KHOSROW MINUCHER VS.

HON. COURT OF APPEALS,

ARTHUR W. SCALZO, JR.
G.R. No. 97765 & G.R. No. 142396

Santiago, Josel V.
FACTS OF THE CASE

On May 1986, an information for violation of the Dangerous Drugs Act of

1972 was filed against petitioner Minucher and one Torabian with the RTC. The
criminal charge rooted from the alleged “buy bust operation” conducted by the
Philippine police narcotic agents in the house of Minucher, an Iranian national
where a quantity of heroin a prohibited drug, was said to have been seized. The
narcotic agents were accompanied by private respondent Scalzo who became
one of the principal witnesses of the prosecution. However, the presiding judge
acquitted the two accused.
FACTS OF THE CASE

During the trial, Scalzo, through his counsels, moved for the extension of
time to file an answer pending a supposed advice from the United States
Department of State and Department of Justice (DOJ) on the defenses to be
raised. With the granted motion, Scalzo contended, among others, that he acted
in the discharge of his official duties as being merely an agent of the Drug
Enforcement Administration of the United States Department of Justice.
FACTS OF THE CASE

Scalzo subsequently filed a motion to dismiss the complaint on the ground

that, being a special agent of the United States Drug Enforcement
Administration, he was entitled to diplomatic immunity. He attached to his
motion Diplomatic Note of the United States Embassy addressed to DOJ of the
Philippines and a Certification of Vice Consul Donna Woodward, certifying that
the note is a true and faithful copy of its original. Trial court denied the motion
to dismiss.
FACTS OF THE CASE

In a decision penned by Justice (now Chief Justice) Davide, Jr. (G.R. No.
97765), this Court reversed the decision of the appellate court and remanded the
case to the lower court for trial. The remand was ordered on the theses (a) that
the Court of Appeals erred in granting the motion to dismiss of Scalzo for lack
of jurisdiction over his person without even considering the issue of the
authenticity of Diplomatic Note No. 414 and (b) that the complaint contained
sufficient allegations to the effect that Scalzo committed the imputed acts in his
personal capacity and outside the scope of his official duties and, absent any
evidence to the contrary, the issue on Scalzo’s diplomatic immunity could not be
taken up.
FACTS OF THE CASE

The trial court admitted the claim of Scalzo and the evidence presented by him that he was
a diplomatic agent entitled to immunity, nevertheless, should be held accountable for the acts
complained of committed outside his official duties. On appeal, the CA reversed the decision
and sustained the defense of Scalzo that he was sufficiently clothed with diplomatic immunity
during his term of duty and therevy immune from the criminal and civil jurisdiction of the
“Receiving State” pursuant to the terms of the Vienna Convention.
 Article 31 of the Vienna Convention, “a diplomatic agent shall enjoy immunity from the
criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and
administrative jurisdiction except in the case of:
 
 (c) an action relating to any professional or commercial activity exercised by the diplomatic
agent in the receiving State outside his official functions.
RULING IN G.R. NO. 97765

The SC in the case of G.R. No. 97765 held that even granting for the sake
of argument that such note is authentic, the complaint for damages filed by the
petitioner still cannot be peremptorily dismissed. Said complaint contains
sufficient allegations which indicate that the private respondent committed the
imputed acts in his personal capacity and outside the scope of his official duties
and functions. As described in the complaint, he committed criminal acts for
which he is also civilly liable. There can be no question that private respondent
was sued in his personal capacity for acts committed outside his official
functions and duties. 
IS ARTHUR SCALZO ENTITLED
TO DIPLOMATIC IMMUNITY?

ISSUE:
RULING:
Yes. A foreign agent, operating within a territory, can be cloaked with immunity from suit
as long as it can be established that he is acting within the directives of the sending state.
The consent or imprimatur of the Philippine government to the activities of the United
States Drug Enforcement Agency, however, can be gleaned from the undisputed facts in the
case.
 The official exchanges of communication between agencies of the government of the two
countries
 Certifications from officials of both the Philippine Department of Foreign Affairs and the
United States Embassy
 Participation of members of the Philippine Narcotics Command in the “buy-bust operation”
conducted at the residence of Minucher at the behest of Scalzo
RULING:
These may be inadequate to support the “diplomatic status” of the latter but they give
enough indication that the Philippine government has given its imprimatur, if not consent, to the
activities within Philippine territory of agent Scalzo of the United States Drug Enforcement
Agency.
The job description of Scalzo has tasked him to conduct surveillance on suspected drug
suppliers and, after having ascertained the target, to inform local law enforcers who would then
be expected to make the arrest.
In conducting surveillance activities on Minucher, later acting as the poseur-buyer during
the buy-bust operation, and then becoming a principal witness in the criminal case against
Minucher,
Scalzo hardly can be said to have acted beyond the scope of his official function or duties.
THANK YOU!
Santiago, Josel V.