701.05/138
The Secretary of State to the Minister in Switzerland ( Wilson )
Sir: The Department has received the Legation’s despatch No. 1232 of June 10, 1927, in which it is reported that a clerk in the employ of the Legation has violated a local ordinance involving a fine of twenty francs by committing a trespass upon certain property and that notwithstanding the fact that the owner of the property affected was not disposed to press any charge against the clerk, a police officer called at the residence of the clerk and demanded that he pay a fine of twenty francs with an additional cost of five francs. It appears from your despatch that the Swiss authorities hold that a clerk in the employ of a diplomatic mission is not exempt from the local police jurisdiction.
The Department assumes that you have reference to one of the American clerks employed by the Legation and not the Swiss clerk who is a member of the Legation suite. Under the generally accepted principles of international law, the immunities to which a Chief of Mission is entitled are shared by his retinue or suite which includes clerks employed by the diplomatic mission. In view of this principle under which a member of the suite enjoys immunity from the local civil and criminal jurisdiction, the Department does not understand the attitude of the Swiss authorities in apparently holding that the clerk in question is subject to the local police jurisdiction. It is regretted, therefore, that instead of making a demand directly upon the clerk the Swiss authorities did not take up the matter through your Legation.
It is requested that you recall this case to the attention of the Swiss authorities and that you lay especial emphasis upon the fact that not only were apologies for the trespass given on behalf of the Legation, but that the individual upon whose property the trespass occurred had no desire to press the case against the clerk of the Legation. In the circumstances you should express the hope that the charges against the clerk will be dropped. In bringing the matter to the attention of the Foreign Office you may, in referring to the practice of this Government in according immunity to members of the diplomatic mission and the members of their suite, refer to Section 4063 of the revised Statutes of the United States making void any writ or process sued out or prosecuted whereby the person of any public minister of any foreign state or any domestic servant of such minister is arrested or imprisoned; and to Section 4064 of the Revised Statutes providing for the imposition of a penalty upon any one responsible for the issuance of any writ or process described in Section [Page 763] 4063. In this relation, you may point out that it is the practice of this Government to regard as included within the protection of these Statutes clerks employed in foreign missions at this capital.
In view of the fact that the Swiss Government has specifically contended that employes of your mission who are of Swiss nationality are not entitled to exemption from the local jurisdiction, the Department regrets that you did not indicate specifically whether or not you were referring to a clerk of American nationality. However, as of possible interest to the Legation in connection with the principles involved in cases where employes of Swiss nationality are concerned, your attention is invited to the Department’s instruction No. 523 of October 2, 1926, which deals in some detail with the question involved in the imposition of a fine by the Swiss authorities on a chauffeur, employed by Minister Gibson, who was understood to be a Swiss national. The case was discussed in Minister Gibson’s despatch No. 954 of August 7, 1926,9 in which the Minister reported that while returning from Berne to Geneva by motor his car was stopped in the streets of the village of Domdidier by a gendarme who took note of the car and the name and address of the chauffeur. Your attention is also invited to an instruction which the Department addressed to the American Chargé d’Affaires at Budapest under date of November 13, 1925, in reply to a request from the Legation to be informed whether the Department had ever issued any instructions to American diplomatic missions on the subject of diplomatic immunities as applied to servants and other employes of foreign missions. A copy of the Department’s instruction of November 13, 1925, is herewith enclosed for your information.10
With respect to the specific case of the clerk referred to in your despatch under acknowledgment, the Department suggests that in view of the small amount involved it may be advisable for you to authorize the clerk to pay the fine under protest with the reservation that this Government does not recognize the right of the Swiss authorities to deny immunity in this case. However, you should not take this course unless you find that the case will be protracted as a result of a determination on the part of the Swiss authorities to refuse to drop the charges against the clerk as requested by your Legation.
The Department notes the statement in your despatch that in general the tendency of the Swiss Government is to restrict the courtesies and privileges accorded to diplomatic officers to a minimum as well as your suggestion that the Department might wish to consider [Page 764] whether in negotiating a treaty of commerce and amity with Switzerland it would not be well to include an article defining the immunities and privileges to be accorded on a reciprocal basis to diplomatic officers and legation personnel of the contracting parties. Your suggestion in this connection will be kept in mind for possible future consideration.
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