KHOSROW MINUCHER, petitioner, vs. HON. COURT OF APPEALS and ARTHUR SCALZO, respondents
Khosrow Minucher, an Iranian national and a Labor Attaché for the Iranian Embassies in Tokyo, Japan and Manila came to the country to study in 1974 and continued to stay as head of the Iranian National Resistance Movement.
In May 1986, Minucher was charged with an Information for violation of Republic Act No. 6425, Dangerous Drugs Act of 1972. The criminal charge followed a “buy-bust operation” conducted by the Philippine police narcotic agents in his house where a quantity of heroin was said to have been seized. The narcotic agents were accompanied by private respondent Arthur Scalzo who became one of the principal witnesses for the prosecution.
In August 1988, Minucher filed Civil Case before the Regional Trial Court (RTC) for damages on the ‘trumped-up’ charges of drug trafficking made by Arthur Scalzo.
WON private respondent Arthur Scalzo can be sued provided his alleged diplomatic immunity conformably with the Vienna Convention on Diplomatic Relations
The SC DENIED the petition.
Conformably with the Vienna Convention, the functions of the diplomatic mission involve, the representation of the interests of the sending state and promoting friendly relations with the receiving state. Only “diplomatic agents,” are vested with blanket diplomatic immunity from civil and criminal suits. Indeed, the main yardstick in ascertaining whether a person is a diplomat entitled to immunity is the determination of whether or not he performs duties of diplomatic nature. Being an Attache, Scalzo’s main function is to observe, analyze and interpret trends and developments in their respective fields in the host country and submit reports to their own ministries or departments in the home government. He is not generally regarded as a member of the diplomatic mission. On the basis of an erroneous assumption that simply because of the diplomatic note, divesting the trial court of jurisdiction over his person, his diplomatic immunity is contentious.
Under the related doctrine of State Immunity from Suit, the precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of customary international law. If the acts giving rise to a suit are those of a foreign government done by its foreign agent, although not necessarily a diplomatic personage, but acting in his official capacity, the complaint could be barred by the immunity of the foreign sovereign from suit without its consent. Suing a representative of a state is believed to be, in effect, suing the state itself. The proscription is not accorded for the benefit of an individual but for the State, in whose service he is, under the maxim – par in parem, non habet imperium – that all states are sovereign equals and cannot assert jurisdiction over one another. The implication is that if the judgment against an official would require the state itself to perform an affirmative act to satisfy the award, such as the appropriation of the amount needed to pay the damages decreed against him, the suit must be regarded as being against the state itself, although it has not been formally impleaded
A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long as it can be established that he is acting within the directives of the sending state. The consent of the host state is an indispensable requirement of basic courtesy between the two sovereigns.
The “buy-bust operation” and other such acts are indication that the Philippine government has given its imprimatur, if not consent, to the activities within Philippine territory of agent Scalzo of the United States Drug Enforcement Agency. In conducting surveillance activities on Minucher, later acting as the poseur-buyer during the buy-bust operation, and then becoming a principal witness in the criminal case against Minucher, Scalzo hardly can be said to have acted beyond the scope of his official function or duties.