The matter is now pending in the Court of Cassation, but the date of
hearing has not yet been set.
[Enclosure—Translation]
Judgment Rendered by the Court of Appeals of
Paris (First Chamber), January 28, 1928
Presidency of Mr. Fortin
The Court:
-
Heard, The Associate Chapsal in his
report,
- The Attorney General Reynaud in his argument,
- Maître Rosenmark for Bigelow,
- Maître de Moro-Giafferi for the civil party, in their
conclusions and pleadings.
Seen, The appeal perfected by Bigelow, which
is regularly presented at the audience by the conclusions of the
solicitor;
Considering that the accused contends that the judges of first
instance erroneously declared themselves competent for the reason on
the one hand that they incorrectly interpreted the convention of
February 23, 1853, article 2 #1 of which, conferring personal
immunity upon the American consular officers, did not permit the
legal citation of Bigelow before a French Tribunal, and that, on the
other hand, secondarily, even though there was ground to interpret
the convention of 1853 in the sense adopted in the judgment
delivered, the said Bigelow having acted in his capacity as consul
in the exercise of his functions, he could in no case, upon the
subject of the act imputed to him, be responsible to the French
tribunals and that, to decide to the contrary would be to injure the
sovereignty of a foreign government;
But considering that there is no need to stop at the principal
conclusions of Bigelow, the Government, which has the sole capacity
to interpret diplomatic conventions, having theretofore made known
its interpretation regarding the sense to be given the provisions of
the Convention of February 23, 1853, and notably as to the terms
“personal immunity”;
[Page 859]
That it results from a decision of the Court of Cassation of February 23, 1912, reported in the Criminal
Bulletin under the number of III, page 189, and authority for the
judgment delivered, that this clause, which concerns consular
officers, must be understood, not as an immunity from territorial
jurisdiction in repressive matters, but solely as an exemption from
arrest and preventive detention;
That since then, the convention of 1853 having been neither modified
or denounced, this interpretation, which is imposed on the tribunal
by virtue of the principle of the separation of powers, has even
been renewed and confirmed, as appears from a letter from the
Ministry of Foreign Affairs dated October 26, 1926, addressed to the
bailiff Olivera and produced at the arguments;
That in consequence, without deeming it necessary to determine the
other issues raised and notably that relative to pretended secret
documents, the present decision being based only upon the judgment
of Cassation of 1912 and the letter
aforesaid, all the contentions being inapplicable in these
circumstances, it suffices to declare that the judges of first
instance rightly rejected the principal conclusions of Bigelow.
Considering, as regards the secondary conclusions, that with equal
reason the trial judges did not entertain them;
That by referring to the incriminating expressions, as they appear
from the original citation, which tend to impute to the Pincess
Zizianoff that she was a spy in Russia for the Germans, that she had
even been deported on this account, and that since, under an
anti-bolshevist mask she spied upon the American patriotic societies
for the account of the Soviet Government, at whose Paris Embassy she
made a visit, one could not see in the tenor of such expressions the
accomplishment, on the part of Bigelow, of an act of government;
Considering besides, as declared by the judgment below, that the
accused under prosecution, not upon the subject of a refusal of
passport, which would be an act within his consular capacity and
would escape by consequence any review by the judicial authority,
but solely for having, in communicating that decision to
representatives of the press, delivered himself in connection with
that refusal to the above noted commentaries, which were not the
necessary and indispensable corollary;
That there is in these commentaries considered externally or included
in the functional act itself, a weighty fault having a personal
character and susceptible of doing harm to private interests; that
this fault, which detaches itself clearly from the function
fulfilled by Bigelow and demands no examination at all of the
functional act, would draw upon him, if it were established, penal
sanctions by reason of the criminal (délictueux) elements that it
appears to contain;
By these motives and those not to the contrary
of the trial judges,
[Page 860]
While declaring that there is no need to give satisfaction to the
demand for notice to Bigelow, the present decision involving only
the documents of which he has knowledge;
Confirms the judgment in question in so far as it declares the court
competent upon the prosecution instituted at the request of the
civil party;
Declares in consequence that the contentions upon appeal by Bigelow
are badly founded;
Condemns Bigelow to the costs of the proceeding.
