810.79611 T. N. T. Airlines/283
The Secretary of State to the Bolivian Minister (Finot)
Sir: I refer to the memorandum in regard to the cases of violation of the President’s Proclamation of May 28, 1934, which you left at the Department on the occasion of your call on February 7, 1936. In reply to the questions which you raise as to the propriety of the procedure of investigation followed by the authorities in charge of the prosecution of those persons and companies who were involved in these cases, I take up seriatim the features of the investigation dealt with in your memorandum.
1. I have been informed by Mr. Conboy that he has never at any time insisted that the Bolivian Consul General in New York testify in connection with these cases; that he has never demanded that the Consul General exhibit to him documents from his official files; and that he has never threatened him with prosecution or otherwise.
2. I have noted your statement that a consul cannot be properly involved in a court action as a result of acts performed in the exercise of his functions. A careful examination of the treaty provisions which would be applicable to the case under discussion leads me to [Page 245] the conclusion that should it appear that the Bolivian Consul General in New York had committed an act constituting a crime, he could be prosecuted for that act. Article 14 of the Convention in regard to consular agents, signed at Habana February 20, 1928, to which you refer, states that:
“In the absence of a special agreement between two nations, the consular agents who are nationals of the state appointing them, shall neither be arrested nor prosecuted except in the cases when they are accused of committing an act classed as a crime by local legislation.”
Article 16 of the same Convention provides in part that:
“Consuls are not subject to local jurisdiction for acts done in their official character and within the scope of their authority.”
It can hardly be seriously contended that crimes committed by consular officers could be considered as acts performed “in their official character and within the scope of their authority”.
3. I have been informed by Mr. Conboy that when the representative of the Postal Telegraph Company presented, in compliance with the subpoena duces tecum which had been served upon the Company, a collection of telegrams which had been filed with the Company by the Bolivian Consul General, he retained only three telegrams which had been sent in English, and that he immediately handed back to the representative of the Company the telegrams in code and even the telegrams in Spanish. He made no attempt to decipher the telegrams in code nor had he an opportunity to do so. The representative of the Company gave Mr. Conboy a receipt for the telegrams in code and the telegrams in Spanish, and this receipt set forth the fact that Mr. Conboy had retained no copies of those telegrams.