New York: Two employment contracts signed between Devyani Khobragade and her maid Sangeeta Richard have been submitted to a court here by US prosecutors as a proof that the Indian diplomat had allegedly made false statements to American authorities.
As a grand jury indicted 39-year-old Khobragade on charges of visa fraud and making false statements, US top prosecutor Preet Bharara submitted seven documents with the federal court in Manhattan.
One of these exhibits is the employment contract signed between Khobragade and her maid on November 11, 2012 that was submitted with the US Embassy when Richard went for her visa interview.
The contract states that under the employment conditions that will apply to Khobragade and Richard “during the period of employment in the US,” Richard will be paid USD 9.75 per hour as per “wages at the prevailing or minimum wage rate as required by law, whichever is greater”. It said she would work 40 hours per week with an off on Sunday.
It also adds that wages to Richard should be paid “biweekly by electronic fund transfer” to her bank account.
Neither Khobragade nor Richard’s “family members will have access to the employee’s bank account,” it added.
Another document submitted by Bharara is an “India non-judicial e-stamp,” which is a separate employment contract dated November 21, 2012 between Khobragade and Richard. In this it is stated that Richard will be paid “an expected salary of Rs 25,000 per month with an additional Rs 5,000 for overtime ie work on Sunday, after hours and for parties.” It goes on to say that the “maximum” salary per month including overtime allowance “will not exceed” Rs 30,000 per month.
It is these two employment contracts that are at the crux of the criminal charges that Bharara has brought against Khobragade.
The indictment said that Khobragade’s “decision to manufacture a fraudulent employment agreement” showing the USD 9.75 hourly wage and which appear to be complying with the requirements of US law “demonstrated clearly” Khobragade’s knowledge of the applicable legal requirements.
However, she never intended to pay Richard the USD 9.75 hourly wage and so made a separate contract with her which said that Richard will be paid Rs 30,000 a month, the indictments added.
“Knowing that if the US authorities were told the truth about the actual terms of her employment agreement with the victim (Richard), Khobragade would not have been able to obtain a visa for the victim, Khobragade decided to make false statements to the US authorities,” it said.
The indictment added that in the second contract that Khobragade signed with Richard, she “specifically deleted” a provision acknowledging that Khobragade “agrees to abide by federal, state and local laws in the US.”
“Here the State Department’s decision to fully grant diplomatic credentials mandates the dismissal of this action in accordance with the Vienna Convention on Diplomatic
Relations and the Diplomatic Relations Act. We therefore respectfully ask that the court do so immediately.
“Please accept this letter – dismissal on motion of action against individual entitled to immunity which holds that ‘Such immunity may be established upon motion or suggestion by or on behalf of the individual.'”
Arshack argued that case law has held that diplomats accredited to the UN are accorded the same diplomatic immunity as diplomats accredited to the US.
He said Khobragade had claimed complete immunity when she was first presented before the court on December 12, 2013 after her arrest on visa fraud charges.
On August 26, 2013 she had been appointed “special advisor to the UN” and was given a blue card by the UN during Prime Minister Manmohan Singh’s visit for the UN General Assembly session. “Based on this credential, she had full diplomatic immunity as of August 26, 2013,” Arshack added.
He further states that law enforceme agent responsible for arresting Khobragade “neglected to follow” the State Department instructions relating to diplomats with full immunity.
“The agent did not call the UN protocol office, had he done so he would have been informed of Khobragade’s status and the arrest would not have occurred.”
While Khobragade’s special appointment as advisor to the UN expired on December 31, 2013 the full immunity she was entitled to on December 12 “establishes the arrest as illegal and the case must also be dismissed for that reason.”
Arshack stressed that the Second Circuit court has made clear that courts must dismiss an action against anyone who is entitled to immunity under the Vienna Convention.
He cited the US State Department advisory to its officers and judges that “diplomatic agents also enjoy complete immunity from the criminal jurisdiction of the host country’s courts and thus cannot be prosecuted no matter how serious the offense unless their immunity is waived by the sending state.”
“Despite any sentiments that one may have regarding the unproven merits or lack thereof of this case, the fact remains that Khobragade’s diplomatic status and corresponding immunity requires adherence to the decision of the State Department with regards to the consequences of its decision.
Arshack cited the State Department’s own instructions on diplomatic and consular immunity which say 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.”
He also submitted in court a letter dated January 8, 2014 from the US Mission to the UN to Khobaragde which states that as of 5:47 pm on that day, she has been recorded as a counsellor at the Indian Mission to the UN and is entitled to the “privileges and immunities” of a diplomatic envoy.
The letter said that members of her family living with her also enjoy immunity from the criminal jurisdiction of the US and immunity from civil and administrative jurisdiction consistent with the Vienna Convention.
He submitted another January 9 letter from the Indian Embassy in Washington to Assistant Secretary Nisha Biswal that acknowledged the note from the US mission to the UN requesting Khobragade to depart the US.
India had conveyed to the US that it will not waive the immunity of Khobragade.
Following this, a diplomatic note was sent from the US Mission to the UN, dated January 9 to the Indian mission at the UN.
The note said that “in accordance with the policy of the host country, Khobragade’s name would be placed in the visa and immigration lookout systems to prevent the routine issuance of any future visa. Upon her departure a warrant may be issued for her arrest and should she seek to enter the US she could be arrested.”
“This departure is based on confirmation provided by US government that in doing so Counsellor Khobragade would not be in violation of the bond conditions set by the US District Court of the Southern District of New York on December 12, 2013,” the letter said.
