Indian diplomat Devyani Khobragade has sought dismissal of the visa fraud case against her on the ground that the indictment was filed in a court here a day after the US accorded her full diplomatic immunity and the country did not have criminal jurisdiction over her. Khobragade’s lawyer Daniel Arshack submitted her reply, in a federal court here, to Manhattan federal prosecutor Preet Bharara’s memorandum that had opposed her motion to dismiss the indictment.
Khobragade was present in the US at the time the indictment was returned and “the State Department’s recognition of her diplomatic position with the Permanent Mission of India to the United Nations conferred diplomatic immunity upon her requiring that the entire ‘proceeding or action’ be dismissed,” Arshack said in his 17-page motion filed late on Friday. “The instant indictment was returned and filed with the Court prior to Khobragade’s departure (from the US) when she was still recognised as a diplomat and still imbued with diplomatic immunity. The prosecution could not then and cannot now proceed further on that invalid instrument,” Arshack said.
He, however, acknowledged that the prosecution is not prevented from prosecuting Khobragade in future, but insisted that the current case against her be dismissed since she had diplomatic immunity when the indictment was filed. Arshack’s motion comes a week after Bharara submitted a US State Department declaration that Khobragade did not enjoy immunity from arrest or detention at the time of her arrest and she does not presently enjoy immunity from prosecution for the crimes charged in the indictment. Arshack said the indictment must be dismissed because the immunity bestowed upon Khobragade “applied retroactively”. The court could now order to hear arguments on the motions.
Khobragade, 39, was arrested on December 12 on visa fraud charges, strip-searched and held with criminals, triggering a row between the India and US. India retaliated by downgrading privileges of certain category of US diplomats among other steps.
Arshack said the “pertinent” facts in the case are that Khobragade was given full diplomatic status by the Department of State at 5:47 pm (local time) on January 8 when it approved her appointment as Counsellor to the Permanent Mission of India to the UN. The grand jury returned the indictment on January 9 “after she was already cloaked with diplomatic immunity”. “It is acknowledged that the prosecution is not forever precluded from prosecuting the defendant. Our application is only that this proceeding must be dismissed. The prosecution is clearly legally able to seek a new indictment at this time or at some point in the future now that Khobragade no longer possesses such diplomatic status and immunity, but it may not proceed further with this case,” Arshack said.
In accordance with the Vienna Convention on Diplomatic Relations, he argued that the case should have been dismissed on January 9, because Khobragade did not become a “former” diplomat until later that evening when she left the country. “The proceeding must be dismissed for lack of jurisdiction because at the time the indictment was issued, the US did not have criminal jurisdiction over Khobragade,” he said.
Arshack rebutted Bharara’s allegation that Khobragade had employed her domestic worker in her personal capacity and not as India’s Deputy Consul General in New York, which made her not immune to criminal prosecution. “The prosecution goes to great lengths in its opposition to make inapposite distinctions between the immunity conferred upon consular officials versus diplomats under the respective Vienna Conventions as the ostensible basis to deny the requested relief. Such distinctions are a clear effort to obfuscate, are irrelevant and do not assist the Court in resolving this matter,” Arshack argued.
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