Aralbaeva Aigerim Adilovna
candidate of Law, associate professor
of the Department of international law, The Kazakh University of International
Relations and World Languages named after Abylai
Khan, Republic of Kazakhstan, Almaty
Ryskeldi Akbota
Master of 2-course in the specialty
"International Law" KazUIRaWL named after Abylai Khan Republic of Kazakhstan, Almaty
ACTUAL ISSUES OF THE IMMUNITY AND
PRIVILEGES OF PERSONNEL OF FOREIGN DIPLOMATIC MISSIONS IN THE REPUBLIC OF
KAZAKHSTAN
Some problematic issues of determining the immunity and privileges of the personnel
of foreign diplomatic missions in the Republic of Kazakhstan are considered in
the given article. Also at a contemporary stage the objective necessity in
theoretical understanding of international relations increases where the
Republic of Kazakhstan is an active participant, in the given article this
issue is considered from the point of view of the international law. In the
given article legal characteristics of the current legislation of the Republic
of Kazakhstan in this field is analyzed, its compliance with Constitutional standards
is revealed.
It becomes obvious that at a contemporary stage the objective necessity in
theoretical understanding of international relations increases where the Republic
of Kazakhstan is an active participant, in this article we are going to
consider this issue from the point of view of the international law. In this
respect, one of the primary challenges facing Kazakhstan is to resolve
contradiction between the new socio-cultural superstructure and the potential
that was inherited at the times of stagnation. For the second decade the
republic upholds its right to democracy fighting for
consolidation of market mechanisms of economy, development of the absolute
primacy of human rights and freedoms on its territory because without
establishing truly democratic foundations of society it can not be equal with
other countries in a foreign political dialogue.
From the standpoint of the new political and legal policy deep understanding
of the role and importance of the international law is necessary; its balanced
relationship with the national law is also an important problem. These
problematic aspects have commonplace features and concern almost all institutions
of the international law. However taking into account such fact that many
achievements of our country are related to political, legal and foreign course
chosen by the President of Kazakhstan N.A. Nazarbayev
implementation of the policy by means of diplomacy
is of particular importance. A certain share of success and achievements of the
republic belongs to Kazakhstani diplomats who coped with the tasks assigned to
them during the period of perestroika and helped the country to come out of the
complicated economic crisis. The great merit of Kazakhstani diplomacy is that
the republic was recognized abroad, they began to believe in its prospects.
In connection with this trend of increasing urgent need for close attention
to the issues of regulation of the status of the diplomatic staff, providing the
scope of rights and guarantees necessary for carrying out their important
foreign policy functions, where the central place ever since the pre-state era
is taken by diplomatic immunities and privileges.
However the theme of the research in the present period of development of
legal and democratic relations, political and economic relations on the
international arena, obviously gets new push for deep understanding of specific
issues of diplomatic immunities and privileges. Outside the legal research
there are still conceptual approaches to improvement of the holistic Institute
of immunities and privileges in the Republic of Kazakhstan; in terms of
scientific criticism many aspects of international regulation of diplomatic
immunities and privileges are not considered.
The legal fundamentals of the Republic of Kazakhstan were also added by the
norms of the international law of historical significance such as: Vienna
Convention on Diplomatic Relations (Vienna, 18 April, 1961); The UN Convention
on Privileges and Immunities of the United Nations (New York, 13 February,
1946); Convention on Privileges and Immunities of the Eurasian economic
community (Minsk, 31 May, 2001); Convention on Prevention and Punishment of
Crimes against Internationally Protected Persons including Diplomatic Agents
(New York, 14 December, 1973); Convention on Legal Assistance and Legal
Relations in Civil, Family and Criminal Matters (Minsk, 22 January, 1993amended
on 28 March, 1997); European Convention on Extradition (Strasbourg, 13 December,
1957) and others.
This research develops and supplements the general theoretical provisions
of many branches of law such as the international (diplomatic) law,
constitutional law, theory and history of state and law, history of state and
law of the Republic of Kazakhstan, criminal law, civil law, administrative law,
criminal procedural law, customs law, tax law and other law branches of
Kazakhstan. Refraction, specific appliance
and combination of principles of complexity and system in analysis and
detailing the characteristics of categories: “the right to inviolability of a
person”; “Inviolability of persons enjoying diplomatic immunities and
privileges”; “Inviolability of property of persons enjoying diplomatic
immunities and privileges”; “Administrative, civil or criminal responsibility
of persons enjoying diplomatic immunities and privileges” extends methodology
of learning other segments of these sciences.
The Constitution of the Republic of Kazakhstan of 1995 and the country's
legislation adopted for its development contains more provisions related to
international treaties, provisions about correspondence of legal standards
adopted in Kazakhstan, the principles and rules of the international law. The
constitution serves as a general transformer, a link between the national legal
system and the system of the international law. In Sec. 1, Art. 4 of the RK Constitution
international legal norms (international treaty and other obligations) are
recognized as the current law of the Republic of Kazakhstan [1].
In the Republic of Kazakhstan the norms of the international law are
considered as priorities (paragraph 3, Article 4 of the Constitution of the
Republic of Kazakhstan) in the event of collision or lack of legislative
regulation of an issue. At the same time there is a tendency for the most
active cooperation of the country with other states, as well as approximation
of principles and rules of law to common standards adopted by the international
community that in its turn emphasizes influence of the international law on
domestic one.
For example, in March of 1992 Kazakhstan became a full member of the UNO.
The significance of this fact is invaluable: we have not only proved our adherence
to fundamental principles of the international law but also acquired protection
of the most influential international organization implementing the basic job for
providing safety on the planet. Kazakhstan got an opportunity to be involved in
world affairs and human problems, to be in line with development of modern
civilized humanity, to have access to its achievements in political, economic,
social, scientific, humanitarian and other critical areas.
Thus researching the Institute of immunities and privileges in the Republic
of Kazakhstan special attention should b paid to the international law of the
Republic of Kazakhstan in this sphere, as well as political and legal aspects.
Personal integrity is the main diplomatic immunity. Personal integrity (and
it is generally recognized in the doctrine of the international law) is the
most important immunity, other immunities and diplomatic privileges cause from
this kind of immunity. In Article 29 of
the Convention it is established: “Personality of a diplomatic agent is inviolable.
He is not subject to arrest or detention in any form. The host State shall
treat him with due respect and shall take all appropriate measures to prevent
any attack on his person, freedom or dignity”. The given article actually
indicates immunity from criminal and administrative jurisdiction of the host
State so in such a framework procedural activity on appliance of enforcement
measures shall be implemented.
With regard to the Institute of
immunities and privileges this provision is revealed most clearly in research
of actual evidence of neglect committed in relation to diplomats. If the last
attack (including murder) on diplomats were frequent thus indirectly and
primarily was the will of opposing (political) forces, such trends virtually
exhausted in the modern world. Nowadays the problem of “a cold
conflict” has been settled and many states undergoing political discrimination have
already achieved a certain level of economic and democratic development
allowing them to stand on a par with other developed countries. If diplomatic
practice includes cases of attacks on diplomats the motivation is not the act of
political upheavals but other reasons (for example, terrorist
attacks, personal interests and other similar reasons). In our opinion the
basis for these changes is democratic status of states reached a high level of
development on a global scale for today.
Parliament deputies, chairman and members of the Constitutional Council,
judges and a Public Prosecutor the General of the Republic of Kazakhstan, as
well as persons performing important public legal functions enjoy ad hoc inviolability
(immunity) along with the diplomatic staff in accordance with the Constitution.
However these immunities are not the subject of the international, constitutional,
criminal and judicial law.
Therefore providing diplomatic immunities and privileges by the rules of
law in the framework of integrity of a person, legislation of the Republic of
Kazakhstan protects not only external relations with the sending State,
international prestige of the country but also protects identity of each
individual of the diplomatic staff and his legal status is formed with personal
property and non-property rights. In relation to legal regulation of immunities
and privileges of the diplomatic staff legislation of Kazakhstan is based on
the norms of the Vienna Convention on Diplomatic Relations of 1961. Taking into
account international, political and legal status of the diplomatic staff, the
immunities from criminal and administrative jurisdiction granted by the host
State act as a guarantee of personal immunity.
In Beirut on 5 May, 1988 two French diplomats M. Fountain and M.Karton were released. Since March of 1985 they were in
detention as hostages of “Al-Ji-Had al-Islami”, an
extremist organization. In Brazil on 4 June, 1988 Ambassador of Saudi Arabia
was robbed. Criminals broke into the residence of the Ambassador, at gunpoint
they forced to open the safe and stole money and jewels worth a total of 300
thousand dollars. Brazilian President Sarney visited
the house of the ambassador “to express his sympathy” [3].
There are cases of attacks on diplomats in modern diplomatic practice. Thus
in particular, at 8.30 am on 5 December 5,
It is difficult to disagree with the cited authors because constitutional
legal status of personal inviolability is still of “subordinate” character in
relation to the rules of the international law governing special protection of the
diplomatic personnel.
The basis for expansion of immunities is understood by the author in the
fundamental approach to constitutional and legal regulation of inviolability of
habitation (Article 25 of the Constitution of the Republic of Kazakhstan).
Personal inviolability of diplomats is reached by granting them special
protection. In Kazakhstan attack on persons of the diplomatic staff is a
criminal offense. In accordance with Article 173 of the Penal Code of the
Republic of Kazakhstan attack on:
- A representative of a foreign state or an employee of an international
organization enjoying international protection or his family members, as well
as on the office or premises or vehicles of persons enjoying international
protection, as well as kidnapping or forcible confinement of individuals, as
well as threat to commit such acts, shall be punished by imprisonment for the term
of three to eight years.
The norms of criminal responsibility for attack on a representative of a
foreign state or an employee of an international organization enjoying
international protection, or his family members are in tune with the doctrine
of international legal protection of persons mentioned above. For the Republic
of Kazakhstan in this direction it is important that it is a party to the
Convention on Prevention and Punishment of Crimes against Internationally
Protected (1973).
States Parties shall cooperate in accordance with the provisions of the
Convention in obtaining and providing information concerning the crime and the
alleged perpetrators and provide other legal assistance in connection with
criminal proceedings taken in respect to crimes mentioned in the Convention
including supply of all evidences at their disposal necessary for the
proceedings.
A state where the measures of criminal procedure compulsion are
taken is required to inform immediately either directly or through the United
Nations Secretary-General, as well as other States parties.
Nowadays Kazakhstan sending its missions to foreign countries base on the
prerogatives of the primacy of the international law, soft foreign climate,
security doctrine, peace-loving policy and other principles of international
communication, adherence to which is of paramount importance in maintaining and
augmenting its position on the international arena.
However for Kazakhstan it is peculiar to increase or maintain the existing
scope of diplomatic immunities and privileges established by the international
law. However in order to protect national security, safety of citizens and
state, in some cases the legislation of the Republic is changed for restriction
of immunities (for example, in case of diplomatic baggage inspection during air
travel).
Reference:
1. Конституция Республики
Казахстан от 30 августа 1995 года (с изм. и доп. 10.03.2017 г.). - Алматы: Жети Жаргы, 2017. - с.45.
2. О судебной системе и
статусе судей Республики Казахстан. Закон Республики Казахстан от 25 декабря
2000 года №132. (с изм. и доп. от 03.07.2017)//www.zakon.kz
3. А. Борунков.
Иностранный дипломат в Москве. //www / server / ru.
4. Заявление посольства
России в Грузии в связи с грабежом министра-советника посольства России в
Тбилиси. – МИД РФ. Отдел информации и печати. Информационный бюллетень.
Министерство иностранных дел Российской Федерации. 05.12.2005 - http://www.In mid.ru.
5. Маханова
К.А. О проблеме международной защиты дипломатических агентов в законодательстве
Республики Казахстан // Материалы Межд.научно-прак.
кон. «Международные стандарты прав человека и проблем развития национального
законодательства ». Часть 2 - Алматы, 2001. с. 207-214.