Immunity – Extraterritoriality Jurisdiction The Plaintiffs are correct solely on one point; that the Republic of Moldova is not a contracting Member in the European Convention on State Immunity dated 16.5.1972 1. Accordingly, its provisions do not, indeed, have any effect in the present case. However, the whole issue is not exhausted here. 1. In the absence of an express legislative provision of the Cyprus Law the
applicability of the Common Law principles is raised 2. An analogy can be drawn with the express provision of Law 60/65 in the relevant field of diplomatic rights, immunities and privileges3.
The Plaintiffs argue (in paragraph 16 of Ms. Solomonidou Affidavit) for the presence of certain gaps in the evidence produced by Defendant 7. We respectfully put forward the position that such arguments are misleading or irrelevant to the resolution of the issue at trial.
Solely from the commonly accepted basis of the said evidence, i.e.:
(i)
the admitted facts, those being that Defendant 7 is a Member of the Parliament of a foreign state and the Vice – Chairman of the Parliament of Moldova, in conjunction with,
(ii)
the non – disputed fact that the Vice – Chairman of the Parliament is the second in line governmental officer of the Republic of Moldova (exhibit 3 of the Fakonti Affidavit),
1On the other hand, the Republic of Cyprus has ratified it via Law 6/76.
2 Section 29(c) of the Courts Law L.14/60 as well as numerous well – known judgments of the Supreme Court.
3 See section 24 of Law 60/65 to the effect that ‘The international customary law will continue to regulate any other matter for which the present Law does not expressly provide.’.
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the matter of the immunity enjoyed by Defendant 7 and of him not being a subject to the jurisdiction of the Cyprus Courts is being clarified.
2. Defendant 7 did not need to act within the sphere of his state duties of
governmental powers and obviously he is not a diplomat and does not enjoy an immunity resembling diplomatic immunity. Even if all the acts attributed to him by the Plaintiffs had indeed occurred, ‘under his capacity as a private individual and not under the capacity of his public office in Moldova’ (paragraph 16 of the Solomonidou Affidavit), in any event, the Cyprus Court does not have jurisdiction of any of his actions. The explanation for this position has as follows.
According to the Solomonidou Affidavit, the basis for the Action against Defendant 7 is of tortious nature. Under the applicable Common Law principles, in the cases of tort, no exception to the rule of ‘absolute immunity’ 4. ‘Absolute immunity’, according to Common Law, (and as the phrase itself means), does not distinguish between acts which took place during the use of governmental or state power (acta imperii) and acts which took place when acting as a normal private individual (acta gestionis). It provides immunity in both 5.
3. Accordingly, if the present Court decides, on the basis of the above
information, that Defendant 7 is a part of the State of Moldova, then it must decline to assert jurisdiction in relation to him and to provide him the immunity to which he is entitled.
4 Charles J. Lewis, State and Diplomatic Immunity, 2 nd Edition, p.66, ‘at common law there are no exceptions to the rule of absolute immunity is respect of actions in tort.’.
5 As per ibid p.25 ‘It was early in this century that the doctrine of absolute immunity, that accorded immunity not only to acts in exercise of the sovereign authority but also to ordinary commercial activities, began most clearly to assert itself.’. (our emphasis).
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In answering the critical question we remind the Court that the Plaintiffs themselves have admitted that Defendant 7 is the Vice – Chairman of the Parliament of Moldova. Defendant 7, with the evidence adduced, and which on this point does not appear to be questioned (at least not satisfactorily), has illustrated to the Court (with the evidence of a Moldovan law office) that the capacity of the Vice – Chairman of the Parliament of Moldova renders him ipso facto the second in line governmental officer of the Republic of Moldova6.
4. Is Defendant 7, who holds the ‘second post of the State’, according to the
undisputed evidence presented before the Court, ‘part of the State’, as defined by Common Law, as to enjoy immunity from the courts of a foreign state?
We consider that the answer must definitely be affirmative.
Otherwise, the Vice – President of the United States of America, the President of the French Republic, of the Cyprus House of Representatives could very easily receive via DHL writs of summons (and interim orders threatening them with imprisonment in the event they fail to comply with their content) from other states with which their country is not connected on a bilateral or multilateral level by a relevant convention and in which the Common Law applies on the basis that under their capacity as private individuals had participated as orchestrators in alleged fraud or conspiracy to defraud. Any tort occurred in a state they have never visited.
There is no need to expand on the obvious repercussions such development would entail on the global political scene.
Let us limit ourselves to a more tangible example, which, albeit, perhaps, slightly excessive, yet sufficiently illuminative as to the potential repercussions of such interpretation; presently, an interim order is in effect against Defendant 7 in relation to order under paragraph (d). If we were to consider that Defendant 7 had not complied with the Order and that Defendant 7 is on an official visit in Cyprus, would the Plaintiffs be able to instruct a Bailiff to ambush him at the Hilton lobby so as to serve 6 Exhibit 2 of the Fakonti Affidavit, p.3, paragraph 17, ‘Accordingly, it is obvious that the post of Prime – Vice – Chairman of the Republic of Moldova’s Parliament, pursuant to the hierarchy, is the second post of the state’.
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him an Application for Non – Compliance with the Order? If the Court does not decide in a positive manner on the issue of the immunity of Defendant 7, will have every right to act so. Beyond and independently of the Common Law principles, the international community and the international law are in unison in that acts of the highest state officials are not subject to the jurisdiction of foreign countries. In a relevant recent judgment of the International Court of Justice 7 based at Hague it had been decided that certain holders of high – ranking office in a state enjoy immunity from jurisdiction in a foreign state in relation to both criminal and civil responsibilities, exactly the same as diplomatic missions 8. The list of examples that the judgment provides as ‘high – ranking officers in a State, that being, the Head of State, the Head of the Government and the Minister for Foreign Affairs, is indicative but not exhaustive. This results from the words ‘such as’ which illustrate indicative mention 9 and it means that other high ranking officials of a state enjoy the same immunity with those expressly mentioned. Accordingly, is the Vice – Chairman of the Parliament of Moldova and second in line state official among the ‘high ranking state officials of a state’? We consider that there is no doubt.
7 in the case Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium) I.C.J. Reports 2002, p.3, dated 14.2.2002.
8 As per ibid paragraph 51 (the text of the judgment has not been found in Greek translation), ‘The Court would observe at the outset that in international law it is firmly established that, as also diplomatic and consular agents, certain holders of high – ranking office in a State, such as the Head of State, Head of Government and Minister of Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal’. (our emphasis).
9 That is also suggested by Hazel Fox in his work The Law of State Immunity, 2 nd Edition, 2010, p. 671, footnote 22, where commenting on the said extract of the I.C.J. judgment, he mentions: ‘the words ‘such as’ indicating that other categories to those referred to could be included – they were not exclusive’.
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