国家豁免与官员豁免

中文译文 · Chinese translation

外交部长职务之性质决定了其在任职期间身处国外时，享有完全的刑事管辖豁免与人身不可侵犯权。该豁免与不可侵犯权旨在保护有关人员，使其不因另一国公权力行为受到妨碍，从而确保其履行职责不受阻碍。

英文原文 · English

[T]he functions of a Minister for Foreign Affairs are such that, throughout the duration of his or her office, he or she when abroad enjoys full immunity from criminal jurisdiction and inviolability. That immunity and that inviolability protect the individual concerned against any act of authority of another State which would hinder him or her in the performance of his or her duties.

中文译文 · Chinese translation

刑事管辖豁免与个人刑事责任是两个截然不同的概念。管辖豁免属于程序性事项，而刑事责任则属于实体法问题。管辖豁免固然可能在一定期间内或就某些罪行阻却起诉，但并不能使享有豁免者免除其全部刑事责任。

英文原文 · English

Immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility.

中文译文 · Chinese translation

国家豁免规则属于程序性规则，仅涉及一国法院能否对另一国行使管辖权的问题，并不涉及相关诉讼所针对的行为本身是否合法的问题。

英文原文 · English

The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful.

中文译文 · Chinese translation

以司法判例形式体现的国家实践支持这一命题：一国武装部队及其他国家机关在从事武装冲突过程中实施的、造成死亡、人身伤害或财产损害的行为，其主权行为豁免仍继续适用于相应的民事诉讼，即使相关行为发生于法院地国领土之内，亦不例外。

英文原文 · English

State practice in the form of judicial decisions supports the proposition that State immunity for acta jure imperii continues to extend to civil proceedings for acts occasioning death, personal injury or damage to property committed by the armed forces and other organs of a State in the conduct of armed conflict, even if the relevant acts take place on the territory of the forum State.

中文译文 · Chinese translation

倘若如指控所言，皮诺切特参议员在一九八八年十二月八日之后组织并授权实施酷刑，则其行为不属于任何可产生属事豁免（ratione materiae）的职务行为，因为此种行为违反国际法：智利已同意将此类行为定为不法，且智利已与《禁止酷刑公约》其他缔约国约定，所有签约国均应对官方酷刑行使管辖权，即使该酷刑系在智利境内实施，亦不例外。

英文原文 · English

If, as alleged, Senator Pinochet organised and authorised torture after 8 December 1988, he was not acting in any capacity which gives rise to immunity ratione materiae because such actions were contrary to international law, Chile had agreed to outlaw such conduct and Chile had agreed with the other parties to the Torture Convention that all signatory states should have jurisdiction to try official torture ... even if such torture were committed in Chile.

中文译文 · Chinese translation

本人赞成允许上诉，使引渡程序得以就下述指控继续进行：皮诺切特参议员在一九八八年十二月八日——即其丧失豁免之日——之后，实施了根据共谋实施酷刑而进行的酷刑行为。

英文原文 · English

I would allow the appeal so as to permit the extradition proceedings to proceed on the allegation that torture in pursuance of a conspiracy to commit torture ... was being committed by Senator Pinochet after 8 December 1988 when he lost his immunity.