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Diplomatic Immunity, Consular Immunity and Traffic Tickets |
Posted by: Admin on Friday, October 22, 2004 - 08:27 AM
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?Consular immunity? must be distinguished from ?diplomatic immunity.? The two terms are often used interchangeably. However, there are significant differences between the two types of immunity.
Diplomatic immunity generally arises under the Vienna Convention on Diplomatic Relations, 23 U.S.T. 3227. ?Diplomatic agents,? within the meaning of the Convention are entitled to full immunity which shields them from the jurisdiction of state courts for matters such as traffic infractions. Normally, when a diplomatic agent receives a traffic citation the citation is forwarded to the U.S. State Department, which handles the infraction independently of the local authorities. The State Department takes the position that notwithstanding their immunity, foreign diplomatic agents are obligated to operate motor vehicles in compliance with local laws and regulations. If the diplomatic agent abuses the driving privilege granted to him by the State Department, the privilege may be revoked. See ?What Is Diplomatic Immunity?? Presented by Mr. Clay Hays, Chief of Community Relations, Diplomatic Motor Vehicle Office, of the U.S. State Department, at a Las Vegas Conference in March 2000, which can be found by clicking here.
"The U.S. Department of State?s Diplomatic Motor Vehicle Office maintains driver histories on all its licensees and assesses points for moving violations. Drivers who demonstrate a pattern of bad driving habits or who commit an egregious offense such as DWI, are subject to having their licenses suspended or revoked as appropriate?. It is U.S. Department of State policy to assign ?points? for driving infractions and to suspend the operators license of foreign mission personnel who abuse the privilege of driving in the United States by repeatedly committing traffic violations and demonstrating unsafe driving practices.? Id. For additional statements of State Department policy on the issue of diplomatic immunity as applied to traffic and parking infractions, see State v. Killeen, 39 Ore. App. 369, 374, 592 P. 2d 268, 270 (1979); 88 American Journal International Law 312 (April 1994); 79 American Journal International Law 1044 (October 1985).
Consular immunity is generally derived from the Vienna Convention on Consular Relations, 21 U.S.T. 77. Consular immunity is a more limited type of immunity than diplomatic immunity, and it is often referred to as ?official acts? immunity. Article 43 of the Convention states: ?Consular officers? shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.? Thus, unlike diplomatic agents, consular officials can be prosecuted for traffic offenses that do not constitute an ?act[] performed in the exercise of consular functions.? ?[A] consular officer?s immunity from arrest, detention, and criminal or civil process is not general, but applies only to acts or omissions in the performance of his official functions.? Restatement of the Law, Third, Foreign Relations Law of the United States, ? 465, comment a
Some consular officers, by virtue of a special treaty arrangement, are entitled to full immunity of the type that applies to diplomatic agents. See Restatement of the Law, Third, Foreign Relations Law of the United States, ? 465, comment c.
Nonetheless, the State Department gets involved even in cases involving the more limited immunity to which most consular officers are entitled, known as "official acts" immunity. A consular officer may appear in court to raise official acts immunity as an affirmative defense. If the court finds that the official acts immunity defense has been proven, the Defendant is no longer subject to the court?s jurisdiction and the case is dismissed pursuant to article 43 of the Vienna Convention. See Restatement of the Law, Third, Foreign Relations Law of the United States, ? 465, comment a. However, even though the case has been dismissed from the local court system, the defendant does not escape responsibility for the traffic ticket. In the same manner as a case involving diplomatic immunity, the State Department retains its own ?jurisdiction? to handle the matter is it deems fit, including the possible imposition of points or revocation of driving privileges in cases of abuse. See Hays, ?What Is Diplomatic Immunity?? supra. On the other hand, if the court finds the Defendant is not entitled to immunity, the Defendant is subject to the court?s jurisdiction and may be tried in the same manner as any other defendant.
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