DC5042
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS COMMITTAL JURISDICTION]
Comm. No  1477-1485 of 2020
BETWEEN
THE POLICE
Informant

AND
FR. JAN CZUBA
Defendant

Waigani:  S Tanei 

2021:  14th of January
             

COMMITTAL- Application to dismiss Committal proceedings – principles of Consular Immunity – Jurisdiction of Court- Defendant is not immune from criminal proceedings – Court has jurisdiction – Application dismissed. 

Cases Cited

The State –v- Tulong [1995] PNGLR 329
ACP Building Services Ltd –v- High Commission of India [2000] PGDC 1; DC66

International Cases Cited

Reddy –v- Ambassador of the Independent State of Papua New Guinea [1999] FJLawRp 41; [1999] 45 FLR 142

References

Papua New Guinea Magistrates Manual

Legislation

District Courts Act 
Diplomatic and Consular Privileges and Immunities Act 1975

Counsel
Senior Constable Peter Samghy, for the Informant 
Sasingian, E, Mr. for the Defendant
RULING ON APPLICATION
14th January 2021

S Tanei: The Defendant, through his lawyer, filed an Application on 18th December 2020 seeking to dismiss the entire Committal proceedings against the Defendant. The application is made pursuant to section 10 of the Diplomatic and Consular Privileges and Immunities Act 1975. It was moved on 23rd December 2020. 

2. This is my ruling on the application. 

FACTS: 

3. The Defendant is the current Secretary for Department of Higher Education Science Research and Technology (hereinafter referred to as DHERST). He is also the Honorary Consul of the Republic of Poland to Papua New Guinea. 

4. The Defendant, Fr. Jan Czuba was charged with One (1) Count of Official Corruption under section 87 (1) (a) (i) and (ii) and (b) of the Criminal Code Act and Eight (8) Counts of Abuse of Office under section 92 (1) of the Criminal Code Act.

5. In his application, the Defendant submits that he is the Honorary Consul of the Republic Of Poland and as such he is immune from Criminal Prosecution. Therefore, these proceedings should be dismissed in their entirety.

THE APPLICATION

6. The Defendant’s application is set out in the following terms; 

a)	The Applicant’s Committal Court Proceedings are deemed invalid pursuant to section 10 of the Diplomatic and Consular Privileges and Immunities Act 1975. 

b)	The Applicant be discharged forthwith. 

c)	The Applicant’s bail be refunded forthwith. 

d)	The Applicant’s passport be returned forthwith. 

e)	Any other orders the Court deems appropriate. 

7. The Defendant relies on his Affidavit in Support filed on 18th December 2020. The Affidavit sets out the Defendant’s background as well as his work as Honorary Consul of Poland to Papua New Guinea. 

ISSUES:

8. The Court is faced with the following issue;

a)	Whether the Defendant is immune from Criminal Prosecution and if so, whether the criminal charges against him should be dismissed?

THE LAW

9. The law governing Immunity to Diplomats and Consuls is found in the Diplomatic and Consular Privileges and Immunities Act 1975. 

10. Section 10 of the Diplomatic and Consular Privileges and Immunities Act 1975 gives legal effect to certain articles under the Vienna Convention on Consular Relations 1963 (Hereinafter referred to as “The Convention”). Some of these articles give certain immunities to Consuls and Consular officers. Section 10 (1) provides that; 

10. VIENNA CONVENTION ON CONSULAR RELATIONS TO HAVE FORCE OF LAW.

(1) Subject to this section, the provisions of Articles 1, 5, 15 and 17, paragraphs 1, 2 and 4 of Article 31, Articles 32, 33, 35 and 39, paragraphs 1 and 2 of Article 41, Articles 43 to 45 (inclusive) and 48 to 54 (inclusive), paragraphs 2 and 3 of Article 55, paragraph 2 of Article 57, paragraphs 1, 2 and 3 of Article 58, Articles 60 to 62 (inclusive), 66 and 67, paragraphs 1, 2 and 4 of Article 70, and Article 71 of the Convention have the force of law in Papua New Guinea.

11. The Vienna Convention on Consular Relations 1963 is referred to during submissions. I will deal with the relevant Articles in my ruling. 

SUBMISSIONS FROM PARTIES

12.. I commend Mr. Sasingian for ably assisting the Court with the relevant materials to which the Court relied on to come up with a ruling for his client’s application. 

13. I also commend Senior Constable Peter Samghy of Police Prosecutions for his part in assisting the Court with his submissions. 

14. Mr. Sasingian of Counsel for the Defendant began by submitting that the correct processes must be taken by Police Officers. He submitted that the Court has no jurisdiction to hear or preside over a matter if the law is not complied with. He relied on the case of The State v Tulong [1995] PNGLR 329. He also cited Chapter 11 of the Papua New Guinea Magistrates Manual relating to Committal Proceedings. 

15. Mr. Sasingian submitted that the Defendant is immune from criminal prosecution by virtue of his position as Honorary Consul of the Republic of Poland. 

16. He submits that section 10 of the Diplomatic and Consular Privileges and Immunities Act 1975 gives legal effect to the Articles of the Vienna Convention on Consular Relations 1963.

17. Mr. Sasingian submits that the Defendant is immune from criminal prosecution and as such the criminal charges laid against him are void and of no legal effect. Hence, the matters at the Committal Court against the Defendant should be dismissed. 

18. Senior Constable Peter Samghy of Police Prosecutions opposed the Defendant’s application and submitted that the Defendant is not immune from Criminal Prosecution as he is not a Career Consul but an Honorary Consul. He is also an employee of the Independent State of Papua New Guinea and is subject to the laws of Papua New Guinea. 

FINDINGS

19. The Vienna Convention on Consular Relations 1963 provide in detail how countries should appoint and manage Consuls and Consulates and the relevant privileges, immunities and duties that come with the office. 

20. A number of the Articles under the Convention have been given legal effect through section 10 of the Diplomatic and Consular Privileges and Immunities Act 1975. 

21. In order to determine whether the Defendant is immune from Criminal Prosecution we must understand what a Consul is and what he does. The Oxford Online Dictionary defines Consul as “a government official who is the representative of his or her country in a foreign city”. 

22. Paragraph 2 of Article 1 of the Vienna Convention on Consular Relations 1963 provides that;

“2.Consular officers are of two categories, namely career consular officers and honorary consular officers. The provisions of Chapter II of the present Convention apply to consular posts headed by career consular officers; the provisions of Chapter III govern consular posts headed by honorary consular officers.”

23. While the Convention provides for Career Consuls and Honorary Consuls, it does not define or differentiate between Career consuls and Honorary Consuls. 

24. Senior Constable Peter Samghy handed up a print out from website www.askanydiffference.com in his attempt to differentiate between Career Consul and Honorary Consul. I have verified this website and am satisfied that it is genuine. Here, it defines and differentiates between Career Consuls/Consulates and Honorary Consuls. In relation to career Consuls/Consulates, its states that; 

“A consulate is a diplomatic office of one country/nation which resides in another country. In the Consulate, there is a group of members/diplomats that are appointed by the foreign government of a state or territory. These diplomats are called ‘consuls’

25. This website also defines Honorary Consuls. It states that; 
“An honorary Consulate is appointed by the government of the foreign country/nation of a state. The people who are selected are commonly the residents/locals of the host nation itself, or the citizens of the foreign government and are referred to as ‘Honorary Consuls’.

The honorary consuls are not given any remuneration by the foreign government, because these representatives are not diplomats by career. They are only to work side by side with the main consul members and assist in small ways.”

26. From the Affidavit of the Defendant filed on 18th December 2020, the Defendant is the Honorary Consul of the Republic of Poland to Papua New Guinea. This means that his facilities, privileges and immunities are covered in Chapter III of the Vienna Convention on Consular Relations. 

27. The relevant Articles under Chapter III that are recognised as law in Papua New Guinea are paragraphs 1, 2 and 3 of Article 58 and Articles 60 to 62, 66, 67.

28. Article 58 provides for the facilities, privileges and immunities of Honorary Consuls. It provides that; 

1. Articles 28, 29, 30, 34, 35, 36, 37, 38 and 39, paragraph 3 of article 54 and paragraphs 2 and 3 of article 55 shall apply to consular posts headed by an honorary consular officer. In addition, the facilities, privileges and immunities of such consular posts shall be governed by articles 59, 60, 61 and 62.

2. Articles 42 and 43, paragraph 3 of article 44, articles 45 and 53 and paragraph 1 of article 55 shall apply to honorary consular officers. In addition, the facilities, privileges and immunities of such consular officers shall be governed by articles 63, 64, 65, 66 and 67.

3. Privileges and immunities provided in the present Convention shall not be accorded to members of the family of an honorary consular officer or of a consular employee employed at a consular post headed by an honorary consular officer.

29. While this Article does not give in any express term any immunity from Criminal prosecution to the Honorary Consul, Mr. Sasingian of Counsel for the Defendant submitted that the immunities in Articles 43 to 45 of the Convention apply. He submits that the Defendant is immune from the Jurisdiction of the judicial and administrative authorities of Papua New Guinea pursuant to paragraph 1 of Article 43 when he is performing consular functions. He relies on the cases of ACP Building Services Ltd –v- High Commission of India [2000] PGDC 1; DC66 and Reddy –v- Ambassador of the Independent State of Papua New Guinea [1999] FJLawRp 41; [1999] 45 FLR 142. However, after a careful reading of these cases, I discovered that they deal with diplomatic immunity and not with immunities of Consuls or Honorary Consuls and are not relevant in this matter. 

30. Mr. Sasingian submits that the offences that the Defendant was charged with relate to his work as the Polish Honorary Consul. He was performing his function as the Polish Honorary Consul to Papua New Guinea by connecting a Polish Company to Papua New Guinea. 

31. On the other hand, Prosecutor Samghy submitted that the acts that the Defendant was charged with, do not in any way, connect to his functions as an Honorary Consul. 

32. It is my finding and considered view that that the Vienna Convention does not give any immunity from criminal prosecution to the Honorary Consul. In fact, Paragraph 3 of Article 41 of the Convention provides that a Consular Officer must attend Court when he is charged with a Criminal Offence. However, Paragraph 3 of Article 41 is not given legal status in PNG and as such could not be used in this case. 

33. The Defendant’s application now trickle down to one point. That is whether the Defendant is immune from the Jurisdiction of the Courts because he was performing his consular functions. Article 5 of the Convention provides for Consular Functions. They are; 

“Consular functions consist in:

(a) protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law;

(b) furthering the development of commercial, economic, cultural and scientific relations between the sending State and the receiving State and otherwise promoting friendly relations between them in accordance with the provisions of the present Convention;

(c) ascertaining by all lawful means conditions and developments in the commercial, economic, cultural and scientific life of the receiving State, reporting thereon to the Government of the sending State and giving information to persons interested;

(d) issuing passports and travel documents to nationals of the sending State, and visas or appropriate documents to persons wishing to travel to the sending State;

(e) helping and assisting nationals, both individuals and bodies corporate, of the sending State;

(f) acting as notary and civil registrar and in capacities of a similar kind, and performing certain functions of an administrative nature, provided that there is nothing contrary thereto in the laws and regulations of the receiving State;

(g) safeguarding the interests of nationals, both individuals and bodies corporate, of the sending
States in cases of succession mortis causa in the territory of the receiving State, in accordance with the laws and regulations of the receiving State;

(h) safeguarding, within the limits imposed by the laws and regulations of the receiving State, the interests of minors and other persons lacking full capacity who are nationals of the sending State, particularly where any guardianship or trusteeship is required with respect to such persons;

(i) subject to the practices and procedures obtaining in the receiving State, representing or arranging appropriate representation for nationals of the sending State before the tribunals and other authorities of the receiving State, for the purpose of obtaining, in accordance with the laws and regulations of the receiving State, provisional measures for the preservation of the rights and interests of these nationals, where, because of absence or any other reason, such nationals are unable at the proper time to assume the defence of their rights and interests;

(j) transmitting judicial and extrajudicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending State in accordance with international agreements in force or, in the absence of such international agreements, in any other manner compatible with the laws and regulations of the receiving State;

(k) exercising rights of supervision and inspection provided for in the laws and regulations of the sending State in respect of vessels having the nationality of the sending State, and of aircraft registered in that State, and in respect of their crews;

(l) extending assistance to vessels and aircraft mentioned in subparagraph (k) of this article, and to their crews, taking statements regarding the voyage of a vessel, examining and stamping the ship’s, and, without prejudice to the powers of the authorities of the receiving State, conducting investigations into any incidents which occurred during the voyage, and settling disputes of any kind between the master, the officers and the seamen insofar as this may be authorized by the laws and regulations of the sending State;

(m) performing any other functions entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State or to which no objection is taken by the receiving State or which are referred to in the international agreements in force between the sending State and the receiving State.”

34. In order to ascertain whether the Defendant’s actions amount to consular functions, it is only proper that we look at each charge. The wordings of each charge and statement of facts would tell us if the Defendant was performing consular functions. 

35. Firstly, the Defendant was charged with one count of Official Corruption. The Charge reads that between 18th March 2017 and 18th June 2018, the Defendant being employed in the Public Service as the Acting Secretary for the Department of Higher Education, Research, Science and Technology and charged with the performance of any duty by virtue of his office corruptly procures monetary benefits for his own companies from the named department for purported services provided which amounts to conflict of interest situations. 

36. The First Charge in my view does not amount to a consular function as per the as the Defendant’s alleged actions did not meet any of the activities listed as consular functions. 

37. The Defendant’s Second Charge is Abuse of Office. There are 8 counts of abuse of office alleged against the Defendant. 

38. The First count alleges that on 7th July 2017, the Defendant, as the Acting Secretary of DHERST abused his office by authorizing payment of K 411, 400 to a company namely Alpha Networks Solutions Limited in which he is a Director and Shareholder and by doing this he has brought his office into disrepute. 

39. I find that this count does not relate to any of the Consular functions listed above. Thus, I find that the Defendant is not immune to this charge. 

40. The Second Count of the Charge of Abuse of office alleges that the Defendant while being employed by the DHERST as its Acting Secretary entered into two agreements dated 2nd of August 2017 for an on behalf of the State, namely a “License Agreement” and a “Software Management Agreement without following the Public Tender/Procurement process and in doing so committed the State and the Department to a monetary expenditure of K 1, 375, 082.64. 

41. I find that this charge relates to the Defendant’s capacity as the Acting Secretary of DHERST. It does not related to any consular function listed above. The Defendant is not immune from this charge. 

42. The Third Count of the Charge of Abuse of office alleges that on 3rd November 2017, the Defendant in his capacity as the Acting Secretary of DHERST entered into a service agreement with a Chandana Silva, whom the Defendant had personal association with as a private business partner and such action brought the office of the Secretary into disrepute. 

43. I also find that this count of the charge of Abuse of office does not fall under any of the activities listed as consular activities. Thus, the Defendant is not immune from the jurisdiction of the Courts. 

44. The Fourth count of the charge of Abuse of office alleges that on 15th March 2018, the Defendant abused his office as acting Secretary of the DHERST by authorising a payment of K 5, 726.00 from the Department to a company namely D-Lux Limited to which he is a shareholder and Director. This brought office secretary into disrepute. 

45. I also find that this charge does not relate to any of the consular activities listed above. Hence, the Defendant is not immune from criminal prosecution for this charge. 

46. The fifth count of the Charge of Abuse of Office alleges that on 22nd March 2018, the Defendant abused his office as acting secretary of the DHERST by authorising payment of K 109, 791.40 from the Department to a Company named Global Travel Centre Limited to which he is a company director and shareholder and by doing so he brought the office into disrepute. 

47. I find that this act does not fall under any of the consular activities listed above and therefore the Defendant is not immune from this charge. 

48. The sixth count of the charge of abuse of office alleges that on 1st June 2018, the Defendant, as acting Secretary of the DHERST abused his office by entering into an agreement namely a “License Agreement” between PCG Academia, a Polish Company without following the Public Tender/Procurement process and in doing so committed the State and the Department to a monetary expenditure of K 1, 658, 018.85. 

49. I find that the alleged act relates to the office of the Defendant as the acting Secretary of the DHERST and not in pursuit of his functions as the Honorary Consul of Poland. If he was doing so, he would have signed documents on behalf of Poland. However, the allegation here is that he entered into the agreement with the Polish Company PCG Academia on behalf of the DHERST and the PNG Government. Here, is not representing the interest of Poland but Papua New Guinea. Therefore, he is not immune from criminal prosecution for this charge. 

50. The seventh (7) count of the Charge of Abuse of office alleges that on 18th June 2018, the Defendant in his capacity as Acting Secretary of the DHERST abused his office by authorising a payment of K 3, 432.00 from the Department to a company named Diwai Pacific Limited to which he is a Company Director and Shareholder and in doing so brought his office into disrepute. 

51. I also find that this count does not relate to any of the consular functions listed under Article 5 of the Convention. This charge relates to an alleged payment which the Defendant authorised to be made to a company which he is a shareholder. It does not represent the interest of Poland nor does it reflect any of the functions of a consul referred to above. Therefore, the Defendant is not immune from this charge. 

52. The eighth count of the charge of Abuse of Office alleges that on 21st January 2019, the Defendant, in his capacity as the Acting Secretary of the DHERST abused his office by entering into an agreement on behalf the State with a Polish Company namely PCG Academia without following the Public Tender/Procurement process and by doing so committed the Department and the State to a monetary expenditure of over K 658, 628.86.

53. I also find that the Defendant was not in pursuit of his consular functions when he allegedly entered into the agreement with PCG Academia. If he was exercising his consular functions, he would have represented Poland. Based on the allegations, the alleged act occurred when the Defendant was in his capacity as the acting Secretary for the DHERST and represented Papua New Guinea in the alleged agreement. I find that the alleged act does not amount to a consular function under Article 5 of the Convention. Therefore the Defendant is not immune from being prosecuted for this charge. 

CONCLUSION 

54. In light of the above, I reached the following conclusions; 

a)	The Defendant, as Honorary Consul of Poland to Papua New Guinea is not immune from Criminal Prosecution. 

b)	The Defendant can be immune from Criminal Prosecution only if any of his alleged actions relate to or amount to a consular function under Article 5 of the Vienna Convention on Consular Relations 1963. However, none of the alleged actions to which the Defendant was charged with fall under any of the Consular Functions covered in Article 5 of the Convention. 

c)	Because the Defendant is not immune from Criminal Prosecution, the Committal Court has jurisdiction to administer Committal Proceedings against the Defendant. 

d)	The Defendant has been legally brought to Court. 

COURT ORDERS

55. The following are the formal orders of the Court; 

1.	The Defendant’s application filed on 18th December 2020 is dismissed in its entirety.

2.	The Committal Process against the Defendant shall proceed. 

Lawyer for the Informant  		Police Prosecutions 
Lawyer for the Defendant: 		Public Solicitor of Papua New Guinea