Where plaintiffs had served process upon Zimbabwe's President and Foreign Minister during their visit to United Nations headquarters, Second Circuit upholds their immunity from suit and rules that government representatives cannot be served as agents for defendant political party under U.N. and Vienna Conventions
The Zimbabwe African National Union-Patriotic Front (ZANU-PF) is a private political party which has ruled Zimbabwe since 1980. During the relevant time period here, Robert Mugabe was the President of Zimbabwe and Stan Mudenge was the Foreign Minister and a ZANU-PF official.
Several Zimbabwe persons filed a law suit in a New York federal court against Mugabe, Mudenge, ZANU-PF and others, alleging violations of the Alien Tort Claims Act (ATCA) [28 U.S.C. Section 1350], the Torture Victim Protection Act of 1991 (TVPA) [Pub.L. No. 102-256, 106 Stat. 72, 28 U.S.C. Section 1350 note], and international human rights norms. ZANU-PF affiliates have allegedly tortured, assaulted, and executed plaintiffs and/or their family members. Plaintiffs served defendants during Mugabe's and Mudenge's visit to New York as delegates to the United Nations.
The U.S. government filed a "suggestion of immunity" under 28 U.S.C. Section 517 as to Mugabe and Mudenge based on diplomatic and head-of-state immunity. The district court found Mugabe and Mudenge immune, but considered the service of process valid as to ZANU-PF. It, however, did not respond to the suit and the district court entered a $71 million default judgment against it. The U.S. then appealed this judgment. The U.S. Court of Appeals for the Second Circuit affirms in part and reverses in part.
The Court substantially agrees with the district court which dismissed the claims against Mugabe and Mudenge because of diplomatic immunity under the U.N. Convention on Privileges and Immunities [21 U.S.T. 1418] and the Vienna Convention on Diplomatic Relations [April 18, 1961, 23 U.S.T. 3227, T.I.A.S. No. 7502, entered into force for U.S. December 13, 1972].
Under Article IV, section 11, of the U.N. Convention, "Representatives of Members to the ... United Nations ... shall, while exercising their functions and during their journey to and from the place of meeting, enjoy the following privileges and immunities: (a). ... in respect of words spoken or written and all acts done by them in their capacity as representatives, immunity from legal process of every kind; ... (g). such other privileges, immunities and facilities not inconsistent with the foregoing as diplomatic envoys enjoy ..."
Article 31 of the Vienna Convention provides that "(1) A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction [subject to certain exceptions] ..." In the Court's view, none of the specific exceptions of Article 31 applies. Thus Mugabe and Mudenge enjoy immunity under both Conventions.
The Court then turns to the service of process on Mugabe and Mudenge as agents for ZANU-PF. Under Article 29 of the Vienna Convention, "[t]he person of the diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect ..."
The Court then applies the Conventions to the facts here. "We ... disagree with the district court's interpretation of the interplay between Articles 29 and 31 of the Vienna Convention. The district court reasoned that because Article 31 permits suit against " and, therefore, service of process upon " diplomats in certain limited circumstances, service of process does not violate the inviolability principle. ..."
"But this reasoning turns controlling precedent on its head. ... [W]e explained that the inviolability principle "makes no provision for exceptions other than those set forth in Article 31.' ... Accordingly, the fact that service of process is allowed in order to initiate the actions permitted by the express exceptions to inviolability does not mean that service of process on a diplomat is otherwise permissible under Article 29. If anything, that fact indicates that service of process on a diplomat in any action not specified in Article 31 would be improper ... " [Slip op. 46-47]
"Like the court in [Hellenic Lines, Ltd. v. Moore, 120 U.S. App. D.C. 288, 345 F.2d 978 (1965)], we have no reason to doubt the Government's assertion that, as a practical matter, service of process on a person entitled to diplomatic immunity both interferes with that person's representative functions and constitutes an affront to his or her dignity. ..."
"In light of the court's own admonition that the inviolability principle be construed broadly, we hold that Article 29 of the Vienna Convention, as applied to Mugabe and Mudenge through Article IV, section 11(g) of the U.N. Convention ..., protected Mugabe and Mudenge from service of process as agents for ZANU-PF. Therefore, ZANU-PF was not properly served, and the claims against it should have been dismissed." [Slip op. 50-51]
Citation: Tachiona v. United States, 2004 WL 2240401; Nos. 03-6033(L), 03-6043(XAP) (2d Cir. October 6 ).
USA visa and immigration information is available at www.immigrationtelevision.com.
|
