CYIL Vol. 7, 2016

321 CYIL 7 ȍ2016Ȏ IMMUNITY OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION immunity is based. However, international law contains provisions which presuppose and require preliminary legal characterization of the alleged conduct as unlawful in order to withold immunity from jurisdiction of another state, and the application of these provisions, as it seems, poses no logical or practical problem. For example, according to article 41, paragraph 1, of the Vienna Convention on Consular Relations, “consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority”; in addition, consular officers shall not be committed to prison or be liable to any other form of restriction on their personal freedom “except in the case specified in paragraph 1” and the proceedings shall be conducted in a manner which will hamper the exercise of consular functions as little as possible, “except in the case specified in paragraph 1”. Thus, the above measures taken against a consular officer during the criminal proceedings before a foreign court presupose that – before the court can hear the merits of the case – the illegal conduct is (preliminary) legally characterized as a “grave crime”. Also the whole range of other exceptions to immunity (of states, diplomats and other foreign officials from civil, administrative or criminal jurisdiction) require that the relevant conduct and other facts of the case are preliminarily assessed and legally characterized before the determination of the merits of the case. In the area of state immunity, the courts have to preliminarily decide (“in order to determine on their own initiative that the immunity of that other State … is respected”), 42 before they can hear the merits of the case, the whole range of legal issues and facts on which the entitlement of a foreign state to immunity from civil jurisdiction or exception to such an immunity can be based, including, e.g., the issues and facts concerning compensation for death or personal injury or for damage to or loss of tangible property caused by the defendant state‘s alleged act or ommission in the forum state (article 12 of the UN Convention on Jurisdictional Immunities of States), or the issues concerning an alleged infringement by the State , in the territory of the State of the forum, of a right (of a foreign State in a patent, industrial design, trade name or business name, trademark, copyright or any other form of intellectual or industrial property) which belongs to a third person and is protected in the State of the forum (article 14 of the UN Convention). It is not clear why it should be problematic and illogical to presuppose – preliminarily, before the court can hear the merits of the case – the legal characterization of the alleged conduct as criminal for the purpose of the exception to immunity ratione materiae on the one hand, and, on the other hand, why it should be logical and appropriate to presuppose, preliminarily, the legal characterization of the whole range of other facts and aspects of the case and relevant conduct (including the tortious or criminal character of the conduct in question) on which the granting or denial of immunity in other instances can be based. 42 Article 6, para. 1 of the United Nations Convention on Jurisdictional Immunities of States and Their Property.