How absolute is diplomatic immunity
immunity : What are diplomats allowed to do?
The Berlin State Labor Court has dismissed the lawsuit against a Saudi diplomat for alleged exploitation of a domestic worker. The reason is its diplomatic immunity. A judgment that many people fail to understand. The dispute continues, however, a new law may have to be found, demands ex-Federal Constitutional Judge Jürgen Kühling.
Why is there immunity?
Immunity is a privilege that is not intended to reward but serves a purpose. Political immunity is intended to protect officials and mandate holders from the arbitrariness of the state executive. A parliament should function without the authorities being allowed to look for reasons at their discretion to intervene in the actions of the MPs. Heads of state enjoy immunity under international law abroad, and those posted by other states enjoy diplomatic immunity in the host country - this, too, is a centuries-old legal tradition.
Immunity today secures relations with the sending state and guarantees free communication. It protects against courts and administration in the host state, there is no criminal prosecution and civil law claims are not enforceable. Diplomats, however, are not completely untouchable, they can be declared “persona non grata” and expelled - then they may face legal proceedings in their home country.
How is immunity regulated?
Regulations in the Courts Constitution Act exempt "diplomatic missions, their family members and their private domestic workers" from German jurisdiction. The basis of international law is the Vienna Convention on Diplomatic Relations. The immunity is absolute and, according to the prevailing legal opinion, does not allow any breach even in the event of human rights violations. Maintaining international relations has priority.
What is the dispute in the Berlin case about?
Dewi Ratnasari, her real name is not known, is said to have toiled like a slave in the Berlin household of a Saudi embassy employee for almost two years. And that's how she is said to have been treated: Not only that her wages were withheld. The diplomat's wife and the couple's older child are said to have beaten and humiliated them. The Indonesian is back in her home country. She has assigned her claims, the German Institute for Human Rights is supporting the process.
The plaintiffs are concerned with the principle. The Berlin court has approved the appeal to the Federal Labor Court in Erfurt. The ex-judge and lawyer Kühling wants to ensure that civil law claims in the case of the exploitation of domestic workers can be sued despite immunity. Should the courts continue to deny the claims, the legislature must intervene. The lawyer, who was concerned with the constitutional aspects of labor law during his time in Karlsruhe, sees no interference with immunity: it is not the diplomat but the German state that has to pay. Kühling speaks of a "human rights standard" that was confirmed in a comparable case by the French Constitutional Court.
What other incidents have there been?
Around 250 private domestic workers work in diplomatic households in Germany. As early as 2008, a diplomat from Yemen had employed an employee in Berlin under slave-like conditions and physically abused him. The embassy paid the missing salary at the time, but the case had no consequences for the diplomat. According to research by the Tagesspiegel, the ambassador of Bangladesh also harassed his employees - the Foreign Office asked him to interview.
Also without legal consequences, a Kazakh embassy employee beat up a taxi driver in Reinickendorf in March of this year. The man then fled without paying. A few minutes later he was arrested by the police. But she had to let him go after he had identified himself as a diplomat and paid for the trip.
These are the most spectacular cases, but most of the trouble is in everyday traffic. In 2010 the diplomatic tickets in Berlin reached a new record. In 2009 there were still 8,610 violations, last year the number rose to almost 15,000. The city lost 156,595 euros due to unpaid parking tickets. In addition, diplomats always seem to have the right of way: in 2010, diplomatic cars were involved in 62 accidents, and in 40 cases the perpetrator fled from the scene of the accident. A crime that will not be prosecuted. This is what happened with a South Korean who, after a visit to a restaurant in Friedenau, got drunk behind the wheel of his SUV, rammed several vehicles and got stuck in a doorway with his car. The police stopped the 48-year-old and asked him to do a alcohol test. The South Korean pulled out his diplomatic passport and refused to allow alcohol to be checked. The police had to accept that.
How do German diplomats behave abroad?
Little can be learned about this. One case became public in November 2008 when a German teacher in Russia drove two students to death in his Porsche Cayenne. He was traveling 50km / h too fast. Because he taught at the German School in Moscow, he enjoyed diplomatic status and thus criminal immunity. He left unhindered. The teacher was subsequently sentenced by a German court to one year probation, one month's driving license revocation and a fine of 5000 euros. However, the ruling was criticized by many sources - including the Russian Foreign Ministry - as being far too mild.
When asked in August this year about the involvement of German diplomats in traffic accidents abroad, the Foreign Office replied that no statistics were collected on accidents by German diplomats abroad. There is also no obligation for those affected to report to the Federal Foreign Office. If you receive corresponding reports in individual cases, this will be noted in the personnel file.
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