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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”),
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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.
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Article 6, para. 1 of the United Nations Convention on Jurisdictional Immunities of States and Their
Property.