U.S. v. Devyani Khobragade or Notes on What Has Never Happened
After being indicted the accused acquires diplomatic immunity. What does it entail for the proceedings that have already been commenced? A U.S. court had an opportunity to speak on the subject in the highly sensitive Khobragade case.
On December 12, 2013 an Indian national Devyani Khobragade was arrested on charges of visa fraud and making false statements to the government and was subsequently released on bail. At the time of her arrest she was serving as a consular agent and was thus not liable to the law-enforcement measures, except for the case of a grave crime and pursuant to a decision by the competent judicial authority (art. 41(1) VCCR).
On January 9, 2014 Khobragade was indicted by the grand jury. However, the day before the indictment at 5.47 pm she had acquired diplomatic immunity following her appointment to the Permanent Mission of India to the UN. After the Indian government refused to waive Khobragade’s immunity, her bail conditions were reviewed in order to allow her to leave the country as requested by the US.
On March 13 Judge Scheindlin dismissed the indictment against Khobragade on the grounds that it was returned after she had acquired diplomatic immunity on the strength of the Headquarters Agreement between the US and the UN.
Although it was the right decision to take, it does provoke a feeling of frustration. The unfortunate timing deprived us of a peculiar legal discussion; luckily, our imagination allows us to alter the course of reality and here is what should have happened if the indictment had been returned before the transfer of the defendant to the UN was sealed.
The issue of acquisition of immunity during the pendency of proceedings is not something that has never arisen before. In 1956 a civil court faced a similar challenge in a libel action against the Venezuelan Consul-General in New York, who, after being served, was transferred to the Permanent Mission of his country to the UN with a rank of Envoy Extraordinary and Minister Plenipotentiary (Arcaya v. Paez). Not only did the court rule that the subsequent acquisition of immunity did not mandate dismissal, but rather a mere stay of action (1), but it also found that the service of process neutralized the rule extension of immunity for the time reasonably necessary to permit the diplomat to depart after termination of his office (2).
(1) I cannot think of any reason that would have justified a departure from the Arcaya jurisprudence in our imaginary criminal case. The change of the procedural setting from civil to criminal, instead of impeding application of this rule, only reinforces its desirability. The purpose of criminal proceedings is to protect essential public interests as opposed to private interests in civil matters. The judge in Arcaya was affirmative that the plaintiff could not become a victim of the defendant's promotion by losing the rights attached to the commencement of a civil action. One may only wonder why society as a whole should be victimised by the dismissal of a valid criminal case.
The purpose of diplomatic immunity is not to hinder the administration of criminal justice in the receiving state more than is necessary in order to let the diplomat do his job. I contend with this respect that the discharge of diplomatic duties is not jeopardised by a pending trial as long as the defendant is not personally involved in the proceedings.
The criminal proceedings do not even have to be completely ‘frozen’ during the immunity-covered timeout. Diplomatic immunity precludes only actions susceptible to interfering with the effective discharge of functions by the official. It means that, for instance, evidence gathering, including the questioning of witnesses, can be proceeded with.
It is important to know when to stop
(2) The denial of extension of immunity is, however, questionable. Immunity, enjoyed by diplomatic agents and representatives to international organisations during the office and immunity extended for a reasonable period after its termination are equally attached to the status of their beneficiary as per relevant treaties. In terms of immunity one may think of a fiction of a continuation of an office within this reasonable period of time. This reservation is valid for criminal as well as for civil proceedings.
The acquisition by a person of diplomatic immunity is likely to render impossible the effective continuation of judicial proceedings against him, even provided that he would not enjoy the aforementioned extension. He would most certainly leave the country before being excused from his duties, which lends to this post a more theoretical than practical import. The message I purported to transmit is that even if in practice immunity very often equals impunity, it does not mean that in theory this is also the case.