The Chargé in Chile ( Engert ) to the Secretary of State
[Received December 22.]
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.]
- Not printed.↩