Published: 3 September 2024 Author: Stefan Talmon
On 3 May 2019, German customs and federal police stopped a car with diplomatic registration plates on the A17 motorway from Prague to Dresden for a routine inspection. During the search of the vehicle, officers found 70kg of heroin in two suitcases, neatly packed in 140 packs of 500 grams each, with a street value of more than €3 million. When the two vehicle occupants — Battushig B., Vice-Consul of the Mongolian Consulate General in Istanbul, and Erdenebayar S., his driver, from the domestic service at the same consular post — were to be arrested, they claimed consular immunity. As the two men were not accredited to Germany, however, they were provisionally detained by the police. The following day, the Dresden District Court issued an arrest warrant and ordered their pre-trial detention.
On 11 June 2020, the Regional Court in Dresden sentenced the two Mongolian nationals under the Narcotic Drugs Act to eleven years in prison each for illegal import of narcotic drugs. The two men appealed their convictions to the Federal Court of Justice, claiming that, as members of the consular post of Mongolia in Istanbul, they also enjoyed immunity in Germany. They based their appeal on Article 54(1) of the Vienna Convention on Consular Relations (VCCR), which provides:
If a consular officer passes through or is in the territory of a third State, which has granted him a visa if a visa was necessary, while proceeding to take up or return to his post or when returning to the sending State, the third State shall accord to him all immunities provided for by the other articles of the present Convention as may be required to ensure his transit or return.
In an Order of 25 May 2021, the Federal Court of Justice dismissed the appeal, holding that neither of the two men enjoyed immunity in Germany. The Court stated:
For the defendant Erdenebayar S., this follows from the fact that, according to its clear wording, Article 54(1) of the Vienna Convention on Consular Relations of 24 April 1963 (VCCR) applies only to consular officers and does not confer any special legal status on members of the domestic service of a consular post, a group which included the defendant Erdenebayar S. as driver.
The accused Battushig B. did not enjoy immunity under Article 54(1) of the VCCR either because, even according to his own defence, the requirements of this provision were not met. When he travelled through the Federal Republic of Germany, he was not, as is clear from the geographical location, on a direct return journey from his post in Istanbul in the receiving State of Türkiye to the sending State, Mongolia; rather, he claims to have been travelling to a meeting with other Mongolian consular officers in Belgium. Even if … he had intended to journey on directly from there to Mongolia, the requirements of Article 54(1) of the VCCR would not have been met. The provision only protects journeys through a third State for the sole purpose of transit to reach the receiving State or to reach the sending State. This purpose is not fulfilled if the diplomat or consular officer is temporarily staying in or transiting through a third State for other official reasons. In such a case, privileges and immunities may ensue from other legal bases such as Article 42 of the Convention on Special Missions of 8 December 1969, the requirements of which are evidently not met here either. But these privileges and immunities do not ensue from Article 54(1) of the VCCR. Only such an interpretation corresponds to the object and purpose of Article 54(1) VCCR, the application of which is limited to what is necessary to enable unhindered diplomatic intercourse between the sending State and the receiving State. According to Article 42(4) of the Convention on Special Missions of 8 December 1969, a third State is only required to accord immunity to the representatives of a sending State travelling on a special mission if it has been informed in advance, either in the visa application or by notification, of the transit of those persons as members of the special mission, and has raised no objection to it. Furthermore, these rules would be meaningless if a subsequent declaration that the consular officer had intended to travel to his home country after the special mission were sufficient to establish immunity under Article 54(1) of the VCCR. The opposing view of the defence that it was ‘irrelevant’ that ‘the journey home was not undertaken directly’ therefore proves to be legally erroneous.
In its reasoning, the Federal Supreme Court heavily relied on its 2018 decision on the parallel provision in the Vienna Convention on Diplomatic Relations (VCDR). In that case, the Court had found that Article 40(1) of the VCDR protected only journeys through a third State whose sole purpose was transit to the receiving or sending State.
There was, in fact, no need to take recourse to the interpretation of Article 40(1) of the VCDR as the wording of Article 54(1) of the VCCR makes it clear that the provision applies only to consular officers in transit. This is confirmed by the travaux préparatoires of the provision. At the United Nations Conference on Consular Relations in Vienna in 1963, consular privileges and immunities in third States was one of the more controversial issues. Article 54 introduced a completely new rule, which impacted on the sovereignty of the transit State. The provision was therefore to be applied restrictively. It was to cover only journeys between the sending State and the consular officer’s post. It was also argued that a convention on consular relations could not establish rules for travel on other missions. An amendment to insert ‘or making other official journeys’ after the words ‘when returning to the sending State’ in Article 54(1) was not adopted.
Even if Article 54(1) of the VCCR had been applicable in the Mongolian vice-consul’s case, he would not have enjoyed any immunities in Germany. While Article 40(1) of the VCDR provides that third States shall accord diplomats in transit ‘inviolability and other such immunities’, Article 54(1) of the VCCR speaks only of ‘all immunities provided for by the other articles of the present Convention’ as may be required to ensure the consular officers’ transit or return. This wording was suggested at the Vienna Conference by the United States, which took the position that ‘the phrase fully covered personal inviolability’. The inviolability established by Article 54, however, was not an absolute one, but a limited one incorporated by the reference to ‘all immunities provided for by the other articles of the present Convention’. The relevant article here is Article 41(1) of the VCCR, which reads:
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.
Other States and the International Law Commission (ILC) in the commentary on its draft articles on consular relations also made it clear that consular officers should enjoy in third States only the limited personal inviolability that they enjoy under Article 41(1) in the receiving State.
Article 41(1) of the VCCR only applies to the private acts of consular officers as, according to Article 43(1) of the VCCR, ‘acts performed in the exercise of consular functions’ generally are ‘not amenable to the jurisdiction of the judicial or administrative authorities of the receiving State.’ The smuggling of drugs is not a consular function and thus falls under Article 41(1) of the VCCR. The decisive question in the case of the Mongolian consular officer is thus whether the illegal import of narcotic drugs constituted a ‘grave crime’.
There is in fact no definition of what constitutes a ‘grave crime’ in terms of the VCCR because neither the ILC nor the States attending the Vienna Conference on Consular Relations could reach an agreement and therefore left each receiving State to define such crimes in theiromestic contexts.
At the time of the VCCR’s drafting, Germany had suggested including the following paragraph in Article 41:
For the purpose of this article an offence shall be considered to be a grave crime, if for its commission a maximum sentence of at least four years imprisonment or a more severe punishment is imposed by the law of the receiving State.
Later, in a Circular dated 14 March 1975, the Federal Ministry of the Interior defined ‘grave crime’ as ‘a criminal offence which, under German law, is punishable by a prison sentence of at least three years or more.’ In the most recent (2015) Circular of the Federal Foreign Office, the duration of the prison sentence is unspecified, but it is stated:
The consular officer may not, in principle, be restricted in his personal freedom, for example through arrest or pre-trial detention. However, the following exceptions apply: if a grave crime has been committed and the competent judicial authority has made a decision on the measure depriving the person of his freedom (Article 41(1) VCCR). The decision as to when a grave crime has been committed rests with the court reviewing the detention.
Considering that the Mongolian consular officer was sentenced to eleven years in prison, there is no doubt that he had been arrested and detained for a ‘grave crime’.
‘Smuggling’ had been explicitly mentioned as an example of a ‘grave crime’ in discussions on Article 41 at the Vienna Conference on Consular Relations and had subsequently been tested in court. In 1985, for example, the United States Court of Appeals for the Fourth Circuit held that Article 41(1) governed the question of whether the Vice-Consul of the Consulate of Thailand in Chicago could be arrested and detained for conspiring to distribute heroin and for conspiring to possess heroin with the intent to distribute, finding that he did not enjoy immunity for these crimes under that provision. The Vice-Consul of the Dominican Republic in New York had similarly been denied immunity for smuggling heroin into the United States.
The reason the Federal Supreme Court nevertheless examined the applicability of Article 54(1) of the VCCR, despite the Mongolian consular officer’s having been found guilty of a ‘grave crime’, was that he had been arrested on the spot by the police. Article 41(1) of the VCCR requires that any arrest must be ‘pursuant to a decision by the competent judicial authority’; that is, in Germany, a warrant of arrest issued by a judge or, in case of imminent danger, by a public prosecutor. To protect consular officers from arbitrary arrest and abuses of immunity, the decision of whether there was a ‘grave crime’ was not to be left to the police. As Article 54(1) of the VCCR was found to be inapplicable in the present case, the arrest of the consular officer by the police did not violate international law.
Category: Diplomatic and Consular Relations
DOI: 10.17176/20240903-143737-0
