March 29 (Bloomberg) -- Dominique Strauss-Kahn’s lawyers tried to convince a judge in the Bronx, New York, that diplomatic immunity shields the former International Monetary Fund head from being sued by the hotel maid who claims he attempted to rape her.
Lawyers for Strauss-Kahn, 62, said he was entitled to such protection as head of the IMF and requested New York Supreme Court Justice Douglas McKeon throw out the complaint. Attorneys for Nafissatou Diallo, 33, the maid, said Strauss-Kahn is using the argument as a delay tactic.
Amit Mehta, a lawyer for Strauss-Kahn, told the judge that the complaint must be dismissed because he was entitled to immunity when his attorneys were served with the lawsuit in early August, while prosecutors still had his travel documents. Mehta said Strauss-Kahn didn’t assert the privilege at the time of his arrest in May because he had been “falsely accused.”
“It wasn’t in his best interest to raise a defense that might seem purely procedural,” Mehta said. “It was in his interest to fight the charges.”
Strauss-Kahn wasn’t entitled to immunity when his lawyers were served with Diallo’s suit because he had already resigned his position at the IMF, Douglas Wigdor, one of Diallo’s attorneys, said in court yesterday.
‘Doesn’t Have Immunity’
“Strauss-Kahn doesn’t have immunity and Miss Diallo will have her day in court,” Wigdor said. The motion to dismiss “was filed to deny Miss Diallo a right to trial in this case and to delay these proceedings.”
Strauss-Kahn was pulled off an Air France flight at John F. Kennedy International Airport on May 14, arrested and charged with trying to rape Diallo, 33, a housekeeper at the Sofitel in midtown Manhattan. He resigned as head of the IMF four days later. Diallo sued Strauss-Kahn on Aug. 8, seeking damages for what her lawyer called “violent and deplorable acts.”
Manhattan District Attorney Cyrus Vance Jr. decided to drop the criminal charges against Strauss-Kahn after concluding that Diallo had lied about events surrounding the alleged attack. The case was dismissed on Aug. 23.
The likelihood that Strauss-Kahn’s argument will prevail is “slim to nil,” said Sarah H. Cleveland, a professor of human and constitutional rights at Columbia Law School in New York and an expert on international law.
‘Tough Row to Hoe’
“He was a managing director of the IMF and there’s this UN Convention on the Privileges and Immunities of the Specialized Agencies that would give diplomatic immunity to the head of a specialized agency, but the U.S. isn’t a party to it,” Cleveland said in a phone interview. “And so he has the challenge of proving that absolute immunity for the heads of specialized international organizations is a rule of customary international law. And that’s a tough row to hoe.”
The Convention on the Privileges and Immunities of the Specialized Agencies is a November 1947 treaty that established immunity for heads of agencies such as the IMF.
While the U.S. isn’t a party to the treaty, such immunity has become “customary international law” because of acceptance from countries that are members of the United Nations, William P. Taylor III, one of Strauss-Kahn’s attorneys, said in court documents filed in September.
“Strauss-Kahn enjoyed absolute immunity under customary international law not only while he was the head of the IMF, but also for the period of time after he had resigned from his post and was ordered to remain in the United States in his criminal matter,” Taylor wrote.
The attorney argued that “Mr. Strauss-Kahn’s absolute immunity persisted until he was able to leave the U.S., which occurred only after plaintiff had filed and served this suit, when the criminal charges against him were dismissed.”
Diallo’s lawyers have argued Strauss-Kahn isn’t entitled to immunity under the treaty.
“Not only does that argument defy logic, defendant DSK conveniently ignores the strict standards for application of customary international law entirely, attempting to simply dupe the court into finding customary international law based on merely the number of states that have ratified” the treaty, Kenneth Thompson, an attorney for Diallo, wrote in a court filing in October. “This argument misses the mark completely.”
Strauss-Kahn’s lawyers will have a difficult time proving that he was entitled to immunity since he failed to assert the defense after he was arrested, said Paul Callan, a former prosecutor in the Brooklyn District Attorney’s Office who represented Nicole Brown Simpson’s estate in a civil case against former pro football star O.J. Simpson.
A civil jury found Simpson liable for the deaths of Nicole Simpson and her friend Ron Goldman after another jury acquitted him of murder in the criminal case.
Strauss-Kahn told police he had diplomatic immunity when he was first detained at the airport in New York, and declined to assert the defense when he was interviewed by detectives later that day, Manhattan prosecutors said in a court filing in June. The IMF and the U.S. State Department said days after Strauss-Kahn’s arrest that he wasn’t entitled to diplomatic immunity.
“He failed to assert diplomatic immunity at the time of the criminal case,” Callan said in a telephone interview. “If he indeed had it and asserted it he could have returned to France immediately. Instead he did not assert it, so he’s facing an argument that he’s waived his diplomatic immunity by failing to assert it in the criminal case. I think that’s a very tough argument for him to get around.”
1961 Vienna Convention
Diplomats are generally entitled to immunity in criminal and civil proceedings while they are in their posts under another treaty, the 1961 Vienna Convention on Diplomatic Relations, to which the U.S. is a party, Cleveland said.
She said diplomats often face complaints from housekeepers or employees alleging abuse or underpayment after they depart their posts.
Diplomats have cited immunity to avoid criminal prosecution in the past for cases such as drunk-driving or assault, as well as to get out of paying parking tickets or rents on expensive apartments in New York, Callan said.
One example of the intersection of diplomatic immunity with the U.S. legal system is that of Gueorgui Makharadze, a former Republic of Georgia diplomat who cited immunity after a 1997 high-speed drunk-driving car crash in Washington that killed a 16-year-old girl. Georgia later waived immunity for Makharadze, who was convicted in the case and served more than five years in prison.
‘Not a Diplomat’
Strauss-Kahn “is not a diplomat and that treaty doesn’t cover him,” Cleveland said. “So he’s essentially trying to argue that a different treaty which we’re not a party to would give him the same kind of immunity.”
McKeon, who said on March 26 he will issue a written decision on the motion in about two to three weeks, said yesterday he will rule “expeditiously” on the request. McKeon, who has been a New York City judge since 1989, said he’s never dealt with the issue of diplomatic immunity in a civil lawsuit.
“It’s a rare issue for a trial judge to deal with,” McKeon said in a phone interview earlier this week. “There are relatively few cases out there considering the number of diplomats around the world.”
In a separate case, Strauss-Kahn was charged by three investigating judges in the northern French city of Lille with procurement in a prostitution ring. The charge stems from a probe into a prostitution ring linked to the Carlton hotel in Lille, and investigators uncovered evidence that women had been hired to travel as far as Washington to have sex with the former IMF chief.
Legal in France
Paying for sex is legal in France, while procuring prostitutes for someone else isn’t. Under the French penal code, procurement in the context of a prostitution ring can be punished by as much as 20 years in jail and a fine of 3 million euros ($4 million). Henri Leclerc, an attorney for Strauss-Kahn, said the charges are “non-existent crimes” under French law.
Kenneth Thompson, another one of Diallo’s attorneys, said the developments in France are “being watched” as the maid’s lawyers prepare for the civil case. Thompson declined to discuss a possible settlement in the lawsuit with reporters after yesterday’s hearing, saying he plans to take the case to trial.
Diallo, a single mother who lives not far from the courthouse where yesterday’s hearing was held, has been “sitting at home waiting to have her day in court,” Thompson said.
‘Still in Pain’
“She is still in pain from the incident,” Thompson said. “She is trying to put her life back together. She’s preparing to get on the stand and tell the world what happened to her.”
The decision by New York prosecutors to drop the criminal charges against Strauss-Kahn means that there is a “blank slate” for the maid’s civil case, Callan said. Dismissal of the charges by a jury or judge would have meant a “death knell” for the lawsuit, he said.
While Strauss-Kahn’s argument that he is entitled to immunity will likely fail, it’s not clear whether Diallo will be successful with her lawsuit, Callan said.
“I still think Ms. Diallo has an uphill battle even in the Bronx but she’s in a place and a venue that is generally very very friendly to plaintiffs suing rich companies and individuals,” Callan said. “I think she couldn’t be in a friendlier jurisdiction to her cause. She’s got a tough case, but she can win the case in the Bronx. And if she wins she’ll get an enormous verdict.”
The case is Diallo v. Strauss-Kahn, 11-307065, New York State Supreme Court (Bronx County).
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