Bharat Rakshak

Dipanker wrote:

A_Gupta wrote: So, it would seem to me that if the US DOJ had a complaint against DK, the proper procedure would have been to inform the MEA and ask them to waive immunity.

If you look at the timeline of the dispute, back in September the State Dept. did inform MEA that DK will be prosecuted.

SEPTEMBER 4, 2013: The US State Department issues a one-sided letter to the Indian Ambassador, projecting the allegations of the maid which are of "considerable concern", and asking for the allegations to be probed. It also seeks a voluntary meeting between Khobragade and the Bureau of Diplomatic Security in the State Department as well as proof of payment of minimum wages from the embassy.

The United States had informed the Indian Government about the allegations against Devyani Khobragade, the Deputy Consul General in New York, over three months prior to her arrest last week.

A State Department official told Mail Today: "To confirm, the State Department notified the Indian Embassy in writing on September 4. The Department of State advised the Embassy of the Republic of India of allegations of abuse made by an Indian national against the Deputy Consul General of India in New York."

US deputy spokesperson revealed in a press briefing that the Indian Embassy in New York was aware about the arrest of Indian Deputy Counsel General Devyani Khobragade, on charges of fraudulent visa document and misleading statements, in September.

"The State Department advised the Embassy of the Republic of India in writing in September of allegations of abuse made by an Indian national against the deputy consul general of India in New York," said Marie Harf, US state department deputy spokesperson, during a briefing while discussing the procedure US authorities went through when US human trafficking department came up with the case against Khobragade.

MS. HARF: Well, we certainly – I mean, this is why we notify governments, including, as we did in September in this case, when there are allegations made against their diplomats or consular officers or other folks in their missions here in the U.S. We tell them their allegations.

MS. HARF: Well, in accordance with – I think this might be what your question is getting at – the Department’s policy of advising foreign missions of allegations made involving a member of a mission or a family member, the State Department advised the Embassy of the Republic of India in writing in September of allegations of abuse made by an Indian national against the deputy consul general of India in New York. I’m sorry, I called her the consul general earlier. I mispronounced her title. So we notified them in writing in September. Obviously, we play a role in this, but the Department of Justice also obviously handles the legal aspect of it as well.

Dipanker wrote:I think the contention is that she is not the top diplomat rather a 2nd/3rd tier staff and therefore only has "functional immunity" not complete immunity.

chaanakya wrote: (excerpt from Indian letter to US Dept of State)

Separately, on July 15, 2013, Mr. Philip Richard, husband of Ms. Sangeeta Richard filed a Writ Petition against Dr. Khobragade and the Union of India alleging that Ms. Sangeeta Richard was in police custody in New York and charging Dr. Khobragade. On July 19, 2013, Mr. Richard voluntarily withdrew his Writ Petition.

Dipanker wrote:I think the contention is that she is not the top diplomat rather a 2nd/3rd tier staff and therefore only has "functional immunity" not complete immunity.

Dipanker wrote:Here is the State Dept. Diplomatic and Consular immunity, this should provide pointers towards the basis for DK's prosecution and whether she had fully diplomatic immunity or only functional immunity as per Vienna Convention guidelines:

http://www.state.gov/documents/organization/150546.pdf

Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority

Except in the case specified in paragraph 1 of this Article, consular officers shall not be committed to prison or liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect

Dipanker wrote:I think the contention is that she is not the top diplomat rather a 2nd/3rd tier staff and therefore only has "functional immunity" not complete immunity.

(c)“head of consular post” means the person charged with the duty of acting in that capacity;

(d) “consular officer” means any person, including the head of a consular post, entrusted in that capacity with the exercise of consular
functions

Dipanker wrote:I think the contention is that she is not the top diplomat rather a 2nd/3rd tier staff and therefore only has "functional immunity" not complete immunity.

39-year-old Khobragade, who was posted as Deputy Consul General in #New York, was also accredited as an "Advisor to the Permanent Mission of India to the United Nations" by the UN w.e.f. 26th August 2013 and her status as an Advisor was valid until 31 December 2013. The accreditation was for the UN General Assembly 2013.

Under the "Convention on the Privileges and Immunities of the United Nations", Article 4 Section 11A specifies "Immunities from personal arrest or detention and from the seizure of their personal baggage" of all representatives of members to the UN and further the Article specifies that the expression "Representative" shall be deemed to include all Delegates, Deputy Delegates, Advisors, Technical Experts and Secretaries of delegations.

Dipanker wrote:I think the contention is that she is not the top diplomat rather a 2nd/3rd tier staff and therefore only has "functional immunity" not complete immunity.

VCCR Article 41 wrote:Article 41
Personal Inviolability of Consular Officers
* Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.
* Except in the case specified in paragraph 1 of this Article, consular officers shall not be committed to prison or liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect.
* If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except in the case specified in paragraph 1 of this Article, in a manner which will hamper the exercise of consular functions as little as possible. When, in the circumstances mentioned in paragraph 1 of this Article, it has become necessary to detain a consular officer, the proceedings against him shall be instituted with the minimum of delay.

VCCR Article 47 wrote:Article 47
Exemption From Work Permits

* Members of the consular post shall, with respect to services rendered for the sending State, be exempt from any obligations in regard to work permits imposed by the laws and regulations of the receiving State concerning the employment of foreign labour. -- Applies to DK
* Members of the private staff of consular officers and of consular employees shall, if they do not carry on any other gainful occupation in the receiving State, be exempt from the obligations referred to in paragraph 1 of this Article. -- Applies to SR

ramana wrote:The US ignored DK's UN accredition. They see only the Dy Consul position in NY.

A_Gupta wrote:

Dipanker wrote:I think the contention is that she is not the top diplomat rather a 2nd/3rd tier staff and therefore only has "functional immunity" not complete immunity.

The US said she had functional immunity with regard to DK's consular function. They did not consider/discuss the Advisor UN Permanent Mission role that DK had, listed in the March 2013 issue by the UN of Permanent Mission staff.

Suraj wrote:Thank you, chaanakya, for repeating the VCCR provisions, and also for your timeline post earlier.

There's a lot of effort being spent on listing the charges against DK and examining their accuracy, without asking whether they have any business bringing charges against her or not - regardless of diplomatic immunity. Just her consular privileges according to Article 47 are enough. Article 41 says her arrest was wrong.

To summarize: DK did not need diplomatic immunity beforehand to prevent her arrest, or from being charged. Articles 41 and 47 of VCCR are enough for that. She needs diplomatic immunity now because the US actions do not comply with VCCR, so the only avenue available to India is to completely avoid the judicial process through immunity.

Article 47
Exemption from work permits
1. Members of the consular post shall, with respect to services rendered for the sending State, be exempt from any obligations in regard to work permits imposed by the laws and regulations of the receiving State concerning the employment of foreign labour.
2. Members of the private staff of consular officers and of consular employees shall, if they do not carry on any other gainful occupation in the receiving State, be exempt from the obligations referred to in paragraph 1 of this Article.

saip wrote:Now the question is if DK asserted her full immunity at the time of her arrest, If she did not, while it will not preclude her from asserting it at a later date, unfortunately, it would absolve the arresting officers from any wrong doing.

Dipanker wrote:
So basically it boils down whether her Adviser to UN Permanent Mission post is ranked high enough to grant her complete immunity or only functional immunity, or whether all UN Permanent Mission staff have complete immunity.

If the answer is latter, case dismissed.

Dipanker wrote:So basically it boils down whether her Adviser to UN Permanent Mission post is ranked high enough to grant her complete immunity or only functional immunity, or whether all UN Permanent Mission staff have complete immunity.

If the answer is latter, case dismissed.

saip wrote:Now the question is if DK asserted her full immunity at the time of her arrest, If she did not, while it will not preclude her from asserting it at a later date, unfortunately, it would absolve the arresting officers from any wrong doing.

I am so grateful for all the outpouring of unequivocal support and backing that has been available to me from the fraternity. I take comfort in the confidence that this invaluable support will also be translated into strong and swift action, to ensure the safety of me and my children, as also to preserve the dignity of our service which is unquestionably under siege.

While I was going through it, although I must admit that I broke down many times as the indignities of repeated handcuffing, stripping and cavity searches, swabbing, hold up with common criminals and drug addicts were all being imposed upon me despite my incessant assertions of immunity, I got the strength to regain composure and remain dignified thinking that I must represent all of my colleagues and my country with confidence and pride. I feel I can continue to do so thanks to this strong and prolific support.

I cannot say more now but will later, I did feel the deep need to thank you all so much.

Devyani

chaanakya wrote:However, the manner of arrest and strip search and cavity search resorted to was uncalled for to say the least.

DK is striped searched, Body cavities are examined which actually constitute rape in India Context.

DNA swab is taken . All part of SOP.

16. Once everything is subsided take one white meat to Thana and show what real CS is all about.

"In reference to your question about the cavity search, the answer is no," Nikki Credic-Barrett, spokesperson of the US Marshals Service, told a news agency in response to a question on the allegations by the family of the senior Indian diplomat that she was subject to cavity search.

A_Gupta wrote: The lawyer for Richard is quoted in the story as saying that the Delhi High Court dismissed Richard's petition against DK (July 19) saying that it did not have jurisdiction for something that happened overseas. That is almost certainly wrong - I provided information about this , including the Delhi High Court ruling on the Richard's petition some pages ago on this thread. The Delhi High Court, as per its web-site, noted the withdrawal of the petition, and said it would take up the matter again if a petition was refiled.

eklavya wrote:

chaanakya wrote:However, the manner of arrest and strip search and cavity search resorted to was uncalled for to say the least.

DK is striped searched, Body cavities are examined which actually constitute rape in India Context.

DNA swab is taken . All part of SOP.

16. Once everything is subsided take one white meat to Thana and show what real CS is all about.

The IFS officer may have been lying about being subjected to a cavity search, or maybe the USMS is lying:

http://www.dnaindia.com/world/report-de ... ls-1937895

http://articles.economictimes.indiatime ... khobragade

http://zeenews.india.com/news/nation/de ... 98089.html

"In reference to your question about the cavity search, the answer is no," Nikki Credic-Barrett, spokesperson of the US Marshals Service, told a news agency in response to a question on the allegations by the family of the senior Indian diplomat that she was subject to cavity search.

eklavya wrote:Let the courts decide.

VCCR Article 41 wrote:Article 41
Personal Inviolability of Consular Officers
* Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.

Wrong. Consular staff and their assistants are not subject to local work permit laws.

Suraj wrote:This is not going to happen, since diplomatic immunity rightly prevents her from being subject to the legal system anymore.

KrishnaK wrote:

VCCR Article 41 wrote:Article 41
Personal Inviolability of Consular Officers
* Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.

Suraj, what the US claims is that trafficking charges meet the criteria of a "grave crime". It should be far easier to contest on the second part that you mention.

eklavya wrote:I'm not sure its easy to conclude that the USMS officer is lying and the IFS officer is not lying. The IFS officer allegedly lied on her application form for an Adarsh apartment, the IFS officer allegedly lied on the visa form for her maid, and the IFS officer may have told lies about being subject to a cavity search. Maybe the IFS officer is a victim of a terrible conspiracy, but maybe, just maybe, the IFS officer tells an awful lot of lies (not in the line of duty). Let the courts decide.

Theo_Fidel wrote:

Suraj wrote:This is not going to happen, since diplomatic immunity rightly prevents her from being subject to the legal system anymore.

Unfortunately this is not entirely correct. Some USA court is going to have to decide that she has immunity. I don't think it is clear at all that she has immunity for the charges filed. Her defense lawyer will undoubtedly go after this.

KrishnaK wrote:

VCCR Article 41 wrote:Article 41
Personal Inviolability of Consular Officers
* Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.

Suraj, what the US claims is that trafficking charges meet the criteria of a "grave crime". It should be far easier to contest on the second part that you mention:

Wrong. Consular staff and their assistants are not subject to local work permit laws.

Theo_Fidel wrote:

Suraj wrote:This is not going to happen, since diplomatic immunity rightly prevents her from being subject to the legal system anymore.

Unfortunately this is not entirely correct. Some USA court is going to have to decide that she has immunity. I don't think it is clear at all that she has immunity for the charges filed. Her defense lawyer will undoubtedly go after this.

My own view that the very next USA move could be to go after her USA husband. If any of the money trail leads to him, say from a joint account, he could easily be in trouble. USA prosecutors tend to turn the screws till they get what they want.