GO 9-2.0 Foreign Nationals and Consular or Diplomatic Immunity.pdf

OVIEDO POLICE DEPARTMENT GENERAL ORDER EFFECTIVE DATE: 07-12-2021 APPROVAL: NUMBER: Dale Coleman Chief of Police GO 9-2.0 SUBJECT: Foreign Nationals and Consular or Diplomatic Immunity REFERENCE: CFA Chapter 18; US Department of State Publication 10969, “Consular Notification and Access”; and US Dep...

OVIEDO POLICE DEPARTMENT GENERAL ORDER EFFECTIVE DATE: 07-12-2021 APPROVAL: NUMBER: Dale Coleman Chief of Police GO 9-2.0 SUBJECT: Foreign Nationals and Consular or Diplomatic Immunity REFERENCE: CFA Chapter 18; US Department of State Publication 10969, “Consular Notification and Access”; and US Department of State Publication “Diplomatic and Consular Immunity: Guidance for Law Enforcement and Judicial Authorities” AMENDS: None RESCINDS: None I. II. III. IV. V. VI. VII. PURPOSE POLICY DIPLOMATIC IMMUNITY DIPLOMATIC OFFICERS CONSULAR OFFICERS ARREST OF FOREIGN NATIONAL CONFIRMATION OF STATUS I. PURPOSE The purpose of this order is to establish proper guidelines for handling police incidents that involve persons entitled to privileges generally referred to as “Diplomatic Immunity.” II. POLICY It is the policy of the Oviedo Police Department that sworn members ensure that Diplomatic and Consular Officers are afforded their respective privileges, rights, and immunities, as directed by international law and federal statutes. These officials are to be treated with the courtesy and respect that befit their distinguished positions. At the same time, it is a well-established principle of international law that, without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect laws and regulations. Oviedo Police Department GO 9-2.0 Foreign Nationals and Consular or Diplomatic Immunity III. IV. Page 2 of 6 DIPLOMATIC IMMUNITY A. Diplomatic immunity, a principal of international law, is broadly defined as the freedom from local jurisdiction accorded to duly accredited diplomatic officers, their families, and members of the service staff. There are different levels of immunity that may be accorded to the different classes of diplomats, their families, and members of the staff. Even if the person has “immunity,” his government may waive that immunity in whole or part thereby allowing for formal prosecution. Law enforcement should investigate and prepare a case as completely and fully as possible within the privileges and immunities enjoyed with the understanding that prosecution might be allowed if a waiver of immunity is sought and granted. B. Associated with this personal immunity is the inviolability enjoyed by the premises of the mission of the sending state and the private residence of a diplomatic agent, his property, papers, and correspondence. DIPLOMATIC OFFICERS A. Ambassadors and ministers are the representatives of a foreign government. highest-ranking diplomatic B. Other diplomatic titles are Minister Counselor, Counselor, First Secretary, Second Secretary, Third Secretary, and Attaché. These officials are usually located in either Washington, D.C. or in New York City. Diplomatic officers, their families, official staff and service staff, who are not nationals of or permanent residents in the receiving country are protected by limited immunity from arrest, detention, or prosecution with respect to any civil or criminal offense. No person thus protected shall be arrested or detained for any reason. C. The degree of privileges and immunities is dependent upon what category the persons falls within. There are three (3) different categories of personnel and even within these categories there are different classes of persons. The status of any person claiming immunity status must be verified with the Department of State. See Section VII Confirmation of Status. GO 9-2.0 Foreign Nationals and Consular or Diplomatic Immunity Oviedo Police Department GO 9-2.0 Foreign Nationals and Consular or Diplomatic Immunity V. Page 3 of 6 CONSULAR OFFICERS A. B. Consular Officers are Consuls-General, Deputy Consuls-General, Consuls and Vice Consuls. They are also official representatives of foreign governments. Consular Officers are required to be treated with due respect, and all appropriate steps are to be taken to prevent any attack on their person, freedom, or dignity. They are entitled to limited immunities as described below: 1. Under prevailing international law and agreement, a foreign career Consular Officer is not liable for arrest or detention pending trial except in the case of a felony offense that would endanger the public safety and pursuant to a decision by competent judicial authority. A Consular Officer’s immunity from criminal jurisdiction is limited to acts performed in the exercise of consular functions and is subject to court determination. 2. Traffic citations do not constitute an arrest. Consular Officers may be issued traffic citations at an officer’s discretion. 3. Consular archives and official documents are inviolable at all times and wherever they may be. The official correspondence of the consular post (all correspondence relating to the consular post and its functions) is also inviolable. Honorary Consuls: Honorary Consuls are appointed to perform functions generally performed by career Consular Officers. Honorary Consuls are not entitled to personal immunity from civil and criminal jurisdiction, except when performing acts in the exercise of consular duties. GO 9-2.0 Foreign Nationals and Consular or Diplomatic Immunity Oviedo Police Department GO 9-2.0 Foreign Nationals and Consular or Diplomatic Immunity VI. Page 4 of 6 ARREST OF FOREIGN NATIONAL A. Notification Requirements: 1. 2. B. Mandatory Notification: a. Notification of consular officials of the arrest or detention of foreign nationals from certain countries is mandatory and must be accomplished immediately following the arrest or detention. Notification must be made even if the foreign national indicates that he/she does not wish consular officials to be notified. A list of those countries requiring mandatory notification is provided in Attachment B “Arresting a NonU.S. Citizen” along with additional information on the consular notification process. b. Notification of consular officials should be made via telephone, email, or fax communication. A fill in the blank fax sheet is provided in Attachment C. Optional Notification: a. If the foreign national’s country of citizenship is not on the list on Attachment B “Arresting a Non-U.S. Citizen”, notification is optional. The foreign national must be informed of his/her right to have consular officials notified. If the foreign national wishes notification to be made, contact must be made per section 1 b. above. b. If the foreign national indicates that he/she does not wish notification to be made, this wish must be honored; this shall be noted in the official police report documenting the incident in question. Consular Access to Detained Foreign Nationals: 1. Detained foreign nationals are entitled to communicate with their consular officials. Communication includes the right to visit, converse, and correspond with consular officials. 2. Consular officials may arrange for legal representation for their foreign nationals. Consular officials may not act as attorneys for their nationals. GO 9-2.0 Foreign Nationals and Consular or Diplomatic Immunity Oviedo Police Department GO 9-2.0 Foreign Nationals and Consular or Diplomatic Immunity 3. C. Page 5 of 6 Communication between consular officials and foreign nationals may be subjected to local laws and regulations governing communication with incarcerated persons. Such laws and regulations may not be so restrictive as to defeat the purpose of consular access and communication. Other Interactions with Foreign Nationals: 1. Deaths of Foreign Nationals: If the Oviedo Police Department becomes aware of the death of a foreign national in the United States, notification shall be made to the deceased national’s consulate officials. 2. Appointment of Guardians or Trustees: Whenever a probate court or other legally competent authority considers appointing a guardian or trustee for a foreign national who is a minor or an adult lacking full capacity, a court official or other appropriate official involved in the guardianship process must inform the nearest consular officers for that national’s country without delay. D. Record Keeping: 1. Any effort by members of the department to notify a consular official of an interaction with a foreign national shall be documented fully in the official police report concerning the incident in question. 2. Documentation should include dates, times, telephone numbers, names and titles of individuals the sworn member spoke with, and the content of the conversations. 3. Copies of faxes, emails, and any other forms of confirmation of receipt notifications shall be retained. GO 9-2.0 Foreign Nationals and Consular or Diplomatic Immunity Oviedo Police Department GO 9-2.0 Foreign Nationals and Consular or Diplomatic Immunity VII. Page 6 of 6 CONFIRMATION OF STATUS A. Should it become necessary to confirm or clarify the status of an individual with respect to the level of immunity, the U.S. Department of State should be contacted during normal business hours. After normal business hours, members shall contact the Diplomatic Security Command Center. Contact numbers can be found on Attachment D. B. While such confirmation is being made, the individual in question should NOT be arrested, but detained under as discreet and tactful conditions as possible. C. Instructions from the U.S. Department of State shall be followed without variation. A full report detailing any incident involving diplomatic individuals shall be prepared and forwarded to the Chief of Police immediately. /s/ DHC ____________________________________ DALE COLEMAN CHIEF OF POLICE 04-01-2021 __________________ DATE GO 9-2.0 Foreign Nationals and Consular or Diplomatic Immunity