.Cir.1949).
The defendants argued that the Prince’s classification as “special envoy” is not protected by the Diplomatic Relations Act. But the judges contended that under the Vienna Convention, the State Department has the broad discretion to classify diplomats. This broadness in the language of the Vienna Convention is necessary since it is the foreign country that actually ranks its envoys, not the State Department. The State Department was notified by the Embassy of Saudi Arabia on April 1, 1982 of Turki’s status as “special envoy” for matters concerning the Government of Saudi Arabia. This entitled him to full protection pursuant to the Diplomatic Relations Act, which protection extended to his family, members of his service staff, and servants. The case against the Prince was dismissed on grounds of diplomatic immunity.
In Khobragade’s case, the United Nations has to accept her credentials and the US State Department has to endorse it, and thus open the way for resolution of the dispute.
Source: http://www.leagle.com/decision/19842069741F2d1328_11840
http://www.niticentral.com/2013/12/22/us-law-gives-devyani-full-legal-immunity-171428.html