In a major relief to Indian diplomat Devyani Khobragade, a US court has granted her motion to dismiss the indictment on visa fraud charges, saying she had full diplomatic immunity when the indictment was returned against her on Januray 9.
In a 14-page order, US District Judge Shira Scheindlin said it is "undisputed" that Khobragade acquired full diplomatic immunity from the State Department at 5:47 PM on January 8. The judge said Khobragade did not lose that immunity until her departure for India on January 9.
"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," the judge said. The judge added that on January 9, immediately following the return of the indictment, Khobragade had appeared before the court and appealed for dismissal of the case.
"Because the Court lacked jurisdiction over her at that time, and at the time the Indictment was returned, the motion must be granted," the order said.
"Khobragade's motion to dismiss the Indictment on the ground of diplormtic 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," the judge said.
The judge said Khobragade served as a consular officer in the US from October 26, 2012 through January 8, 2014, a position that "cloaked her with consular immunity" as per the Vienna Convention on Consular Relations.
Khobragade contended that she had additionally obtained diplomatic immunity on August 26, 2013 by virtue of her appointment as a Special Advisor to the United Nations, and such immunity continued through at least December 31, 2013.
The US government had argued that the Indictment should not be dismissed because Khobragade did not have diplomatic immunity at the time of her arrest, and has no immunity at the present time.
In support its claim, the government had submitted a declaration from Steven Kerr, Attorney-Advisor in the Office of the Legal Advisor of the United States Department of State, which said Khobragade "did not enjoy immunity from arrest or detention at the time ofher arrest in this case, and she does not presently enjoy immunity from prosecution for the crimes charged in the Indictment".
Khobragade (39) was arrested on December 12 on visa fraud charges and for making false statements regarding the visa application of her domestic help Sangeeta richard.
She was strip-searched and held with criminals, triggering a row between the two countries with India retaliating by downgrading privileges of certain category of US diplomats among other steps
"Even assuming Kerr's conclusions 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," Scheindlin said.
"Courts in civil cases have dismissed claims against individuals who had diplomatic immunity at an earlier stage of proceedings, even if they no longer possessed immunity at the time dismissal was sought. These 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," the judge said.
The judge further said Khobragade's status at the time of her arrest is "not determinative".
She said 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".
"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 said.
Khobragade concedes that "the 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. However, the Government may not proceed on an Indictment obtained when Khobragade was immune from the jurisdiction of the Court." Reacting to the order, the Manhattan federal prosecutor Preet Bharara's office, which brought visa fraud charges last year against Khobragade, said, "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."