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Tuesday, 31 July 2018 09:15

The "TS" establishes a precedent in the faculties and legitimations of diplomatic missions

The Board of Administrative Complaints of the Supreme Court (hereinafter "TS"), on July 9 of the present, in its ruling "1166/2018," has spoken out in favor of granting legitimacy and authority to an Ambassador, as a representative of a state, for the purpose of carrying out a judicial action before the courts of the receiving State, without having to have a decision of the competent authority of the nation that represents. In concrete case, resort to the extradition of a citizen of the country that the diplomat represents.


For purposes, it is important to mention Article 3.1 of the Vienna Convention, which came into force in 1964, which reads as follows: "The functions of a diplomatic mission consist mainly of:

a) Represent the State "crediting" to the receiving State;

b) To protect the receiving State from the interests of the "crediting" State and those of its nationals, within the limits allowed by international law ... "

Now, by entering directly into the case that it is incumbent upon us, the TS broadly recognizes the aforementioned faculty to file a contentious administrative appeal against the "Council of Ministers Agreement of October 13, 2017" to the Turkish ambassador In Spanish territory Ömer Önhon, which rejected the extradition of the Turkish-German citizen, Erdogan Akhnli, who was being claimed by the government of Turkey years ago.

In this regard, the Council of Ministers consolidated its refusal of extradition on the grounds that the German country, at the time, attributed the status of "refugee" in the year 1993, for later "shielding" politically granting -the German nationality, at the same time as the competent authorities of Turkey withdrew her.

When the appeal referred to in previous paragraphs is dismissed, the controversial issue for the Board of the TS prior to the substantive analysis of the matter, starts from whether it is really an Ambassador as the head of the diplomatic and legal representative of the country that previously certified it, it has the full legitimacy of interposing, in this case, the formulation of a "resource" to the receiving State or, on the contrary, requires prior authorization from the competent authority of the country that represents, for the intended purposes.

For its part, the defense lawyer of the State, pronounces in the opposite direction to the admission of the resource to expose in its analysis that the Turkish Ambassador, did not have total active legitimacy for the judicial actions that They were tried by the government of that country, separating from the "power of representation", which solely accredits and denies that the representative can act on behalf of and on behalf of the represented, in general terms. The previous one, since it was considered that not being the diplomat subject to the extradition process as such and, having not found a valid record that had participated actively or intervened in the proceeding against Erdogan Akhnli, before of the Ministry of Justice or before the National Hearing, it was impossible for the "litigation".

As a result of the preceding article, mentioning the preceding article of the Vienna Convention, which derives from the controversy over extradition, it is worth noting the legal interpretation carried out by Sala del TS, which also asserted the function jurisdiction that holds the Supreme Body.

The TS ruled, that a lot, although in the articles of the Vienna Convention, it is not mentioned in any way whatsoever that an ambassador may, in case, assert a judicial action against a government agreement of the State where the diplomatic mission (Agreement of the Council of Ministers) exerts, the term "to represent", in the broadest sense, allows that an ambassador, like permanent representative to the receiving State where exerts the diplomatic mission; It is legitimized to file and / or properly formulate an action of a judicial nature (resource), coupled with the fact that the term "protect" for its part, it would be virtually impossible to understand without the aforementioned faculty, including what is anticipated Article 25 of the Convention itself, where it is foreseen that the receiving State will grant all facilities for the right to proceed from the functions of the diplomatic mission.

However, the Chamber resolves that the aforementioned Contentious-Administrative Resource does not hurt or distract the motives agreed at the time by the Council of Ministers in order to deny the continuity of the extradition procedure. Stating that both the "refugee" status, granted in 1993, as well as the nationality acquired by the subject to whom it is intended to be extradited, by the German country, are currently liable to be denied, as it is interpreted as enhanced protection by part of the German government, giving rise to the fact that the ST can admit the appeal, since the contested resolution has its legal base in article 4.8 of Law 4/1985, of March 21, on passive extradition. Same as a supposition to deny extradition, the recognition of the individual claimed by his asylum, added to the German nationality, which is interpreted as a forced protection.

In view of this, it was concluded that the condition of asylum is a supposition to legally deny extradition, as mentioned above, besides the citizen of Turkish-German origin, he left the Spanish territory the same day that his freedom was decreed, under any precautionary measure attributable to his person. Not to forget for the purpose, that Turkey is a member of the Council of Europe and is subscribed to the European Convention on Human Rights, which is why it is binding that stipulates Law 4/1985 of March 21, cited, to be Spain, the receiving State where the diplomat lodged the appeal.

Writings SF Lawyers