LawState and Law

What is diplomatic immunity?

In general, diplomatic immunity is the right not to obey the power decisions of another state, its bodies and representatives. In fact, it can be called immobility or a situation where par in parem non habet imperium (Latin "equal over equal").

The concept and features of diplomatic immunity

Out of all citizens who are outside the state, diplomats stand apart because of their legal status. The latter, as a rule, is understood as a common set of rights, privileges and obligations with respect to the host country.

In turn, privileges are the advantages that are granted to it by international law for the purposes of unimpeded implementation of work. Of these, it is particularly worth highlighting the various legal immunities that are defined as the exclusive right of diplomatic representatives not to obey certain general laws.

Diplomatic immunity has a number of features that distinguish it from other privileges:

1. It has the form of a "negative privilege" - in fact, it is an exemption from any duty (taxes, process, etc.) or responsibility.

2. The purpose of the privilege is to ensure the performance of international functions and duties. That is, immunities are purely functional and are not provided for the personal benefit of a person.

3. The circle of persons having diplomatic immunity is clearly defined in constitutions and laws, as well as norms of international law. In Russia, they have diplomatic and consular corps, the president, members of special missions and missions in interstate organizations.

Thus, the privileges of diplomatic status are divided into 2 groups: immunities (exemption from something) and legal benefits, the concept of which is associated with certain indulgences, preferential rights, preferences given to one entity over others, which become useful to the whole society as a whole.

Legislation on the privileges of representatives of the state

Diplomatic immunity as a legal category exists for a long time. Even in ancient Rome, the ambassadors of enemy states were inviolable, since they were considered to be under the protection of the gods.

For a long time, the status of diplomats was determined only by customs and traditions, as there were no international acts on these issues. The first attempt at formal codification was made only in 1928, when the Convention on Diplomatic Officials was adopted in Havana (Latin America).

Later, in 1961, the Vienna Convention on Diplomatic Relations was adopted, which to this day remains the main treaty treaty in the field of international relations. Currently, most of the world's states, including Russia, participate in it.

In addition to the said Convention, diplomatic immunity in international law is based on the following treaties and agreements:

  • The Vienna Convention on Consular Relations of 1963.
  • Convention on Privileges and Immunities of the United Nations of 1946.
  • Convention on the Privileges and Immunities of the Specialized Agencies of 1947.
  • Convention on the Legal Status, Privileges and Immunities of the Intergovernmental Economic Organizations of 1980.

In addition, states have the right to take any other legislative acts with respect to diplomatic immunity, which allow to specify the situation in accordance with the relations between countries. Diplomatic immunity in the criminal law of the Russian Federation, civil and administrative processes is defined directly in the codified acts governing these areas.

Types of diplomatic immunities

Privileges are granted to diplomats not for personal gain or enrichment, but in order to create favorable conditions for working in another state. Embassies and consular institutions have the same immunities and embody their state in the host country.

According to the norms of the Vienna Convention of 1961 and concluded international treaties, all diplomatic immunities can be divided into the following groups:

  • Privileges of diplomatic representations - embassies and consulates.
  • Personal immunities of diplomats and their families.
  • Privileges of members of special missions and emergency missions.
  • Immunities of members of international (interstate, intergovernmental) organizations.

There is also a classification on the scope of diplomatic immunity: civil procedural, criminal (immunity in criminal proceedings), customs, tax (fiscal) and administrative.

Immunities of diplomatic institutions

According to the Vienna Convention of 1961, diplomatic immunity includes the following:

1. Inviolability of premises.

The host State in the person of its officials and authorized bodies (police, firefighters, inspectors, police officers, etc.) is obliged to ensure effective protection of the building of the diplomatic mission and the land area around it. Similar immunity extends to private residences of diplomats.

2. Immunity of property and vehicles.

In fact, no property can be seized, arrested or searched. However, if there is a criminal in the vehicle of the mission, it may be delayed. The actions of law enforcement bodies should be directed not against transport, but against the person concerned.

3. Inviolability of correspondence and archives.

Diplomatic mail is the most common type of communication agencies with their states. It is absolutely inviolable, can not be limited by the weight or the number of seats. The Vienna Convention of 1961 mentions the delivery of mail by couriers and non-courier when the message is sent by the captain of an air or sea vessel.

4. Tax (fiscal) immunity.

Financial transactions conducted by missions for their internal security are not subject to any fees and duties.

5. Customs privileges.

The luggage addressed to the diplomatic mission is not subject to fees and duties (except for warehouse ones), but the inspection is conducted on general grounds.

Personal immunities of diplomatic staff

The staff of the representative office can be divided into 3 categories: diplomatic, administrative and service. All of them in one or another extent use the following privileges:

1. Personal inviolability.

Employees of diplomatic institutions and members of their families enjoy the protection of the host State. Any attack or persecution of them is unacceptable. For example, the Criminal Code of the Russian Federation in article 360 provides for punishment from 5 to 7 years for an attack on representatives of a foreign state enjoying diplomatic protection.

2. Inviolability of the home (personal residence).

Places of permanent residence of diplomats and members of their families (apartment, house) are provided with protection and protection from searches, seizures and penetrations.

3. Immunity from criminal, civil and administrative jurisdiction, protection from enforcement actions.

Regarding civil and administrative jurisdiction, there are 3 exceptions:

  • Claims against the personal property of the diplomat and his family.
  • Claims on hereditary cases (contesting wills, inclusion in the composition of heirs, etc.).
  • Claims on various matters of commercial activity, to which diplomats or members of their families were engaged for personal gain.

4. Customs immunity and inviolability of luggage.

The personal belongings of diplomats can be examined only in their presence and subject to serious suspicions of the presence of objects prohibited for export. If no violations are found after the inspection, the luggage owner has the right to file an official protest.

In the modern world, this type of immunity has fallen out of the sphere of regulation, since countries, based on measures to ensure aviation security and fight against terrorism, have equated diplomats with other passengers of civil flights.

5. Exemption from personal obligations.

The host State can not impose personal obligations on representatives and members of their families (military service, indemnities, military post, requisition, etc.).

6. Freedom of movement within the territory of the host State.

Persons who in some way relate to the diplomatic corps are free to move around the host country, except for territories that are prohibited from visiting foreigners by law or religious status.

Full personal immunity is enjoyed by diplomats and representatives of administrative and technical personnel, as well as family members who are with them. However, they can exercise their privilege only if they do not have the citizenship of the host State or do not reside there permanently.

Service personnel under the same conditions can only rely on exemption from tax collections and duties with respect to the earnings earned in the service.

Immunities of special missions

In addition to "permanent" diplomatic institutions in other states, there are temporary formations - missions (groups, commissions) sent by one country to another to consider any issues or fulfill certain tasks.

In the Convention on Special Missions, adopted in 1969, the main international instrument on this issue extends the notion of temporary diplomatic entities to all groups, including heads of state, government, foreign ministers and other high-ranking officials who are sent abroad for their state's affairs . These persons during travel have full immunity from all types of jurisdiction.

The powers of the special mission, its duration and composition are determined by the tasks assigned to it and, as a rule, are coordinated between the countries concerned in the meetings.

The diplomatic immunity of participants in special missions is of a temporary nature and ceases after the return to the country of accreditation. During their stay in another power, members of temporary groups enjoy almost the same immunities and facilities as employees of "permanent" institutions.

But at the same time, the 1969 Convention establishes separate restrictions on their privileges. In particular, representatives of the host country have the right to freely visit the premises of a special mission in the event of a fire or other natural disaster. The permission of the head of the group or the relevant diplomatic establishment is not required. It was this restriction that caused the USSR, and subsequently Russia, to refuse to ratify this Convention.

Immunity of international organizations

In general, this type of immunity can be defined as a set of special rights and advantages that the international / intergovernmental association and its personnel (as well as representatives of the member states with it), provided for the purpose of effective and independent performance of statutory functions.

The need for diplomatic immunity for the exercise of functions is stated in Articles 104 and 105 of the UN Charter, as well as in the founding documents of other universally recognized organizations, including UNESCO, WHO, IMF, the Council of Europe, PACE and others.

The scope and content of immunity are detailed in special conventions, treaties and agreements that are concluded between international formation and the state. In addition to the general privileges of the association itself, such documents describe the benefits and immunities of personnel: immunity, exclusion from jurisdictions, customs privileges, benefits for entry, accommodation, currency exchange, repatriation, the right to special signs, passports and so on.

Immunity of representatives of member states in organizations of international level

Immunity of representatives of countries in interstate associations is much more complete than the immunity of personnel. In fact, it is similar to the diplomatic one, because it is based on the right of states to represent their interests in the international arena.

The main normative act of Russia regulating the peculiarities of the work of a permanent mission in an international association is the Provision on the Permanent Mission of the Russian Federation to an International Organization, approved by Presidential Decree No. 1316 of September 29, 1999.

However, it is worth noting that representatives of states in organizations realize their rights exclusively at the level of an international organization. It is impossible to designate a country as a place of permanent residence of an intergovernmental association. But if this happens, its power structures have a duty to provide representatives of states and delegations at conferences with the appropriate privileges and immunities that they should use in good faith.

United Nations Immunity

The legal status of the UN is defined in its Charter, as well as in the Convention on the Privileges and Immunities of the United Nations, approved by the General Assembly in 1947.

The 1947 Convention applies to all organizations within the UN system, taking into account only some changes that are designed and adopted to reflect the specifics of their work.

According to Article IV of the Convention, representatives of states in UN bodies of different levels (delegates, advisers, experts, secretaries of delegations) enjoy the same privileges, immunities and privileges as diplomats use.

Agreements on the location of UN headquarters and other international universal organizations provide for permanent representatives of Member States immunities similar to diplomatic ones. But in agreements with some countries they are limited. In particular, the agreement between the United Nations and the United States, in addition to recognizing privileges and immunities, contains permission for US authorities to initiate cases against UN agencies in order to demand that they leave the US because of abuse of privileges.

A rather specific type of immunity is the provision of section 18 of Article V of the 1947 Convention, which establishes that members of the UN and its specialized agencies can not be brought in for what they have said or written while in office.

Civil Procedure immunity

Any judicial immunity presupposes the seizure of cases where the state acts as the direct participant of the disputable legal relationship, from the jurisdiction of the court of any other state.

Diplomatic immunity in the civil process is determined by part 3 of Article 401 of the CCP RF, which indicates that accredited representatives of another state fall under the civil jurisdiction of the courts of the Russian Federation only to the extent stipulated in the provisions of international treaties and agreements between Russia and other countries.

That is, diplomatic immunity protects diplomats (as well as their family members) of one state from compulsory participation in judicial proceedings in the territory of the host country. With regard to the civil process, it is assumed that the diplomatic agent can not be forced to become his party, the defendant in lawsuits, a witness, an expert, etc. Moreover, the diplomat can waive his immunity at any stage of the process.

Immunity in the civil process does not apply to situations where diplomats and members of their families enter the process as private individuals on claims for their own real estate, inheritance or personal gain.

If a diplomatic representative or another person enjoying immunity goes to court with a suit, he can not, in the context of this case, refer to his privileges.

Criminal-procedural immunity

As a rule, international documents contain a provision stating that diplomatic entities enjoy immunity from criminal liability, which implies not "exemption from liability" but "exclusion" from the sphere of legal punishment. For example, Article 11 of the Convention on the Privileges and Immunities of the Shanghai Cooperation Organization of June 17, 2004 stipulates that in the territory of the member countries of the association its officials can not be held liable for their actions, publications and other acts committed during the period of fulfilling duties .

Diplomatic immunity in the criminal law does not presuppose the release of foreign diplomats and other persons with similar privileges from criminal liability, but the actual impossibility of applying any of the criminal law norms of Russian legislation to the crimes committed by them. That is, diplomatic immunity in the criminal process means that law enforcement agencies can not initiate criminal cases against such subjects, involve them as suspects or accused. Any criminal case initiated should be terminated in accordance with clause 2 of part 1 of Article 24 of the CCP RF in connection with the absence of corpus delicti.

Diplomatic immunity and its legal significance are extremely important, since in many respects the relations between different states determine. Representatives of other countries that perform the functions of "votes" of other governments are inviolable, and violation of this rule is always punishable by blocking relations at the international level and imposing various sanctions.

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