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US Court dismisses indictment against Indian diplomat Devyani Khobragade

Devyani Khobragade
Devyani Khobragade
In a major relief for Indian diplomat Devyani Khobragade, whose arrest here in December 2013 sparked off a major row between India and the United States, a US Court on Wednesday dismissed the indictment against her on the ground of diplomatic immunity.
 
"Khobragade's conditions of bail are terminated, and her bond is exonerated. It is ordered that any open arrest warrants based on this Indictment must be vacated. The Clerk of the Court is directed to close this motion (Dkt. No. 15) and this case," Judge Shira A Sheindlin of the US District Court of Southern New York said.
 
Ms Khobragade, 39, an Indian Foreign Service (IFS) officer of the 1999 batch, was the Deputy Consul General of India in New York when she was arrested on December 12, 2013 but the Government of India later, on January 8, 2014 transferred her to the Permanent Mission of India (PMI) to the United Nations here to enable her to get full diplomatic immunity. She later flew back to India after being accorded full diplomatic immunity.
 
She had been indicted by a jury on January 9, 2014 on charges of visa fraud and making false statements related to the salary paid by her to her India-based domestic help, Sangeeta Richard, also an Indian.
 
She was, among other things, accused of paying her help much less than promised to her and of filing false documents showing that she was being paid the minimum wages due to her under US laws.
 
According to Indian officials, Ms Khobragade was arrested in front of her daughter while dropping her off at school, handcuffed, strip-searched and held in a cell with hardened criminals.
 
The court noted that Ms Khobragade had, from October 26, 2012 to January 8, 2014 served in a position that cloaked her with consular immunity pursuant to the Vienna Convention on Consular Relations. 
 
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Ms Khobragade had contended that she additionally obtained diplomatic immunity on August 26, 2013 by virtue of another appointment as Special Adviser to the United Nations, and that such immunity continued through at least December 31, 2013.
 
The US Government denied that Ms Khobragade ever had diplomatic immunity as a Special Adviser, and alternately argued that any period 
of diplomatic immunity ended well before December 2013.
 
The US Government had also questioned her entitlement to bring her motion for dismissal of the indictment against her in light of the fugitive disentitlement doctrine, which "bars a defendant from invoking the authority of this Court while simultaneously evading it." 
 
The Court pointed out in this regard that it had expressly modified Ms 
Khobragade's conditions of bail to permit her return to India, she could not be  deemed to have evaded the authority of the Court.
 
The court noted that there was no dispute that Ms Khobragade's position as a Deputy Consul  General at the Indian consulate rendered her a consular officer within the terms of the VCCR. The court also said it was undisputed that she acquired full diplomatic immunity at 5:47 PM on January 8, 2014, and did not lose that immunity until her departure from the country on the evening of January 9, 2014.20 
 
On January 9, immediately following the return of the Indictment, Ms Khobragade appeared before the court through counsel and moved to dismiss the case.
 
The prosecution argued that the indictment should not be dismissed because she did not have diplomatic immunity at the time of her arrest and had no immunity at the present time.
 
In support, the US Government submitted a declaration from Mr Steven Kerr, Attorney-Advisor in the Office ofthe Legal Advisor of the United States Department of State. Mr Kerr concluded that "Dr. Khobragade did not enjoy immunity from arrest or detention at the time of her arrest in this case, and she does not presently enjoy immunity from prosecution for the crimes 
charged in the Indictment."
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The court held that, even assuming Mr Kerr's conclusions to be correct, the case must be dismissed based on Ms Khobragade's conceded immunity on January 9,2014. 
 
"The fact that Khobragade lost full diplomatic immunity when she left the country does not cure the lack of jurisdiction when she was indicted. Courts in civil cases have dismissed claims against individuals who had diplomatic immunity at an earlier stage of proceedings, even if they no longer possessed immunity at the time dismissal was sought. These courts reasoned that the lack of jurisdiction at the time of the relevant procedural acts, such as service of process, rendered those acts void. Because Khobragade moved to dismiss on January 9,2014, the motion must be decided in reference to her diplomatic status on that date. 
 
"Similarly, Khobragade's status at the time of her arrest is not determinative. The State Department has explained that 'criminal immunity precludes the exercise of jurisdiction by the courts over an individual whether the incident occurred prior to or during the period in which such immunity exists.'
 
"Furthermore, several courts have held that diplomatic immunity acquired during the pendency of proceedings destroys jurisdiction even if the suit was validly commenced before immunity applied," the court said.
 
The court noted that the precedent cited by it involved civil claims rather than criminal charges. "However, the Government has not cited any criminal case in which immunity was acquired after arrest, and the Court is not aware of any such case," it said, adding that the precedent was persuasive, given that the standard for dismissing criminal and civil cases based on diplomatic immunity is the same.
 
"Furthermore, because diplomatic immunity is a jurisdictional bar, it is logical to dismiss proceedings the moment immunity is acquired. Even if Khobragade had no immunity at the time of her arrest and has none now, her acquisition of immunity during the pendency of proceedings mandates dismissal.
 
"The Court has no occasion to decide whether the acts charged in the 
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Indictment constitute 'official acts' that would be protected by residual immunity. However, if the acts charged in the Indictment were not 'performed in the exercise of official functions', then there is currently no bar to a new indictment against Khobragade," it said.
 
The Court said that Ms Khobragade had conceded that "[t]he prosecution is clearly legally able to seek a new indictment at this time or at some point in the future now that [she] no longer possesses diplomatic status and immunity ...."
 
"However, the Government may not proceed on an Indictment obtained when Khobragade was immune from the jurisdiction of the Court," it said.
 
The arrest of Ms Khobragade had evoked strong reactions in India, including a slew of measures by the Government reducing the privileges enjoyed by US diplomats in the country.
 
Among other things, the Government asked the US mission to return the identity cards issued to all its consular officers posted in India, to review the immunity and benefits enjoyed them.
 
The Government also asked the Delhi Police to remove all traffic barricades near the US Embassy in Chanakyapuri in Delhi.
 
It is also learnt to have asked the US mission to provide it with details of visas, salaries and so on of all teachers at US schools to ascertain whether all Indian laws were being followed in their cases.
 
The Government also withdrew all airport passes for consulates and import clearances for the Embassy as part of measures aimed at ensuring reciprocity in matters of diplomatic immunity.
 
NNN
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