Published: 22 February 2023 Author: Stefan Talmon
On 10 August 2021, German Federal Police arrested David Smith, a British national who worked as a security guard at the British embassy in Berlin, on suspicion of spying for Russia. Under German criminal law, intelligence activities against a fellow NATO member State in Germany is to be treated as intelligence activities against Germany. German police searched the suspect’s home in Potsdam outside Berlin and his workplace at the embassy. The arrest was the result of a joint investigation by the German Federal Police and the Counter Terrorism Commando of London’s Metropolitan Police. The next day, Smith was brought before an investigating judge of the Federal Court of Justice who ordered his pre-trial detention. Asked about the case, Federal Foreign Minister Heiko Maas stated: ‘Spying on a close ally on German soil is absolutely unacceptable and we are in full solidarity with our British friends.’
The arrest raised questions of diplomatic immunity. Although being a member of the staff of the mission, Smith did not enjoy any privileges and immunities in Germany. In particular, he was not inviolable, and neither was his residence. According to Article 37(2) of the Vienna Convention on Diplomatic Relations (VCDR), members of the administrative and technical staff of the mission generally enjoy most of the privileges and immunities of diplomatic agents. However, this does not apply to staff members who are permanently resident in the receiving State. Smith had not been sent to Berlin from the United Kingdom but, as a long-time resident of Potsdam, had been recruited locally. Diplomatic missions may employ nationals of the receiving State or persons who are already legal residents in the receiving States with the right to work, including nationals of the sending States. Such locally recruited staff usually work as administrative or technical staff of the mission. Article 38(2) VCDR expressly provides that members of the staff of the mission other than diplomatic agents (i.e. members of the administrative and technical staff and of the service staff of the mission) who are permanently resident in the receiving State shall enjoy privileges and immunities ‘only to the extent admitted by the receiving State.’ Germany does not grant any privileges and immunities to locally recruited staff. The relevant circular note of the Federal Foreign Office provides:
Local staff are the employees of a foreign mission who are recruited on the local labour market and who are not subject to job rotation in a foreign diplomatic service. They either have German nationality, enjoy freedom of movement as an EU/EEA citizen or a Swiss citizen, or have a German residence permit that allows them to work.
As a matter of principle, local staff are not granted any privileges and immunities in the Federal Republic of Germany. To the extent that they are involved in the official acts of the mission (e.g. when issuing visas) Article 38(1) VCDR and immunity in respect of acts are to be applied by way of analogy. In any case, the receiving State must not exercise its jurisdiction over local staff in such a manner as to interfere unduly with the performance of the functions of the mission (see the second sentence of Article 38(2) VCDR, which is to be applied here, by way of analogy, at least in this respect).
In order for Germany to fulfil its obligations under Article 38(2) VCDR not to unduly interfere with the performance of the functions of foreign missions when exercising its jurisdiction over locally recruited staff, the Federal Foreign Office is to be notified of the starting and leaving date of these persons. In the past, special ‘Yellow ID cards’ were issued to staff working at a diplomatic mission who had their permanent residence in Germany.
As Smith did not enjoy any privileges and immunities, there was no need for any waiver of immunity for his arrest and the search of his flat. His pre-trial detention was also not precluded by Article 38(2) VCDR. Although any prolonged deprivation of liberty of a member of the staff of the mission may have an impact on the operations of the mission, the detention of a member of the administrative or technical staff, as a rule, cannot be considered an undue interference with the performance of the functions of the mission as defined in Article 3 VCDR; otherwise, Article 38(2) VCDR would indirectly endow members of the administrative and technical staff of the mission with immunity from the criminal jurisdiction of the receiving State. The United Kingdom’s consent was thus only required for the search of his workplace at the British embassy because of the inviolability of the premises of the mission.
On 6 April 2022, Smith was extradited to the United Kingdom, and on 17 February 2023 he was sentenced at the Old Bailey in London to thirteen years and two months for spying for Russia.
Category: Diplomatic and consular relations