Immunity - NL Host Nation
10. Immunity
10.1 Who enjoys diplomatic immunity?
Diplomatic missions
Under the provisions of the Vienna Convention on Diplomatic Relations (VCDR), the following persons enjoy at least some degree of immunity:
Under the provisions of the Vienna Convention on Diplomatic Relations, the following are inviolable:
In accordance with article 27 of the VCDR and article 35 of the Vienna Convention on Consular Relations (VCCR), the diplomatic bag is inviolable. It may not be opened or detained. Should there be serious grounds for suspecting that a diplomatic bag contains prohibited items, it may be detained, but will only be opened with the consent of the sending State.
A diplomatic bag may be exempted from X-ray screening when it is:
Consular posts
Under the provisions of the Vienna Convention on Consular Relations (VCCR), consular officers and consular employees (both career and honorary officers) enjoy immunity from jurisdiction in respect of acts performed in the exercise of their consular duties. Career officers also enjoy immunity from arrest or pre-trial detention, except in the case of a grave crime and pursuant to a decision given by the competent judicial authority.
However, consular officers may also be arrested or subjected to restrictions on their personal freedom in execution of a final and irrevocable court judgment (article 41 et seq. of the VCCR).
Under the provisions of the Vienna Convention on Consular Relations, the following are inviolable:
10.2 State immunity
In the Netherlands, diplomatic missions and consular posts are the representatives of the sending State. They are not legal persons in their own right. It is therefore against the sending State that legal proceedings must be instituted if a dispute arises concerning the actions of a diplomatic mission or consular post. However, not only diplomatic agents and consular officers but also sending States may enjoy immunity.
When does immunity apply?
Under article 22 of the VCDR, a mission’s premises are inviolable. This means that the receiving State has a duty to abstain from exercising any sovereign rights, including in respect of any official mission building and the accompanying terrain.
Even if a mission believes it is entitled to immunity, however, it should not assume that the courts will of their own accord examine the question of immunity. The mission concerned must appoint an attorney (advocaat) and make clear at the beginning of the proceedings that it is claiming immunity on behalf of its sending State. If the case comes to trial, the question is then whether the Dutch courts are competent to hear the dispute. State immunity is accepted only when the actions concerned arise directly from sovereign acts by the state. If the actions constituted private-law acts, state immunity does not apply.
No measures of constraint, such as attachment, arrest and execution, against property of the state may be taken in connection with a proceeding before a court of another state unless the state has expressly consented to the taking of such measures or has allocated the property for the satisfaction of the claim. This also applies to a mission’s bank accounts. A bank account is immune from seizure if it is used or intended for use for the purposes of the diplomatic mission of the state or its consular posts, special missions, missions to the diplomatic missions, or delegations to organs of international organisations or to international conferences.
10.3 Diplomatic agents: immunity from civil jurisdiction
Diplomatic agents enjoy immunity from civil jurisdiction. An exhaustive list of exemptions to this rule can be found in article 31 (1) of the VCDR. Members of a diplomatic agent’s household enjoy the same immunity. Administrative, technical and service staff only enjoy immunity for acts carried out in the exercise of their duties. Private servants only have immunities in so far as they are granted by the receiving State. Consular agents have only functional immunities with regard to the exemptions listed in article 45 of the VCCR.
What to do in case of a summons?
A diplomatic mission, consular post, diplomatic agent, consular officer or member of the administrative or technical staff may receive a summons (dagvaarding) in a civil case. Under article 29 of the VCDR, the person of a diplomatic agent is inviolable. Process may therefore not be served on diplomats of a sending State by authorities of the receiving State (including judges). Although the provisions of the VCCR are slightly less strict than those of the VCDR, state practice and doctrine support the view that the same conclusion must be drawn for consular officers.
However, the Ministry has no power to prevent such a lawsuit because the Dutch judiciary is independent.
If summoned to appear in a Dutch court of law, the Ministry advises the party in question to engage an attorney. Upon request, the Ministry can provide informal advice on how to deal with these matters.
Bailiffs
A bailiff (gerechtsdeurwaarder) is not entitled to serve a summons on a person who enjoys inviolability. If a bailiff arrives at a diplomatic mission or consular post or the house of a diplomatic or consular agent, they should be told to contact the Ministry of Foreign Affairs. However, summonses may arrive by registered mail and refusal may therefore be difficult.
The Ministry would like to stress that diplomatic mission and consular posts should only accept summonses directly from the Ministry of Foreign Affairs.
Witnesses
Under article 31.2 of the VCDR, a diplomatic agent is under no obligation to act as a witness.
If a consular officer or member of the administrative or technical staff is summoned to attend judicial or administrative proceedings as a witness, under article 44.1 of the VCCR they may not refuse.
10.4 Immunity from criminal jurisdiction
Under article 31 of the VCDR, members of diplomatic missions and members of their families who form part of their households enjoy immunity from criminal jurisdiction. If there are suspicions that an offence has been committed by a privileged person, the Public Prosecution Service may pursue the case. If immunity is applicable, the Prosecutor’s Office could request the Ministry of Foreign Affairs to aks for a waiver. It will then ask the Ministry of Foreign Affairs to establish whether the suspect enjoys such immunity. In the case of serious criminal offences, the Ministry of Foreign Affairs (or another authority such as the Tax and Customs Administration or the Royal Military and Border Police (KMar) can request that immunity be lifted. The Ministry may also issue a caution, via the head of the mission or directly to the person concerned. In more serious cases, the individual concerned may be asked to leave the country. Ultimately, the person involved may be declared persona non grata.
10.5 Privileged persons who come into contact with the police
Staff members who are stopped by or otherwise come into contact with the police in connection with a suspected offence should immediately identify themselves with a valid identity card issued to them by the Ministry of Foreign Affairs. Showing this card does not relieve the holder of the obligation to show other documents (e.g. driving licence, vehicle registration documents) if requested by the police. The Ministry takes offences seriously and is in close contact with both police and the public prosecutor’s services. In case any follow up is requested, the Ministry will contact the embassy.
10.6 Traffic violations
In accordance with Article 41 of the Vienna Convention on Diplomatic Relations, it is, without prejudice to their privileges and immunities, the duty of all persons enjoying diplomatic privileges and immunities to respect the laws and regulations of the receiving state. The Ministry therefore strongly suggests all staff members of diplomatic missions and International Organisations to respect the traffic laws and regulations of the Netherlands. Compliance with the traffic laws and regulations contributes to everyone’s safety. In cases of serious offences, the Public Prosecutor’s Office could request the Ministry for further assistance with regard to possible prosecution. In these cases the Ministry will be contacting the diplomatic mission in order to discusses possible steps forward. Additional action might also be the result of a large number of offenses.
Notification letters following traffic violations
Since 1 May 2019 (Note Verbale DPG-2019/185, dated 11 March 2019), privileged persons who possess a vehicle with a special registration plate receive a notification letter when a traffic offence is registered for their vehicle. This notification letter provides information about the offence and informs them about the fine that would have been payable if the offence had been committed in a vehicle without a special registration plate. Subsequently, the person to whom the vehicle is registered is invited to voluntarily pay the amount specified in the letter.
Reminder letters
As of January 2021, persons who have received a notification letter of which the due date has passed will receive up to a maximum of two reminder letters in which they are invited to voluntarily pay the indicated sum. Neither the reminder letters, nor the traffic notification letter, constitute a court order, fine or a demand for payment.
Monitoring
By means of the notification system, all traffic offences are brought to the Ministry’s attention. The Ministry closely monitors the number and severity of recorded traffic offences, as well as the amount of outstanding traffic notification letters. If necessary, the Ministry brings the matter to the attention of the diplomatic mission or International Organisation in question. Further diplomatic measures may be taken in the absence of an improvement of driving behavior. These measures could be taken after receiving such a request from the Public Prosecutor’s Office.
Registration number liability
The Netherlands applies the principle of ‘registration number liability’. This means that the owner of a vehicle is responsible – and therefore liable – for every unlawful act committed with the vehicle. This applies to vehicles registered to an individual and vehicles registered to an organisation. It is therefore not relevant who was driving the vehicle at the time of the recorded incident, unless the vehicle and the individual are stopped by the police at the scene.
Important traffic regulations
The Ministry would like to draw the attention to the fact that the daytime speed limit on motorways has been cut to 100 km/h between 6 am and 7 pm. The speed limit does not apply between 7 pm and 6 am. During these hours, the speed limit remains 100 km/h, 120 km/h or 130 km/h, as indicated on the traffic signs.
The Ministry wishes to remind all Diplomatic Missions that, in line with Article 61a of the traffic rules and traffic signs regulations, the use of a mobile device while driving is illegal. This includes any mobile electronic device that can be used for communication or information processing, such as a mobile phone, a tablet or a computer. The enforcement of this traffic rule by the competent Dutch authorities has been expanded by using special cameras with which it is automatically recorded if the driver is using a mobile device.
For the benefit of traffic safety the Ministry has enclosed a factsheet with a list of FAQs (see Annex K) about some of the most important traffic regulations. This list is not complete; it contains only a number of the most important rules and regulations. Additional information and a summary of the Dutch traffic rules can be found at: https://wetten.overheid.nl/BWBR0004825
If the authorities are unaware that a person with immunity is involved Sometimes the police and the Public Prosecution Service are not aware that the offender is a person who enjoys immunity. This is particularly likely to be the case with traffic offences, especially if the offence was committed with a vehicle without a CD, GN or BN registration plate. The offender’s address may not always indicate that they enjoy immunity either. In such cases, a summons (dagvaarding) may be issued in the routine manner and sent by post.
If the person concerned takes no action
If the person to whom a summons is addressed takes no action and fails to appear in court, either in person or represented by a lawyer, they are liable to be convicted and sentenced in absentia, in which case the judgment will be sent to the privileged person by post. If an offender convicted in this manner still fails to respond, their personal particulars will be entered on the list of wanted persons, which is widely distributed to police forces, including border control personnel. This may lead to the offender being detained by the police, and, unless the offender can produce satisfactory evidence of identity and immunity, may lead to the risk of arrest.
The Ministry urges diplomatic missions and consular posts to instruct their staff members to take the necessary action if they receive a summons, especially if they receive a notice of conviction. The diplomatic missions and consular posts concerned should forward the documents received to the Ministry without delay, accompanied by a Note Verbale, so that the Ministry can inform the Public Prosecution Service.
10.7 Consequences of driving under the influence of alcohol, drugs or medicines
Under international law, privileged persons have a duty to respect Dutch traffic laws, despite their privileges and immunities. Although the vast majority of them do so, the Ministry of Foreign Affairs wishes – given the potentially serious consequences – to clarify the relationship between driving under the influence of alcohol, drugs or certain medications and the immunities that apply.
Police traffic checks – Flagging down vehicles and the breathalyser test
The police have the right to flag down a person with diplomatic immunity and ask for identification. Persons with immunity must show the police the identity card issued by the Ministry of Foreign Affairs and, if asked to do so, hand it over for verification. The card must be returned to the privileged person once the police have verified their identity.
The police may decide, based on their observations, whether there are reasonable grounds for assuming that a privileged person is driving under the influence of alcohol, drugs or certain medicines. They may request the privileged person to submit voluntarily to a breathalyser test. (The breathalyser test shows whether a motorist has exceeded the statutory limit – currently a blood alcohol level of 0.05% or 220 micrograms per litre of exhaled air.)
Arrest, breath tests, blood tests and urine tests
A privileged person who enjoys immunity from criminal jurisdiction may not be arrested or compelled by the police to take a breath, blood or urine test. However, the Ministry would request privileged persons to respect Dutch law and to cooperate with the competent national authorities in the interest of road safety.
Driving under influence, causing damage or injury
If a privileged person has caused serious injury to a third party while under the influence of alcohol, drugs or certain medicines, the Dutch authorities may, if necessary, request the sending State to waive the immunity of a privileged person so that criminal proceedings can be instituted and any sentence passed can be enforced. Failing such cooperation, the sending State may be requested to recall the person concerned.
Driving bans and the confiscation of car keys
If the police have reasonable grounds to assume that a person with diplomatic immunity is unfit to drive due to the influence of alcohol, drugs or certain medicines, they may take steps to ensure that the driver does not endanger themselves or others. In such cases, in accordance with international practice, the police may temporarily confiscate a driver’s car keys and will help the driver to organise alternative transport. In addition, the police may decide to have the car taken to a safe location in the interests of public safety and to protect the car. The police may not confiscate the Ministry of Foreign Affairs identity card, passport or driving licence of a privileged person who has immunity.
The police will draw up an official report if they discover that a person with immunity has been driving under the influence of alcohol, drugs or medicines. They will also notify the Public Prosecutor’s Office and the Protocol Department of the Ministry of Foreign Affairs, after which appropriate measures could be taken. This could include a request to waive immunity in order to allow the Prosecutor’s Office to proceed. In case such a waiver is being denied, the Ministry could take appropriate measures; this could entail a first warning or, in case of a second or serious offence, the request to leave the country.
< back to protocolguide
Diplomatic missions
Under the provisions of the Vienna Convention on Diplomatic Relations (VCDR), the following persons enjoy at least some degree of immunity:
- diplomatic agents and members of their families forming part of their households if they are not nationals of the receiving State, (articles 29 and 37 of the VCDR);
- members of the administrative and technical staff and members of their families forming part of their households if they are not nationals of the receiving State, (article 37 of the VCDR);
- members of the service staff in respect of acts performed in the course of their duties if they are not nationals of the receiving State,(article 37 of the VCDR).
Under the provisions of the Vienna Convention on Diplomatic Relations, the following are inviolable:
- the mission’s premises (article 22 of the VCDR);
- its archives and documents (article 24 of the VCDR);
- its official correspondence (article 27 of the VCDR);
- the diplomatic courier (article 27 of the VCDR);
- the diplomatic bag (article 27 of the VCDR);
- the persons of diplomatic agents, members of the administrative and technical staff of missions, and members of their families forming part of their households (articles 29 and 37 of the VCDR);
- the private residences of diplomatic agents and of members of the administrative and technical staff of missions, their papers, correspondence and property (article 30 of the VCDR);
- diplomatic agents and members of their family passing through the Netherlands provided the agents are travelling to take up a posting or returning from a posting (article 40 of the VCDR).
In accordance with article 27 of the VCDR and article 35 of the Vienna Convention on Consular Relations (VCCR), the diplomatic bag is inviolable. It may not be opened or detained. Should there be serious grounds for suspecting that a diplomatic bag contains prohibited items, it may be detained, but will only be opened with the consent of the sending State.
A diplomatic bag may be exempted from X-ray screening when it is:
- identifiable as a diplomatic bag; and
- accompanied at all times, including in the cabin of the aircraft during the flight, by a diplomatic courier, or a diplomatic agent in the possession of an identity card issued by the Ministry of Foreign Affairs of the Netherlands.
Consular posts
Under the provisions of the Vienna Convention on Consular Relations (VCCR), consular officers and consular employees (both career and honorary officers) enjoy immunity from jurisdiction in respect of acts performed in the exercise of their consular duties. Career officers also enjoy immunity from arrest or pre-trial detention, except in the case of a grave crime and pursuant to a decision given by the competent judicial authority.
However, consular officers may also be arrested or subjected to restrictions on their personal freedom in execution of a final and irrevocable court judgment (article 41 et seq. of the VCCR).
Under the provisions of the Vienna Convention on Consular Relations, the following are inviolable:
- the consular premises (article 31 of the VCCR);
- the consular archives (article 33 of the VCCR);
- the official correspondence of the post (article 35 of the VCCR);
- the consular courier (article 35 of the VCCR);
- consular officers, to a limited extent (article 41 in conjunction with article 43 of the VCCR);
- consular officers who are nationals of or permanently resident in the receiving State only enjoy immunity from jurisdiction and personal inviolability in respect of official acts performed in the exercise of their duties (article 71 of the VCCR).
10.2 State immunity
In the Netherlands, diplomatic missions and consular posts are the representatives of the sending State. They are not legal persons in their own right. It is therefore against the sending State that legal proceedings must be instituted if a dispute arises concerning the actions of a diplomatic mission or consular post. However, not only diplomatic agents and consular officers but also sending States may enjoy immunity.
When does immunity apply?
Under article 22 of the VCDR, a mission’s premises are inviolable. This means that the receiving State has a duty to abstain from exercising any sovereign rights, including in respect of any official mission building and the accompanying terrain.
Even if a mission believes it is entitled to immunity, however, it should not assume that the courts will of their own accord examine the question of immunity. The mission concerned must appoint an attorney (advocaat) and make clear at the beginning of the proceedings that it is claiming immunity on behalf of its sending State. If the case comes to trial, the question is then whether the Dutch courts are competent to hear the dispute. State immunity is accepted only when the actions concerned arise directly from sovereign acts by the state. If the actions constituted private-law acts, state immunity does not apply.
No measures of constraint, such as attachment, arrest and execution, against property of the state may be taken in connection with a proceeding before a court of another state unless the state has expressly consented to the taking of such measures or has allocated the property for the satisfaction of the claim. This also applies to a mission’s bank accounts. A bank account is immune from seizure if it is used or intended for use for the purposes of the diplomatic mission of the state or its consular posts, special missions, missions to the diplomatic missions, or delegations to organs of international organisations or to international conferences.
10.3 Diplomatic agents: immunity from civil jurisdiction
Diplomatic agents enjoy immunity from civil jurisdiction. An exhaustive list of exemptions to this rule can be found in article 31 (1) of the VCDR. Members of a diplomatic agent’s household enjoy the same immunity. Administrative, technical and service staff only enjoy immunity for acts carried out in the exercise of their duties. Private servants only have immunities in so far as they are granted by the receiving State. Consular agents have only functional immunities with regard to the exemptions listed in article 45 of the VCCR.
What to do in case of a summons?
A diplomatic mission, consular post, diplomatic agent, consular officer or member of the administrative or technical staff may receive a summons (dagvaarding) in a civil case. Under article 29 of the VCDR, the person of a diplomatic agent is inviolable. Process may therefore not be served on diplomats of a sending State by authorities of the receiving State (including judges). Although the provisions of the VCCR are slightly less strict than those of the VCDR, state practice and doctrine support the view that the same conclusion must be drawn for consular officers.
However, the Ministry has no power to prevent such a lawsuit because the Dutch judiciary is independent.
If summoned to appear in a Dutch court of law, the Ministry advises the party in question to engage an attorney. Upon request, the Ministry can provide informal advice on how to deal with these matters.
Bailiffs
A bailiff (gerechtsdeurwaarder) is not entitled to serve a summons on a person who enjoys inviolability. If a bailiff arrives at a diplomatic mission or consular post or the house of a diplomatic or consular agent, they should be told to contact the Ministry of Foreign Affairs. However, summonses may arrive by registered mail and refusal may therefore be difficult.
The Ministry would like to stress that diplomatic mission and consular posts should only accept summonses directly from the Ministry of Foreign Affairs.
Witnesses
Under article 31.2 of the VCDR, a diplomatic agent is under no obligation to act as a witness.
If a consular officer or member of the administrative or technical staff is summoned to attend judicial or administrative proceedings as a witness, under article 44.1 of the VCCR they may not refuse.
10.4 Immunity from criminal jurisdiction
Under article 31 of the VCDR, members of diplomatic missions and members of their families who form part of their households enjoy immunity from criminal jurisdiction. If there are suspicions that an offence has been committed by a privileged person, the Public Prosecution Service may pursue the case. If immunity is applicable, the Prosecutor’s Office could request the Ministry of Foreign Affairs to aks for a waiver. It will then ask the Ministry of Foreign Affairs to establish whether the suspect enjoys such immunity. In the case of serious criminal offences, the Ministry of Foreign Affairs (or another authority such as the Tax and Customs Administration or the Royal Military and Border Police (KMar) can request that immunity be lifted. The Ministry may also issue a caution, via the head of the mission or directly to the person concerned. In more serious cases, the individual concerned may be asked to leave the country. Ultimately, the person involved may be declared persona non grata.
10.5 Privileged persons who come into contact with the police
Staff members who are stopped by or otherwise come into contact with the police in connection with a suspected offence should immediately identify themselves with a valid identity card issued to them by the Ministry of Foreign Affairs. Showing this card does not relieve the holder of the obligation to show other documents (e.g. driving licence, vehicle registration documents) if requested by the police. The Ministry takes offences seriously and is in close contact with both police and the public prosecutor’s services. In case any follow up is requested, the Ministry will contact the embassy.
10.6 Traffic violations
In accordance with Article 41 of the Vienna Convention on Diplomatic Relations, it is, without prejudice to their privileges and immunities, the duty of all persons enjoying diplomatic privileges and immunities to respect the laws and regulations of the receiving state. The Ministry therefore strongly suggests all staff members of diplomatic missions and International Organisations to respect the traffic laws and regulations of the Netherlands. Compliance with the traffic laws and regulations contributes to everyone’s safety. In cases of serious offences, the Public Prosecutor’s Office could request the Ministry for further assistance with regard to possible prosecution. In these cases the Ministry will be contacting the diplomatic mission in order to discusses possible steps forward. Additional action might also be the result of a large number of offenses.
Notification letters following traffic violations
Since 1 May 2019 (Note Verbale DPG-2019/185, dated 11 March 2019), privileged persons who possess a vehicle with a special registration plate receive a notification letter when a traffic offence is registered for their vehicle. This notification letter provides information about the offence and informs them about the fine that would have been payable if the offence had been committed in a vehicle without a special registration plate. Subsequently, the person to whom the vehicle is registered is invited to voluntarily pay the amount specified in the letter.
Reminder letters
As of January 2021, persons who have received a notification letter of which the due date has passed will receive up to a maximum of two reminder letters in which they are invited to voluntarily pay the indicated sum. Neither the reminder letters, nor the traffic notification letter, constitute a court order, fine or a demand for payment.
Monitoring
By means of the notification system, all traffic offences are brought to the Ministry’s attention. The Ministry closely monitors the number and severity of recorded traffic offences, as well as the amount of outstanding traffic notification letters. If necessary, the Ministry brings the matter to the attention of the diplomatic mission or International Organisation in question. Further diplomatic measures may be taken in the absence of an improvement of driving behavior. These measures could be taken after receiving such a request from the Public Prosecutor’s Office.
Registration number liability
The Netherlands applies the principle of ‘registration number liability’. This means that the owner of a vehicle is responsible – and therefore liable – for every unlawful act committed with the vehicle. This applies to vehicles registered to an individual and vehicles registered to an organisation. It is therefore not relevant who was driving the vehicle at the time of the recorded incident, unless the vehicle and the individual are stopped by the police at the scene.
Important traffic regulations
The Ministry would like to draw the attention to the fact that the daytime speed limit on motorways has been cut to 100 km/h between 6 am and 7 pm. The speed limit does not apply between 7 pm and 6 am. During these hours, the speed limit remains 100 km/h, 120 km/h or 130 km/h, as indicated on the traffic signs.
The Ministry wishes to remind all Diplomatic Missions that, in line with Article 61a of the traffic rules and traffic signs regulations, the use of a mobile device while driving is illegal. This includes any mobile electronic device that can be used for communication or information processing, such as a mobile phone, a tablet or a computer. The enforcement of this traffic rule by the competent Dutch authorities has been expanded by using special cameras with which it is automatically recorded if the driver is using a mobile device.
For the benefit of traffic safety the Ministry has enclosed a factsheet with a list of FAQs (see Annex K) about some of the most important traffic regulations. This list is not complete; it contains only a number of the most important rules and regulations. Additional information and a summary of the Dutch traffic rules can be found at: https://wetten.overheid.nl/BWBR0004825
If the authorities are unaware that a person with immunity is involved Sometimes the police and the Public Prosecution Service are not aware that the offender is a person who enjoys immunity. This is particularly likely to be the case with traffic offences, especially if the offence was committed with a vehicle without a CD, GN or BN registration plate. The offender’s address may not always indicate that they enjoy immunity either. In such cases, a summons (dagvaarding) may be issued in the routine manner and sent by post.
If the person concerned takes no action
If the person to whom a summons is addressed takes no action and fails to appear in court, either in person or represented by a lawyer, they are liable to be convicted and sentenced in absentia, in which case the judgment will be sent to the privileged person by post. If an offender convicted in this manner still fails to respond, their personal particulars will be entered on the list of wanted persons, which is widely distributed to police forces, including border control personnel. This may lead to the offender being detained by the police, and, unless the offender can produce satisfactory evidence of identity and immunity, may lead to the risk of arrest.
The Ministry urges diplomatic missions and consular posts to instruct their staff members to take the necessary action if they receive a summons, especially if they receive a notice of conviction. The diplomatic missions and consular posts concerned should forward the documents received to the Ministry without delay, accompanied by a Note Verbale, so that the Ministry can inform the Public Prosecution Service.
10.7 Consequences of driving under the influence of alcohol, drugs or medicines
Under international law, privileged persons have a duty to respect Dutch traffic laws, despite their privileges and immunities. Although the vast majority of them do so, the Ministry of Foreign Affairs wishes – given the potentially serious consequences – to clarify the relationship between driving under the influence of alcohol, drugs or certain medications and the immunities that apply.
Police traffic checks – Flagging down vehicles and the breathalyser test
The police have the right to flag down a person with diplomatic immunity and ask for identification. Persons with immunity must show the police the identity card issued by the Ministry of Foreign Affairs and, if asked to do so, hand it over for verification. The card must be returned to the privileged person once the police have verified their identity.
The police may decide, based on their observations, whether there are reasonable grounds for assuming that a privileged person is driving under the influence of alcohol, drugs or certain medicines. They may request the privileged person to submit voluntarily to a breathalyser test. (The breathalyser test shows whether a motorist has exceeded the statutory limit – currently a blood alcohol level of 0.05% or 220 micrograms per litre of exhaled air.)
Arrest, breath tests, blood tests and urine tests
A privileged person who enjoys immunity from criminal jurisdiction may not be arrested or compelled by the police to take a breath, blood or urine test. However, the Ministry would request privileged persons to respect Dutch law and to cooperate with the competent national authorities in the interest of road safety.
Driving under influence, causing damage or injury
If a privileged person has caused serious injury to a third party while under the influence of alcohol, drugs or certain medicines, the Dutch authorities may, if necessary, request the sending State to waive the immunity of a privileged person so that criminal proceedings can be instituted and any sentence passed can be enforced. Failing such cooperation, the sending State may be requested to recall the person concerned.
Driving bans and the confiscation of car keys
If the police have reasonable grounds to assume that a person with diplomatic immunity is unfit to drive due to the influence of alcohol, drugs or certain medicines, they may take steps to ensure that the driver does not endanger themselves or others. In such cases, in accordance with international practice, the police may temporarily confiscate a driver’s car keys and will help the driver to organise alternative transport. In addition, the police may decide to have the car taken to a safe location in the interests of public safety and to protect the car. The police may not confiscate the Ministry of Foreign Affairs identity card, passport or driving licence of a privileged person who has immunity.
The police will draw up an official report if they discover that a person with immunity has been driving under the influence of alcohol, drugs or medicines. They will also notify the Public Prosecutor’s Office and the Protocol Department of the Ministry of Foreign Affairs, after which appropriate measures could be taken. This could include a request to waive immunity in order to allow the Prosecutor’s Office to proceed. In case such a waiver is being denied, the Ministry could take appropriate measures; this could entail a first warning or, in case of a second or serious offence, the request to leave the country.
< back to protocolguide