The Chargé in Chile ( Engert ) to the Secretary of State

No. 962

Sir: Referring to an item mentioned on page 32 of the Embassy’s General Conditions Report No. 930–G of October 6, 1926,34 I have the honor to transmit herewith a translation of the full text of the decision of the Santiago Court of Appeals which held that a Second Secretary of the Brazilian Embassy in Santiago—and therefore by inference any other diplomatic secretary in this capital—is subject to the jurisdiction of the Chilean courts in a criminal case, and that an order for his arrest and imprisonment may be issued provided notification thereof be given to the Brazilian Ambassador.

As the diplomatic secretary in question was recalled by his Government shortly after the case began and although the decision of the Court of Appeals will consequently remain without effect as regards his person, most members of the diplomatic corps in Santiago feel very strongly that a dangerous precedent has been set which should not remain unchallenged.

For the Department’s information I am quoting below in translation Article I of the Chilean Code of Criminal Procedure:

“The Tribunals of the Republic exercise jurisdiction over Chileans and foreigners for the purpose of judging crimes committed in its territory, except in the cases provided for by the rules generally recognized in International Law”.

The Department will observe, moreover, that in paragraph (1) of the inclosed decision the exceptions made by International Law are admitted. But in paragraph (2) the Court is of the opinion that International Law recognizes diplomatic exemptions from criminal [Page 550] jurisdiction only in favor of “Ambassadors, Ministers, and Chargés d’Affaires”.

Apart from the fact that in most civilized countries no distinction is made between the chiefs of missions and the diplomatic secretaries as regards their immunity from arrest and trial by the local authorities, the decision appears to contradict itself because it will be noted that in paragraph (9) it goes so far as to say that not even an Ambassador could claim the privilege of exterritoriality if he committed a crime in Chile, as he would be subject to the jurisdiction of the special tribunal provided for in Article 15 of the Code of Criminal Procedure.

I have [etc.]

C. Van H. Engert

Decision of the Santiago Court of Appeals, September 24, 1926

1. As a general rule all persons who reside within the limits of a country, be they citizens or foreigners, are subject to the laws which that country establishes, except the exceptions recognized by international law, and in consequence it pertains to the tribunals of each nation to judge of all the acts subjected to them by its constitution or laws and to conserve the validity of the public authority by the defence and vindication of all the rights created by its laws which have been disregarded.

2. That the exceptions recognized by international law, accepted by all civilized countries, are (1) the person of a sovereign, when he enters the territory of a friendly power; (2) the diplomatic agents, understanding as such the ambassadors and diplomatic ministers and chargés d’Affaires, who represent the sovereign and government of friendly nations; (3) the warships which sail or anchor in territorial waters; (4) the armies or troops of other nations which visit or pass in transit through national territory;

. . . . . . . . . . . . . .

9. That if the Secretary Barroso were not subjected to the Chilean Tribunals for the purpose of judging the criminal acts which he may have committed, he would be in a better position than the Ambassador himself, who would have to appear because of the privilege he enjoys before the special tribunal established by Article 15 of the Code of Penal Procedure, and who would not be protected by exterritoriality for the purpose of being judged by the Brazilian courts, because it would be a question of a common crime committed on Chilean territory.

  1. Not printed.