861.20211 Gubitchev, Valentine/3–3049

The Department of State to the Embassy of the Soviet Union


The Department of State refers to the aide-mémoire of March 30, 1949, from the Embassy of the Union of Soviet Socialist Republics concerning the arrest of Valentin A. Gubitchev and claiming diplomatic immunity for him.

Under international law and the laws of the United States, except for individuals covered by Section 15 of the Headquarters Agreement between the United States and the United Nations, an individual is not entitled to claim diplomatic status and immunities unless he is a foreign official accredited to the Government of the United States, notified to the Department of State and accepted by the Department for this purpose, or is a member of the family, staff or retinue of such official. The United States also, in appropriate circumstances, extends diplomatic privileges to foreign officials who are accredited as diplomatic officers to other governments, to international conferences, or [Page 789] who are on other diplomatic missions. Mr. Gubitchev has never been accredited to the United States Government or accepted by it, and there has been no claim that Mr. Gubitchev is entitled to diplomatic immunities by virtue of Section 15 of the Headquarters Agreement between the United States and the United Nations. Nor is he in the United States in the capacity of an accredited diplomatic officer on any diplomatic mission for which it would be appropriate to extend diplomatic privileges to Mr. Gubitchev as a matter of courtesy.

Reference is made in the Soviet aide-mémoire of March 30 to the provisions of the International Organizations Immunities Act, Public Law 291, 79th Congress. The immunity from legal process conferred by Section 7(b) of that Act on officers and employees of international organizations specifically relates only “to acts performed by them in their official capacity and falling within their functions”. The acts with which Mr. Gubitchev has been charged clearly do not come within this provision.

The Soviet aide-mémoire of March 30, in claiming that Mr. Gubitchev enjoys diplomatic immunity in the United States, relies principally on his possession of a diplomatic passport and a diplomatic visa. The possession of a diplomatic passport and visa by an alien coming to the United States has never been recognized by this Government as according, of their own force, diplomatic status and immunities. Diplomatic visas are issued pursuant to the regulations of the United States Government (22 Code of Federal Regulations, Section 60.4) to individuals in numerous categories. In some of these categories, such as that which includes certain consular officers, they are issued to individuals who definitely do not have diplomatic status and immunities in this country in order that they may receive special courtesies.

The Department of State is aware of the notation in the application for a visa by Valentin A. Gubitchev indicating that he Sought admission to the United States as a “Third Secretary of the Secretariat of the United Nations Organization”. There is, in fact, no such position or rank as “Third Secretary” on the Secretariat of the United Nations; in consequence, notations on the application and on the visa were presumably clerical errors. While Mr. Gubitchev had been offered an appointment while he was still in Moscow, he did not file his application for employment by the United Nations until after his arrival in the United States, and his application indicated that he was then serving as Third Secretary in the Ministry of Foreign Affairs of the Union of Soviet Socialist Republics. The Department of State has assumed, therefore, that when Mr. Gubitchev applied for a visa to come to the United States, he was applying as “Third Secretary, Soviet Delegation to the United Nations” or as “Third Secretary of the Ministry of Foreign Affairs of the USSR”. [Page 790] Subsequently, Mr. Gubitchev relinquished this status when he became a member of the United Nations Secretariat. His status at the time of his arrest necessarily determines the question of his right to immunity from legal process, and such privileges or immunities as he might have had prior to the change in his status in September, 1946, are not relevant.

As stated in the Department’s aide-mémoire of March 24, the United States Government cannot, in view of Mr. Gubitchev’s status since September 1946 as an official of the United Nations, recognize that he has continued to serve at the same time in the capacity of a Soviet diplomatic officer. Such a dual status would be inconsistent with Article 100 of the Charter of the United Nations; this Government, consistent with its obligations under the Charter, could not give effect to such a status. In this connection it is noted that the Secretary-General of the United Nations has not claimed immunity on behalf of Mr. Gubitchev, has, in fact, agreed that he is not entitled to immunity with regard to the acts charged, and has suspended Mr. Gubitchev pending the disposition of his case.

The Government of the Union of Soviet Socialist Republics may be assured that Mr. Gubitchev will be brought to trial without undue delay, will be accorded a fair and honest trial and will have the benefit of all the safeguards which the Constitution and the laws of the United States guarantee to persons charged with crime in the courts of the United States. If Mr. Gubitchev is acquitted he will, of course, be released. In the event that Mr. Gubitchev is found to be guilty of the crimes charged, the Government of the United States will determine whether, in the light of the developments at the trial and all the circumstances, Mr. Gubitchev should serve whatever sentence may be imposed or should be deported from the United States, in accordance with the provisions of the Headquarters Agreement between the United States and the United Nations, for abuse of his privileges of residence in this country.