In a general sense, diplomatic immunity is the right not to obey the power decisions of another state, its organs and representatives. In fact, it can be called inappropriateness or a situation when par in parem non habet imperium (lat. "Equal over equal not powerful").
The concept and features of diplomatic immunity
Of all citizens outside the state, diplomats stand apart because of their legal status. The latter, as a rule, is understood as the general set of rights, privileges and obligations in relation to the host country.
In turn, privileges are the advantages that are granted to him by international law for the purpose of unhindered work. Of these, it is worth highlighting various legal immunities, which 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 benefit” - in fact, it is an exemption from any obligation (taxes, process, etc.) or liability.
2. The purpose of the privilege is to ensure the performance of international functions and official duties. That is, immunities are purely functional and are not provided for the personal benefit of a person.
3. The circle of persons with diplomatic immunity is clearly defined in constitutions and laws, as well as international law. In Russia, they are owned by diplomatic and consular corps, the president, members of special missions and representative offices in interstate organizations.
Thus, privileges of diplomatic status are divided into 2 groups: immunities (exemption from something) and legal privileges, the concept of which is associated with certain exemptions, preferential rights, preferences granted to one entity over another, which become useful to the whole society as a whole.
Legislation on the privileges of state representatives
Diplomatic immunity as a legal category has existed 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 position of diplomats was determined only by customs and traditions, since 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 in the field of international relations. Currently, most countries of the world participate in it, including Russia.
In addition to the aforementioned Convention, diplomatic immunity in international law is based on the following treaties and agreements:
- 1963 Vienna Convention on Consular Relations.
- 1946 UN Convention on the Privileges and Immunities of the United Nations.
- 1947 Convention on the Privileges and Immunities of Specialized Agencies.
- 1980 Convention on the Legal Status, Privileges and Immunities of Interstate Economic Organizations.
In addition, states have the right to adopt with regard to diplomatic immunity any other legislative acts that make it possible to specify the situation in accordance with relations between countries. Diplomatic immunity in the criminal law of the Russian Federation, civil and administrative processes is defined directly in the codified acts regulating these areas.
Types of Diplomatic Immunities
Privileges are not granted to diplomats for personal gain or enrichment, but in order to create favorable conditions for work in another state. Embassies and consular posts have the same immunities and personify their state in the host country.
According to the provisions of the Vienna Convention of 1961 and international treaties concluded, all diplomatic immunities can be divided into the following groups:
- Privileges of diplomatic missions - embassies and consulates.
- Personal immunities of diplomats and members of their families.
- Privileges for members of special missions and emergency missions.
- Immunities of members of international (interstate, intergovernmental) organizations.
There is also a classification according to the scope of application 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. The inviolability of the premises.
The host state, in the person of its officials and authorized bodies (police, firefighters, controllers, bailiffs, etc.), is obliged to ensure the effective protection of the diplomatic mission building and the land around it. Similar immunity applies to private residences of diplomats.
2. Immunity of property and vehicles.
In fact, no property may be seized, arrested or searched. However, if the offender is in the vehicle of the mission, it may be detained. The actions of law enforcement agencies should not be directed against transport, but against the person concerned.
3. The inviolability of correspondence and archives.
Diplomatic mail is the most common form of communication between representative offices and their states. It is absolutely inviolable, cannot be limited by weight or the number of seats. The 1961 Vienna Convention mentions the delivery of mail by couriers and non-courier when the message is sent with the help of the captain of an aircraft or ship.
4. Tax (fiscal) immunity.
Financial operations conducted by representative offices for their internal support are not subject to any fees or duties.
5. Customs privileges.
Baggage addressed to the diplomatic mission is not subject to fees and duties (except for storage), but it is inspected on a common basis.
Personal immunities of diplomatic personnel
Representative office staff can be divided into 3 categories: diplomatic, administrative and service. All of them, to one extent or another, use the following privileges:
1. Personal integrity.
Employees of diplomatic institutions and members of their families shall enjoy the protection of the receiving State. Any attack or pursuit 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 assaulting representatives of a foreign state enjoying diplomatic protection.
2. The inviolability of the home (personal residence).
The places of permanent residence of diplomats and members of their families (apartment, house) are provided with security and protection from searches, confiscations and intrusions.
3. Immunity from criminal, civil and administrative jurisdiction, protection against enforcement actions.
With respect to civil and administrative jurisdiction, 3 exemptions are possible:
- Claims for personal property of a diplomat and members of his family.
- Claims for inheritance cases (contestation of wills, inclusion in the composition of heirs, etc.).
- Claims for various business matters that diplomats or their family members have pursued for personal gain.
4. Customs immunity and inviolability of baggage.
Personal items of diplomats can be inspected only in their presence and subject to serious suspicions of the presence of items prohibited for export. If after inspection no violations are found, 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, as countries, relying on measures to ensure aviation safety and the fight against terrorism, have equated diplomats with other passengers of civilian flights.
5. Exemption from personal duties.
The host state may not impose personal duties on representatives and members of their families (military service, indemnities, military stand, requisition, etc.).
6. Freedom of movement within the territory of the receiving state.
Persons who are in any way related to the diplomatic corps are entitled to move freely around the host country, with the exception of territories that are prohibited from visiting foreigners by virtue of law or religious status.
Diplomats and representatives of administrative and technical personnel, as well as family members staying with them, enjoy full personal immunity. However, they can take advantage of their privilege only if they do not have the citizenship of the host state or do not reside in it permanently.
Under the same conditions, service personnel can only rely on exemption from tax fees and duties in relation to earnings received in the service.
Special Mission Immunities
In addition to the “permanent” diplomatic institutions in other states, there are temporary entities - missions (groups, commissions) sent by one country to another to consider any issues or perform certain tasks.
In the Convention on Special Missions, adopted in 1969, the main international act on this issue extends the concept 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 . The specified persons during trips 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 agreed between the countries interested in the meetings.
The diplomatic immunity of participants in special missions is temporary and ends after returning to the country of accreditation. During their stay in another power, members of temporary groups enjoy almost the same immunities and benefits as the employees of "permanent" institutions.
But at the same time, the 1969 Convention enshrined certain 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. Permission from the head of the group or the relevant diplomatic institution is not required. It was this limitation that caused the refusal of the USSR, and subsequently Russia, 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 enjoyed by an international / intergovernmental association and its staff (as well as representatives of member states with it) provided for the purpose of effective and independent implementation of the statutory functions.
The need for diplomatic immunity to exercise functions is described in Articles 104 and 105 of the UN Charter, as well as in the constituent documents of other generally recognized organizations, including UNESCO, WHO, IMF, Council of Europe, PACE and others.
The scope and content of immunity are detailed in special conventions, treaties and agreements that are concluded between an international formation and the state. In addition to the general privileges of the association itself, such documents describe privileges and immunities of personnel: immunity, exemption from jurisdictions, customs privileges, privileges upon entry, residence, currency exchange, repatriation, the right to special signs, passports, etc.
Immunity of representatives of Member States in international organizations
The immunity of country representatives in interstate associations is much more complete than the immunity of personnel. In fact, it is similar to the diplomatic one, since it is based on the right of states to represent their interests in the international arena.
The main normative act of Russia, regulating the features of the permanent mission in an international association, is the Regulation "On the Permanent Mission of the Russian Federation to an International Organization", approved by Decree of the President of the Russian Federation of September 29, 1999 No. 1316.
However, it is worth noting that representatives of states in organizations exercise their rights exclusively at the level of an international organization. It is impossible to designate a country as the permanent residence of a particular interstate association. But if this happened, his power structures have a duty to provide representatives of states and delegations at conferences with the corresponding privileges and immunities, which they should use in good faith.
United Nations Immunity
The legal status of the United Nations 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, subject to only a few 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 at various levels (delegates, advisers, experts, secretaries of delegations) have the same privileges, immunities and privileges as diplomats enjoy.
Agreements on the location of the headquarters of the United Nations 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 institute proceedings against employees of UN agencies in order to present them with a request to leave the United States due to abuse of privileges.
A rather specific kind of immunity is the provision of Section 18 of Article V of the 1947 Convention, which establishes that employees of the United Nations and its specialized agencies cannot be involved for what they said or wrote during their stay as an official.
Civil procedural immunity
Any judicial immunity involves the seizure of cases where the state acts as a direct participant in the disputed legal relationship, from the jurisdiction of the court of any other state.
Diplomatic immunity in a civil proceeding is determined by Part 3 of Article 401 of the Code of Civil Procedure of the Russian Federation, which indicates that accredited representatives of another state fall under the civil jurisdiction of the courts of the Russian Federation only to the extent provided for by international treaties and agreements between Russia and other countries.
That is, diplomatic immunity protects diplomats (as well as members of their families) of one state from mandatory participation in court proceedings in the territory of the host country. In relation to the civil process, it is assumed that a diplomatic agent cannot be forced to become a participant - a defendant in claims, a witness, an expert, etc. Moreover, a diplomat can waive his immunity at any stage of the process.
Immunity in a civil process does not apply to situations where diplomats and members of their families enter the process as private individuals in lawsuits against their own real estate, inheritance issues or activities that bring them personal benefit.
If a diplomatic representative or another person enjoying immunity applies to the court with a lawsuit, he can no longer refer to his privileges in the framework of this case.
Criminal procedure immunity
As a rule, international documents contain a provision that diplomatic entities enjoy immunity from criminal liability, which does not imply “exemption from liability”, but “exclusion” from the scope of legal punishment. For example, article 11 of the Convention on the Privileges and Immunities of the Shanghai Cooperation Organization dated June 17, 2004 stipulates that in the territory of the member countries of the association its officials cannot be held accountable for their statements, publications and other acts committed during the performance of duties .
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