1. Immunity from jurisdiction and from execution
The immunity from jurisdiction enjoyed by staff members of permanent missions (hereafter “PM”) is derived from the Vienna Convention on Diplomatic Relations of 18 April 1961, which applies by analogy.
The immunity from jurisdiction enjoyed by staff members of intergovernmental organizations and international institutions is derived from the headquarters agreements concluded with them by the Swiss Federal Council (hereafter “IO’s”).
The employees of the quasi-governmental international organizations and the other international bodies do not enjoy any immunity.
The Federal Department of Foreign Affairs (FDFA) delivers a legitimation card to the staff members of permanent missions, of intergovernmental organizations, of international institutions, of international quasi-governmental organizations and of other international bodies, as well as to the family members. The nature of the immunity of the beneficiary is described on the reverse side of the legitimation card.
2. Immunity by category of persons
Legitimation card of type “B” for heads of mission and for members of the senior management of IO’s: diplomatic status (immunity from jurisdiction and from execution in criminal, administrative and civil matters in the performance of their duties and for private matters).
Legitimation card of type “C” for diplomatic agents of PM’s and high ranking official of IO’s: diplomatic status (immunity from jurisdiction and from execution in criminal, administrative and civil matters in the performance of their duties and for private matters).
- Legitimation card of type “D” (blue) for technical and administrative staff members of PM’s: diplomatic status at the exception of immunity from jurisdiction and from execution in administrative and civil matters which is granted only in the performance of their duties.
- Legitimation card of type “D” (brown) for professional officials of IO’s: immunity from jurisdiction in the performance of their duties.
- Legitimation card of type “E” for service/local staff members of PM’s and general services officials of IO’s: immunity from jurisdiction in the performance of their duties.
- Legitimation card of type “F” for private household employees of staff members of PM’s/IO’s: no immunity.
- Legitimation card of type “G” for short-term staff members of IO’s and for seconded staff members of IO’s: immunity from jurisdiction in the performance of their duties.
- Legitimation card of type “H” for non-staff members of IO’s: no immunity.
- Legitimation card of type “I” for ICRC employees: immunity from jurisdiction in the performance of their duties.
- Legitimation card of type “L” for IFRC employees: immunity from jurisdiction in the performance of their duties.
- Legitimation card of type “P” for CERN scientific staff members: immunity from jurisdiction in the performance of their duties.
- Legitimation card of type “R” for the employees of quasi-governmental international organizations and other international bodies and for the Swiss locally recruited staff members of PM's: no immunity.
- Legitimation card of type “S” for Swiss staff members of the transferable career from PM’s and for Swiss staff members/employees of IO’s: immunity from jurisdiction in the performance of their duties.
3. Request for waiver of immunity (procedure)
Persons who enjoy diplomatic status are not required to appear before a Swiss court unless and until their immunity has been waived. The same applies to the notification of legal proceedings (a summons for example).
The plaintiff (who wishes to initiate legal proceedings) must request that the immunity of the defendant (against whom the proceedings are to be taken) be waived. A request for waiver of immunity, duly justified and accompanied by the relevant documents, must be sent to the Swiss Mission.
The Director or Secretary-General of the IO has the authority to waive the immunity of a staff member. The Ministry of Foreign Affairs of the Sending State has the authority to waive the immunity of a staff member of the PM.
Staff members who enjoy immunity from jurisdiction in the performance of their duties are subject to Swiss law for a private matter.
4. Initiation of criminal proceedings
Persons enjoying immunity only for their official capacity are free to initiate criminal proceedings as private individuals.
The situation is different for those who enjoy diplomatic status. Such persons may initiate criminal proceedings. The complaint must be recorded, regardless of whether the matter is brought to court on the basis of the complaint, or simply as a matter of due process. Immunity from criminal jurisdiction must not prevent those persons enjoying it from having recourse to the justice of the host State.
Once criminal proceedings have been initiated, immunity from criminal jurisdiction is an obstacle to their continuation on the part of the Office of the Attorney general (summons, hearing, etc.). The plaintiff must then submit a decision of renunciation of his/her immunity emanating from the Sending State, or in the case of a high-ranking official, from the IO. The decision of renunciation must be submitted to the Office of the Attorney general by the Swiss Mission.
It is clear that if criminal proceedings are initiated against a person who enjoys diplomatic status, the Office of the Attorney general must request the waiving of the criminal immunity of the person so that the proceedings may take place.
