Marcos v Federal Department of Police

Date02 novembre 1989
CourtFederal Supreme Court (Switzerland)
Switzerland, Federal Tribunal.
Marcos and Marcos
Federal Department of Police

State immunity — Head of State — Scope of immunity from criminal jurisdiction — Whether absolute — Whether differing from scope of immunity from civil jurisdiction — Waiver — Conditions — Rules of customary international law — Vienna Convention on Diplomatic Relations, 1961, Article 32 — Application to head of State by analogy

State immunity — Head of State — Former head of State — Whether entitled to immunity from the criminal jurisdiction of courts in other States — Whether immunity subsisting in relation to acts performed in exercise of functions — Rules of customary international law — Vienna Convention on Diplomatic Relations, 1961, Article 39 — Application to head of State by analogy — The law of Switzerland

Summary: The facts:—The United States authorities instituted proceedings against Ferdinand Marcos, former President of the Philippines, and his wife Imelda, who had been a Minister in the Philippine Government. They were accused of having abused their positions to acquire for themselves public funds and works of art. In 1988 a request for mutual legal assistance was sent by the United States authorities to their Swiss counterparts seeking, in particular, to obtain banking and other documents in order to clarify the nature of certain transactions which were the subject of investigation. Marcos and his wife objected to the request, arguing that the United States authorities had no jurisdiction to institute proceedings against them. Their objection was rejected and they lodged an administrative law appeal before the Federal Tribunal.

Held:—The appeal was dismissed.

(1) In an earlier judgment of 1 July 19871 also concerning former President Marcos, the Federal Tribunal had held that the immunity from execution enjoyed by a Head of State could not be relied upon once he was no longer in office since that immunity was a privilege granted in the interests of that State and could not be invoked for personal reasons against the interests of the State concerned (pp. 200–1).

(2) Under customary international law, heads of State and their families enjoyed absolute immunity from criminal jurisdiction which, by contrast with immunity from civil jurisdiction, was not restricted to acts performed jure imperii. It appeared that immunity from criminal jurisdiction covered all the private activities of Heads of State. Whilst this immunity of Heads of State had not been codified in the Vienna Convention on Diplomatic Relations, 1961, which applied only to heads of missions and other diplomatic staff,

there was no evidence from other treaties concluded under the auspices of the United Nations of any intent to grant lesser protection to foreign Heads of State than to diplomatic representatives. Accordingly, Articles 32 and 39 of the Vienna Convention were applicable by analogy to Heads of State, limiting their immunity to the period for which the sending State was prepared to grant it (possibility of express waiver) and to the duration of their functions (acts performed in the exercise of official functions, however, continued to be covered by immunity) (pp. 201–3).

(3) The immunity in relation to their functions enjoyed by the appellants therefore subsisted for those criminal acts allegedly committed while they were still exercising their powers in the Philippines. Accordingly, the proceedings in the United States courts could only be pursued because the State of the Philippines had expressly waived the immunity of Mr and Mrs Marcos. The Federal Tribunal had therefore enquired into the position and ascertained from the Swiss authorities that the Philippine Foreign Ministry had written a note verbale to the United States Embassy in Manila in October 1988, stating that the Philippine Government waived all State and diplomatic immunity, as well as the immunity of Head of State, which former President Marcos and his wife might enjoy or have enjoyed under American or international law. The note verbale also stated that the Philippine Government considered that the appellants should not be able to benefit from the doctrine of act of State in the United States. This declaration, emanating from one of the organs of the Philippine Government, was decisive. It was not the task of the Federal Tribunal to resolve questions of the procedural correctness of the waiver from the standpoint of Philippine law or the scope which it...

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