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Who Has Immunity?

Immunity means - as far as it is not about vaccinations - legal protection from criminal prosecution. In the case of diplomats, it is based on a special historical treatment that was given to the representatives of other states. These unwritten rules were spelled out in the early 1960s in the Vienna Convention on Diplomatic Relations (WÜD) and the Vienna Convention on Consular Relations (WÜK).

Whether a diplomat can invoke immunity cannot be seen from the (diplomatic) passport alone. Because immunity depends on whether the diplomat is accredited in a country. This can usually be seen on the protocol ID.

Scope and Limits of Immunity

The immunity not only protects against criminal prosecution, but also, for example, against civil court actions. Article 31 of the VCDR provides only a few exceptions. Immunity also only protects in the host country: that is, diplomats do not enjoy a special status in their home countries.

(1) The diplomat enjoys immunity from the criminal jurisdiction of the receiving state. He is also entitled to immunity from its civil and administrative jurisdiction; the following cases are excluded from this:

a) Actions in rem relating to private immovable property located in the territory of the receiving State, unless the diplomat has them in possession of them on behalf of the sending State for the purposes of the mission;

b) Actions in succession matters in which the diplomat is involved as executor, administrator, heir or legatee in a private capacity and not as a representative of the sending State;

c) Actions in connection with a liberal profession or a commercial activity which the diplomat carries out in the receiving state in addition to his official activity.

(2) The diplomat is not obliged to testify as a witness.

(3) Enforcement measures may only be taken against a diplomat in the cases provided for in paragraph 1 letters a, b and c and only provided that they can be carried out without affecting the inviolability of his person or his home.

(4) The diplomat's immunity from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.

Even if they cannot be legally prosecuted in the host country, Article 41, Paragraph 1 of the VCDR makes it clear that diplomats must nevertheless observe the laws of the receiving country. The Courts Constitution Act (GVG) implements these international legal requirements for the German legal system. Paragraph 18 of this law stipulates that German courts have no jurisdiction over diplomats - so they cannot be the subject of legal proceedings. Accordingly, courts do not rule on the guilt or innocence of foreign diplomats.

State mandate and protection against influence

But why are there all these privileges? This is explained by the task of diplomats, as the preamble of the WÜD explains. Here it is stipulated that the privileges do not serve the purpose of preferring individuals, but rather aim to ensure that the diplomatic missions perform their tasks effectively. According to Article 3 VCDR, these tasks include, for example, representing the home country and its interests in the host country and collecting information about the host country for its home country. However, a diplomat can only properly perform these tasks on behalf of the home country if he or she can exercise them independently and without the influence of the host country. The privileges therefore serve in particular to maintain independence from the host country, for example by excluding threats of imprisonment or legal consequences from the outset. At the same time, however, they are also an expression of appreciation for the other country that the diplomat represents.

Inviolability and other privileges

The well-known immunity is flanked by the principle of the inviolability of the diplomat. Because immunity initially only protects against judicial proceedings, but not against coercive police measures such as arrest. The fact that diplomats must not be arrested or fear other consequences is based on the inviolability in Article 29.

The person of the diplomat is inviolable. He is not subject to arrest or detention of any kind.

The receiving State treats him with due respect and takes all appropriate measures to prevent any attack on his person, freedom or dignity.

The VÜD also provides for other privileges, such as exemption from certain taxes or compulsory social insurance. Instead, income taxes and the like are usually due in the diplomat's home country. However, diplomats also have to pay fees and charges for services such as garbage collection.

What to do in the event of constant legal violations?

Even if there is no legal action, the vast majority of diplomats adhere to local laws. As representatives of their state in the host country, the behavior of diplomats also influences the reputation of their country as a whole. It is therefore in the embassies' own interest that their diplomats do not attract negative attention by disregarding local laws.

In the event of frequent violations, these are often discussed in discussions between the Ministry of Foreign Affairs and the respective embassy. In such a conversation, for example, the Ministry of Foreign Affairs could ask the embassy to withdraw a particular diplomat. Such a request is usually followed. In extreme cases, a diplomat can, as a final consequence, be declared a “persona non grata” and must then be recalled. The sending state is obliged to do so under international law. Further information on the declaration on persona non grata can be found here.

A diplomat is not protected by criminal immunity in his or her own country of origin. Here he can be called to criminal responsibility in any case.

Immunity in other cases

The diplomats are not the only ones enjoying immunity. Employees posted to consulates also enjoy similar - but reduced - rights under the provisions of the Vienna Convention on Consular Relations.

Representatives of a state also enjoy immunity during official visits to a country. This applies in particular to heads of state and government as well as to foreign ministers and their companions. They should be allowed to represent their country abroad without restrictions.

In addition, similar rules also apply to employees of international organizations. These are based on the UN Convention or, in the case of other organizations, on the respective headquarters agreement.