New York: Indian diplomat Devyani Khobragade today won dismissal of the indictment against her for visa fraud, with a US judge ruling she had full diplomatic immunity although prosecutors are not barred from bringing new charges in future.
District Judge Shira Scheindlin said in her 14-page order that “it is undisputed” that Khobragade acquired full diplomatic immunity at 5:47 pm on January 8 after the US State Department approved her accreditation as a counselor to India’s mission to the United Nations.
While the indictment was returned on January 9, Khobragade had the immunity till she departed from the US for India on the evening of January 9 and so the prosecutors cannot proceed with the current indictment.
“Khobragade’s motion to dismiss the indictment on the ground of diplomatic immunity is granted.
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,” Scheindlin said in her 14-page order, capping months of unprecedented diplomatic tensions between the US and India.
“On January 9, immediately following the return of the indictment, Khobragade appeared before the court through counsel and moved to dismiss the case. Because the court lacked jurisdiction over her at that time, and at the time theindictment was returned, the motion must be granted,” the judge said ordering that the motion and the case be closed.
US Attorney Preet Bharara’s office had argued that Khobragade, 39, was not immune from her December 12 arrest on charges of visa fraud and making false statements about the visa application of her domestic help Sangeeta Richard.
Bharara had said that the indictment should not be dismissed since Khobragade did not employ her domestic worker Richard in her capacity as Deputy Consul General and so does not enjoy immunity from prosecution for the “crimes” for which she was arrested in December.
Reacting to the order, Bharara’s office said the judge has not barred them from going ahead with a new indictment against Khobragade, who now no longer enjoys diplomatic immunity in the US following her departure to India, and will “proceed accordingly” with any fresh indictment.
Scheindlin said that “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.”
She ruled that the government “may not proceed on an indictment obtained when Khobragade was immune from the jurisdiction of the court”.
“The court has no occasion to decide whether the acts charged in the 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,” the judge’s order said.
“Khobragade concedes 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 ….”
Bharara’s office said the district court found that Khobragade had immunity during a limited period of time between January 8 and January 9, when the current indictment was returned by a grand jury.
“As the court indicated in its decision that as Devyani Khobragade has conceded, there is currently no bar to a new indictment against her for her alleged criminal conduct and we intend to proceed accordingly,” Chief Public Information Officer for the US Attorney’s Office, Southern District of New York James Margolin told PTI.
Indian Ambassador to the US S Jaishankar, who was in the city to attend a reception held in his honour at the Indian Consulate, incidentally the former office of Khobragade, did not comment on the judge’s order except to say that since the order came only today, “people need to study it.”
Khobragade’s lawyer Daniel Arshack welcomed the ruling saying that “the law requires that any prosecution brought against an individual with diplomatic immunity must be dismissed. We’re pleased and heartened that the rule of law has prevailed.”
“We are heartened that the court agreed with our legal analysis and rejected the prosecution’s arguments by dismissing the case,” Arshack said.
“Technically, the prosecution remains free to re-indict Dr Khobragade. However, the decision to do so might well be viewed as an aggressive and unnecessary act. This current circumstance might well present the best opportunity for a lasting and final diplomatic resolution,” he said.
In support of his motion to not dismiss the indictment, Bharara had submitted a declaration from Attorney-Advisor in the Office of the Legal Advisor of the United States Department of State Steven Kerr who said that 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.”
Scheindlin’s order, coming exactly three months after Khobragade’s humiliating arrest, said even if Kerr’s conclusions are assumed to be correct, the case must be dismissed based on 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 stageof proceedings, even if they no longer possessed immunity at the time dismissal was sought,” the judge said.
She said that such 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,” Scheindlin said.
Khobragade had served as a consular officer in the Indian Consulate here from October 26,2012 through January 8, 2014, a position that “cloaked her with consular immunity” as per the Vienna Convention on Consular Relations (VCCR). Khobragade had contended that she additionally obtained diplomatic immunity on August 26,2013 after she was appointed as a Special Advisor to the UN and that such immunity continued through at least December 31, 2013.
Khobragade’s appointment on January 8 as Counselor to the Permanent Mission of India to the United Nations, cloaked her with “full diplomatic immunity,” the judge said.
On January 9, after the indictment was returned against her, the State Department asked the Indian government to waive Khobragade’s diplomatic immunity “in order that the charges may be adjudicated in accordance with the laws of the US”.
After the Indian government declined to waive Khobragade’s immunity, the State Department requested her immediate departure from the country.
In the order, the judge explained that as a signatory to the Vienna Convention on Consular Relations, the US grants limited immunity to consular officers but diplomatic officers enjoy a higher level of immunity than consular officers.