saip wrote:UlanBatori wrote:I think the legal eagals here are perhaps misunderstimating the point that the distinguished bar-ristah KLNMurthy Esq., QC, has raised.
4. SD opines that immunity does not cover acts prior to receiving immunity. This is sheer pakistan - no UN diplomat and no national leader from any nation would agree to set foot in US if that were really the case - a month after arriving, the Sikh Rights Group or the Red Brigade Rights Group or the Lashkar-e-Toiba Rights Group or the Iraqi Rights Group would file under the 1790 law for actions alleged to have occurred 20 years ago, and whammo! the Cavity Search/Virginity Test Brigade arrives.
That part 'immunity does not cover acts prior to receiving immunity' seems to be correct legal position. But during the immunity people may level charges but no case can be filed nor can the person be arrested. Then there is this statute of limitations. AFAIK it stops during the time of immunity and resumes after the end of immunity.
If I understand immunity correctly, its effectiveness only covers the point at which arrest is made for the crime, and has nothing to do with the date at which the crime may be alleged to have taken place--it is immunity from arrest and prosecution, and not immunity from being suspected of a crime resulting from acts committed on a certain date. In other words, "immunity does not cover acts..." is nonsense if the acts refer to actions by the alleged perpetrator; it only makes sense if the acts are those of the authorities pertaining to law enforcement and prosecution, such as arrest, interrogation, etc.
So, and in light of your statement above, how to explain the SD's actions whereby they granted immunity to DK in January (was it? or late Dec?), presumably only for acts that might be committed post-granting, but then nevertheless went ahead and asked India to waive that immunity (which according to SD and you) for an alleged crime committed prior to that time? If DK was not covered by immunity for allegedly enslaving / trafficking / cheating (take your pick) SR, then what exactly were they asking India to waive and why did they and PB let DK leave the US, while being out on bail after arrest for a crime that was alleged to have occurred earlier in 2013.
It seems that the GOI's interpretation was that SD was asking for a waiver of the immunity (from DK's older UN assignment predating the arrest) that was already in existence at the time of DK's arrest, and the newer, post-arrest immunity (about which there is no dispute between India and the US) is just icing on the cake as it were. Whereas the SD's position (as represented in Indian media not all of which has my implicit trust) seems to be--as much as I can parse and try to make sense of it--is, no, it is not the older pre-arrest immunity that we are asking to be waived, it is the newer, post-arrest immunity that we are talking about.
But the SD's (reported) position on DK's immunity means any legal proceeding against an essentially random, non-immune foreigner can be invalidated by a foreign government simply declaring the arrestee to be its UN diplomat, applying for, and receiving (automatic) immunity for that person.
They could, for instance arrest a random Lhasawalla on Jan 2nd for pi**ing on Preet Bharara on Jan 1st, put him through the "standard process", release him on bail on Jan 5th, pending arraignment on Jan 10th, but then the Revolutionary Buddhist Government of Free Lhasa could declare said Lhasawalla as their UN diplomatic chaprassi on Jan 6th, get it automatically accepted by the SD on Jan 8th and presto, Lhasawalla will be able to board Pushpak Vimaan on Jan 9th back to a life of luxury surrounded by slaves whom he periodically whips for amusement.
Is this the bygolly real, actual position of America? I am telling, what superpower, I say?