THIRD DIVISION Departments of State and Justice of the United States of
America were studying the case for the purpose of determining
[G.R. No. 97765. September 24, 1992.]
KHOSROW MINUCHER, Petitioner, v. THE HONORABLE
COURT OF APPEALS and ARTHUR W. SCALZO,
JR., Respondents.
De Leon, De Leon, Casanova Associates for Petitioner.
Luna, Sison, & Manas for Private Respondent.
SYLLABUS
1. REMEDIAL LAW; SPECIAL CIVIL ACTION; CERTIORARI;
DISMISSAL OF ACTION BASED ON ERRONEOUS
ASSUMPTION, A GRAVE ABUSE OF DISCRETION. — While
the trial court correctly denied the motion to dismiss, the public
respondent gravely abused its discretion in dismissing Civil
Case No. 88-45691 on the basis of an erroneous assumption
that simply because of the Diplomatic Note, the private
respondent is clothed with diplomatic immunity, thereby
divesting the trial court of jurisdiction over his person. Private
respondent himself, in his Pre-trial Brief filed on 13 June 1990,
unequivocally states that he would present documentary
evidence consisting of DEA records on his investigation and
surveillance of plaintiff and on his position and duties as DEA
special agent in Manila. Having thus reserved his right to
present evidence in support of his position, which is the basis
for the alleged diplomatic immunity, the barren self-serving
claim in the belated motion to dismiss cannot be relied upon for
a reasonable, intelligent and fair resolution of the issue of
diplomatic immunity. The public respondent then should have
sustained the trial court’s denial of the motion to dismiss.
Verily, such should have been the most proper and appropriate
recourse. It should not have been overwhelmed by the self-
serving Diplomatic Note whose belated issuance is even
suspect and whose authenticity has not yet been proved. The
undue haste with which respondent Court yielded to the private
respondent’s claim is arbitrary.
2. ID.; ACTIONS; MOTION TO DISMISS; GROUNDS; LACK
OF CAUSE OF ACTION WHERE DEFENDANT IS A
DIPLOMAT. — It may at once be stated that even if the private
respondent enjoys diplomatic immunity, a dismissal of the case
cannot be ordered on the ground of lack of jurisdiction over his
person, but rather for lack of a cause of action because even if
he committed the imputed act and could have been otherwise
made liable therefor, his immunity would bar any suit against
him in connection therewith and would prevent recovery of
damages arising therefrom.
3. ID.; ID.; JURISDICTION OVER THE PERSON, HOW
ACQUIRED; CASE AT BAR. — Jurisdiction over the person of
the defendant is acquired either by his voluntary appearance or
by the service of summons upon him. While in the instant case,
private respondent’s counsel filed, on 26 October 1988, a
motion to quash summons because being outside the
Philippines and being a non-resident alien, he is beyond the
processes of the court, which was properly denied by the trial
court, he had in effect already waived any defect in the service
of the summons by earlier asking, on two (2) occasions, for an
extension of time to file an answer, and by ultimately filing an
Answer with Counterclaim. There is no question that the trial
court acquired jurisdiction over the person of the
private Respondent.
4. ID.; ID.; MOTION TO DISMISS; CASE SHOULD NOT BE
DISMISSED WHERE THERE IS SUFFICIENT ALLEGATION
OF PERSONAL LIABILITY OF DEFENDANT; CASE AT BAR.
— And now to the core issue — the alleged diplomatic
immunity of the private Respondent. Setting aside for the
moment the issue of authenticity raised by the petitioner and
the doubts that surround such a claim, in view of the fact that it
took private respondent one (1) year, eight (8) months and
seventeen (17) days from the time his counsel filed on 12
September 1988 a Special Appearance and Motion asking for
a first extension of time to file the Answer because the
1
his defenses, before he could secure the Diplomatic Note from
the U.S. Embassy in Manila, and 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. In the
Special Appearance to Quash Summons earlier alluded to, on
the other hand, private respondent maintains that the claim for
damages arose "from an alleged tort." Whether such claim
arises from criminal acts or from tort, there can be no question
that private respondent was sued in his personal capacity for
acts committed outside his official functions and duties. In the
decision acquitting the petitioner in the criminal case involving
the violation of the Dangerous Drugs Act, copy of which is
attached to his complaint for damages and which must be
deemed as an integral part thereof, the trial court gave full
credit to petitioner’s theory that he was a victim of a frame-up
instigated by the private Respondent. Thus, there is a prima
facie showing in the complaint that indeed private respondent
could be held personally liable for the acts committed beyond
his official functions or duties.
DECISION
DAVIDE, JR., J.:
May a complaint for damages be dismissed on the sole basis
of a statement contained in a Diplomatic Note, belatedly issued
after an answer to the said complaint had already been filed,
that the defendant was a member of the diplomatic staff of the
United States Diplomatic Mission in the Philippines at the time
the cause of action accrued?
This is the issue in the instant petition.
On 3 August 1988, petitioner filed with the Regional Trial Court
(RTC) of Manila a complaint for damages against private
respondent Arthur Scalzo, Jr. The case was docketed as Civil
Case No. 88-45691 and was raffled off to Branch 19 of said
court. 1 Petitioner alleges therein that he was the Labor
Attache of the Embassy of Iran in the Philippines "prior to the
Ayatollah Khomeini regime." On 13 May 1986, private
respondent, then connected with the American Embassy in
Manila, was introduced to him by a certain Jose Iñigo, an
informer belonging to the military intelligence community, with
whom petitioner had several business transactions involving
Iranian products like carpets, caviar and others. Iñigo had
previously sought petitioner’s assistance in connection with
charges of illegal recruitment. According to Iñigo, private
respondent was purportedly interested in buying Iranian
products, namely caviar and carpets. On this same occasion,
petitioner complained to the private respondent about the
problems the former was then encountering with the American
Embassy regarding the expired visas of his wife and fellow
Iranian, Abbas Torabian. Offering his help, private respondent
gave the petitioner a calling card showing that the former is an
agent of the Drug Enforcement Administration (DEA),
Department of Justice, of the United States of America
assigned to the American Embassy in Manila with official
contacts with a certain Col. Dumlao; head of the Anti-Narcotics
Command, Philippine Constabulary. Private respondent also
expressed his intent to purchase two (2) kilos of caviar worth
P10,000.00 and informed the petitioner that he might have
prospective buyers for these goods; he further promised to
arrange for the renewal of the aforesaid visas for a $2,000.00
fee. On 19 May 1986, private respondent invited petitioner to
dinner at Mario’s Restaurant in Makati, Metro Manila; the
petitioner accepted. During the said dinner held the very next
day, both discussed politics and business. Specifically, private
respondent told petitioner that he wanted to purchase an
additional two hundred (200) grams of caviar and inquired
about his commission for selling petitioner’s carpets; petitioner
promised a 10% commission based on
profits.chanrobles.com.ph : virtual law library
In the evening of 26 May 1986, private respondent came to
petitioner’s residence and asked to be entrusted with a pair of
Persian silk carpets with a floor Price of $24,000.00 each, for
which he had a buyer. The following day, private respondent
returned to petitioner’s residence, took the carpets and gave
the latter $24,000.00; after about an hour, private respondent
returned, claimed that he had already made arrangements with
his contacts at the American Embassy concerning the visas
and asked for $2,000.00. He was given this amount. It turned
out, however, that private respondent had prepared an
elaborate plan to frame-up the petitioner and Abbas Torabian
for alleged heroin trafficking; both were falsely arrested by
private respondent and some American and Filipino police
officers, and were taken to Camp Crame in their underwear.
Private respondent and his companions took petitioner’s three
(3) suitcases containing various documents, his wallet
containing money and the keys to his house and car, as well
as the $24,000.00 which private respondent had earlier
delivered to him. Petitioner and Torabian were handcuffed
together for three (3) days and were not given food and water;
they were asked to confess to the possession of heroin or else
they would be jailed or even executed by Iranian terrorists.
Consequently, the two were charged for the violation of
Section 4 of R.A. No. 6425 (Dangerous Drugs Act of 1972)
before the Regional Trial Court of Pasig. They were, however,
acquitted by the said court on 8 January 1988. Private
respondent testified for the prosecution in the said case.
Petitioner further alleges in his complaint that private
respondent falsely testified against him in the criminal case.
The former also avers that charges of unlawful arrest, robbery
and estafa or swindling have already been filed against the
private Respondent.
He therefore prays for actual and compensatory damages of
not less than P480,000,00 ($24,000.00) representing the fair
market value of the Persian silk carpet and $2,000.00
representing the refund of the amount he had given for the
visas; moral damages in the amount of P5 million; exemplary
damages in the sum of P100,000.00 and attorney’s fees of at
least P200,000.00 to answer for litigation expenses incurred for
his defense in the criminal case and for the prosecution of the
civil case.chanrobles law library
On 14 September 1988, private respondent’s counsel, the law
firm LUNA, SISON AND MANAS, filed a Special Appearance
and Motion alleging therein that since the private respondent is
an agent of the Drug Enforcement Administration of the United
States of America, and the acts and omissions complained of
were performed by him in the performance of official functions,
the case is now under study by the Departments of State and
Justice in Washington, D.C. for the purpose of determining
what defenses would be appropriate; said counsel also prayed
that the period to answer be extended to 13 October 1988. 2
This prayer was granted in the 16 September 1988 order of the
court.
On 12 October 1988, private respondent’s aforesaid counsel
filed another Special Appearance and Motion seeking a further
extension of the period to answer to 28 October 1988 because
the law firm had not yet received the decision of the
Departments of State and Justice. 3
On 27 October 1988, private respondent’s counsel filed a
Special Appearance to Quash Summons 4 alleging therein
that: "The action being a personal action for damages arising
from an alleged tort, the defendant being outside the
Philippines and not being a resident of the Philippines,
Defendant is beyond the processes of this court," and praying
that the summons issued be quashed. The trial court denied
the motion in its Order of 13 December 1988. 5 Unsatisfied
with the said order, private respondent filed a petition
for certiorari with the Court of Appeals which was docketed as
C.A.-G R. SP No 17023. In its Decision promulgated on 6
October 1989, the Court of Appeals dismissed the petition for
lack of merit. 6 Respondent thus sought a review of the said
decision by filing a petition with this Court which was docketed
2
as G.R. No. 91173. Said petition was however, dismissed by
this Court in the Resolution of 20 December 1989 for non-
compliance with paragraph 2 of Circular No. 1-88; moreover,
respondent failed to show that the Court of Appeals had
committed any reversible error in the questioned judgment. 7
On 9 March 1990, private respondent filed with the trial court
his Answer in Civil Case No. 88-46591 8 wherein he denies the
material allegations in the complaint, sets forth the following
Affirmative Defenses:jgc:chanrobles.com.ph
"The Complaint fails to state a cause of action: in having
plaintiff and Abbas Torabian arrested on May 27, 1986 and
detained at Camp Crame; a quantity of heroin, seized from
plaintiff by Philippine police authorities and in seizing the
money used in the drug transaction, defendant acted in the
discharge of his official duties or otherwise in the performance
of his official functions as agent of the Drug Enforcement
Administration, U.S. Department of Justice." 9
and interposes a counterclaim for P100,000.00 to answer for
attorney’s fees and the expenses of litigation.chanrobles law
library : red
On 13 June 1990, private respondent filed with the trial court
the Defendant’s Pre-Trial Brief, 10 the pertinent portions of
which read:chanrob1es virtual 1aw library
x x x
"DEFENSES
1. Plaintiff’s complaint is false and malicious;
2. In having a quantity of heroin and the money used in the
drug transaction between him and plaintiff seized from plaintiff
by P.C. NARCOM, plaintiff (sic) was acting in the discharge of
his official functions as special agent of the Drug Enforcement
Administration, U.S. Department of Justice and was then a
member of the U.S. diplomatic mission in the Philippines.
DEFENDANT’S EVIDENCE
Defendant will present:chanrob1es virtual 1aw library
1. His testimony by deposition upon written interrogatories
because defendant lives and works outside the Philippines and
is not a resident of the Philippines.
2. Documentary evidence, consisting of DEA records on his
investigation and surveillance of plaintiff and on his position
and duties as DEA special agent in May 1980 in Manila; these
will be identified by defendant and possibly by another DEA
official." 11
On 14 June 1990, private respondent filed a Motion to Dismiss
12 the case on the ground that as per the copy of Diplomatic
Note No. 414 issued by the Embassy of the United States of
America, 13 dated 29 May 1990 and certified to be a true and
faithful copy of the original by one Donald K. Woodward, Vice-
Consul of the United States of America on 11 June 1990, 14
the Embassy advised the Department of Foreign Affairs of the
Republic of the Philippines that:jgc:chanrobles.com.ph
". . . Arthur W. Scalzo, was a member of the diplomatic staff of
the United States diplomatic mission from his arrival in the
Philippines on October 14, 1985 until his departure on August
10, 1988. . . .
. . . in May 1986, with the cooperation of Philippine law
enforcement officials and in the exercise of his functions as a
member of the mission, Mr. Scalzo investigated Mr. Khosrow
Minucher, the plaintiff in the aforementioned case for allegedly
trafficking in a prohibited drug. It is this investigation which has
given rise to the plaintiff’s complaint. The Embassy takes note
of the provisions of Article 39(2) of the Vienna Convention on
Diplomatic Relations, which provides that Mr. Scalzo retains
immunity from civil suit for acts performed in the exercise of his
functions, as is the case here, even though he has departed
(sic) the country." chanrobles virtual lawlibrary
Petitioner opposed the motion.
On 25 June 1990, the trial court issued an order denying the
motion for being "devoid of merit." 15
Private respondent then filed with the public respondent Court
of Appeals a petition for certiorari, docketed therein as C.A.-
G.R. SP No. 22505, to nullify the aforesaid Order of 25 June
1990.
On 31 October 1990, public respondent promulgated a
Decision 16 ordering the dismissal of Civil Case No. 88-45691
due to the trial court’s lack of jurisdiction over the person of the
defendant because the latter possessed diplomatic immunity.
Petitioner’s motion to reconsider the decision was denied in the
public respondent’s Resolution of 8 March 1991
because:jgc:chanrobles.com.ph
"When therefore Mr. Scalzo testified in the Criminal Case
against Khosrow Minucher it was in connection with his official
functions as an agent of the Drug Enforcement Administration
of the United States and member (sic) of the American Mission
charged with cooperating with the Philippine law enforcement
agency. He therefore, enjoys immunity from criminal and civil
jurisdiction of the receiving State under Article 31 of the Vienna
Convention on Diplomatic Relations." 17
Hence, this petition for review under Rule 45 of the Rules of
Court. Petitioner declares that the public respondent
erred:jgc:chanrobles.com.ph
"I. . . . IN NOT DISMISSING THE PETITION FOR
CERTIORARI FILED BY SCALZO.
II. . . . IN RULING THAT PRIVATE RESPONDENT SCALZO
IS A DIPLOMAT IMMUNE FROM CIVIL SUIT
CONFORMABLY WITH THE VIENNA CONVENTION ON
DIPLOMATIC RELATIONS.
III. . . . IN NOT FINDING THAT SCALZO’S PARTICIPATION
IN THE BUY-BUST OPERATION IS OUTSIDE OF HIS
OFFICIAL FUNCTIONS, HENCE, THAT HE IS NOT IMMUNE
FROM SUIT UNDER THE VIENNA CONVENTION ON
DIPLOMATIC RELATIONS." 18
After private respondent filed his Comment to the petition and
the petitioner submitted his Reply thereto, this Court gave due
course to the same and required the parties to submit their
respective Memoranda, which they subsequently did.
We find merit in the petition.
While the trial court correctly denied the motion to dismiss, the
public respondent gravely abused its discretion in dismissing
Civil Case No 88-45691 on the basis of an erroneous
assumption that simply because of the Diplomatic Note, the
private respondent is clothed with diplomatic immunity, thereby
divesting the trial court of jurisdiction over his person. It may at
once be stated that even if the private respondent enjoys
diplomatic immunity, a dismissal of the case cannot be ordered
on the ground of lack of jurisdiction over his person, but rather
for lack of a cause of action because even if he committed the
imputed act and could have been otherwise made liable
therefor, his immunity would bar any suit against him in
connection therewith and would prevent recovery of damages
arising therefrom. Jurisdiction over the person of the defendant
is acquired either by his voluntary appearance or by the
service of summons upon him. While in the instant case,
private respondent’s counsel filed, on 26 October 1988, a
motion to quash summons because being outside the
Philippines and being a non-resident alien, he is beyond the
processes of the court, which was properly denied by the trial
court, he had in effect already waived any defect in the service
of the summons by earlier asking, on two (2) occasions, for an
extension of time to file an answer, and by ultimately filing an
Answer with Counterclaim. There is no question that the trial
court acquired jurisdiction over the person of the
3
private Respondent.cralawnad
And now to the core issue — the alleged diplomatic immunity
of the private Respondent. Setting aside for the moment the
issue of authenticity raised by the petitioner and the doubts
that surround such a claim, in view of the fact that it took
private respondent one (1) year, eight (8) months and
seventeen (17) days from the time his counsel filed on 12
September 1988 a Special Appearance and Motion asking for
a first extension of time to file the Answer because the
Departments of State and Justice of the United States of
America were studying the case for the purpose of determining
his defenses, before he could secure the Diplomatic Note from
the U.S. Embassy in Manila, and 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. In the
Special Appearance to Quash Summons earlier alluded to, on
the other hand, private respondent maintains that the claim for
damages arose "from an alleged tort." Whether such claim
arises from criminal acts or from tort, there can be no question
that private respondent was sued in his personal capacity for
acts committed outside his official functions and duties. In the
decision acquitting the petitioner in the criminal case involving
the violation of the Dangerous Drugs Act, copy of which is
attached to his complaint for damages and which must be
deemed as an integral part thereof, the trial court gave full
credit to petitioner’s theory that he was a victim of a frame-up
instigated by the private Respondent. Thus, there is a prima
facie showing in the complaint that indeed private respondent
could be held personally liable for the acts committed beyond
his official functions or duties.
In Shauf v. Court of Appeals, 19 after citing pertinent
authorities, 20 this Court ruled:chanrobles lawlibrary : rednad
"The aforecited authorities are clear on the matter. They state
that the doctrine of immunity from suit will not apply and may
not be involved where the public official is being sued in his
private and personal capacity as an ordinary citizen. The cloak
of protection afforded the officers and agents of the
government is removed the moment they are sued in their
individual capacity. This situation usually arises where the
public official acts without authority or in excess of the powers
vested in him. It is a well-settled principle of law that a public
official may be liable in his personal private capacity for
whatever damage he may have caused by his act done with
malice and in bad faith, or beyond the scope of his authority or
jurisdiction (Dumlao v. Court of Appeals, Et Al., 114 SCRA 247
[1982])."cralaw virtua1aw library
Even Article 31 of the Vienna Convention on Diplomatic
Relations admits of exceptions. It reads:jgc:chanrobles.com.ph
"1. 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:chanrob1es virtual 1aw library
x x x
(c) an action relating to any professional or commercial activity
exercised by the diplomatic agent in the receiving State outside
his official functions. (Emphasis supplied).
There is of course the claim of private respondent that the acts
imputed to him were done in his official capacity. Nothing
supports this self-serving claim other than the so-called
Diplomatic Note. In short, insofar as the records are
concerned, private respondent did not come forward with
evidence to prove that indeed, he had acted in his official
capacity. It does not appear that an actual hearing on the
motion to dismiss was conducted and that private respondent
offered evidence in support thereof. Thus, it is apropos to
quote what this Court stated in United States of America v.
Guinto: 21

"But even as we are certain that the individual petitioners in

G.R. No. 80018 were acting in the discharge of their official
functions, we hesitate to make the same conclusion in G.R.
No. 80258. The contradictory factual allegations in this case
deserve in our view a closer study of what actually happened
to the plaintiffs. The record is too meager to indicate if the
defendants were really discharging their official duties or had
actually exceeded their authority when the incident in question
occurred. Lacking this information, this Court cannot directly
decide this case. The needed inquiry must first be made by the
lower court so it may assess and resolve the conflicting claims
of the parties on the basis of the evidence that has yet to be
presented at the trial. Only after it shall have determined in
what capacity the petitioners were acting at the time of the
incident in question will this Court determine, if still necessary,
if the doctrine of state immunity is applicable."cralaw virtua1aw
library

It may be mentioned in this regard that private respondent

himself, in his Pre-trial Brief filed on 13 June 1990,
unequivocally states that he would present documentary
evidence consisting of DEA records on his investigation and
surveillance of plaintiff and on his position and duties as DEA
special agent in Manila. Having thus reserved his right to
present evidence in support of his position, which is the basis
for the alleged diplomatic immunity, the barren self-serving
claim in the belated motion to dismiss cannot be relied upon for
a reasonable, intelligent and fair resolution of the issue of
diplomatic immunity.

The public respondent then should have sustained the trial

court’s denial of the motion to dismiss. Verily, such should
have been the most proper and appropriate recourse. It should
not have been overwhelmed by the self-serving Diplomatic
Note whose belated issuance is even suspect and whose
authenticity has not yet been proved. The undue haste with
which respondent Court yielded to the private respondent’s
claim is arbitrary.

WHEREFORE, the challenged decision of public respondent of

31 October 1990 in C.A.-G.R. SP No. 22505 is SET ASIDE
and the Order of 25 June 1990 of Branch 19 of the Regional
Trial Court of Manila in Civil Case No. 88-45691 denying
private respondent’s Motion to Dismiss is hereby
REINSTATED.

Costs against private Respondent.

SO ORDERED.

Bidin, Romero and Melo, JJ., concur.

Gutierrez, Jr., J., is on official leave.

4
Case Digest: KHOSROW MINUCHER vs. HON. COURT OF
APPEALS and ARTHUR SCALZO (G.R. No. 142396
February 11, 2003)
Facts
Violation of the “Dangerous Drugs Act of 1972,” was filed
against Minucher following a “buy-bust operation” conducted
by Philippine police narcotic agents accompanied by Scalzo in
the house of Minucher, an Iranian national, where heroin was
said to have been seized. Minucher was later acquitted by the
court.
Minucher later on filed for damages due to trumped-up charges
of drug trafficking made by Arthur Scalzo.
Scalzo on his counterclaims that he had 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.
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.
ISSUE
Whether or not Arthur Scalzo is indeed entitled to diplomatic
immunity.
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
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.
5
MINUCHER VS. COURT OF APPEALS
G.R. No. 142396, 2003 February 11
FACTS
Sometime in May 1986, an information for violation of the
Dangerous Drugs Act was filed against petitioner Khosrow
Minucher with the RTC. The criminal charge followed a "buy-
bust operation" concluded by the Philippine police narcotic
agent in the house if Minucher where a quantity of heroin, a
prohibited drug, was said to have been seized. The narcotic
agents were accompanied by private respondent Arthur Scalzo
who would, in due time, become one of the principal witnesses
for the prosecution. On January 1988, Presiding Judge Migrino
rendered a decision acquitting the accused. Minucher filed Civil
Case before the RTC for damages on account of what he
claimed to have been trumped-up charges of drug trafficking
made by Arthur Scalzo.
ISSUES
1. Whether or not Arthur Scalzo is entitled to diplomatic
immunity
2. Whether the Doctrine of State Immunity from suit is
applicable herein
RULING
1. Scalzo contends that the Vienna Convention on Diplomatic
Relations, to which the Philippines is a signatory, grants him
absolute immunity from suit being an agent of the US Drugs
Enforcement Agency. However, the main yardstick in
ascertaining whether a person is a diplomat entitled to
immunity is the determination of whether or not he performs
duties of diplomatic nature. The Vienna Convention lists the
classes of heads of diplomatic missions to include (a)
ambassadors or nuncios accredited to the heads of state, (b)
envoys, ministers or inter nuncios accredited to the head of
states, and (c) charges d' affairs accredited to the ministers of
foreign affairs. The Convention defines "diplomatic agents" as
the heads of missions or members of the diplomatic staff, thus
impliedly withholding the same privileges from all others.
Scalzo asserted that he was an Assistant Attache of the US
diplomatic mission. Attaches assist a chief of mission in his
duties and are administratively under him. These officials are
not generally regarded as members of the diplomatic mission,
nor they normally designated as having diplomatic rank.
2. While the diplomatic immunity of Scalzo might thus remain
contentions, it was sufficiently established that, indeed, he
worked for the USDEA. If it should be ascertained that Scalzo
was acting well within his assigned functions when he
committed the acts allegedly complained of, the present
controversy could then be resolved under the related doctrine
of State Immunity from Suit. While the doctrine appears to
prohibit only suits against against the State without its consent,
it is also applicable to complaints filed against officials of the
State for acts allegedly performed by them in the discharge of
their duties. The official exchanges of communication,
certifications from officials, as well as participation of members
of the Philippine Narcotics Command may be inadequate to
support to support the diplomatic status of Scalzo but they give
enough indication that the Philippine government has given its
imprimatur to the activities of Scalzo. It can hardly be said that
he acted beyond the scope of his official function or duties. All
told, Scalzo is entitled to the defense os state immunity from
suit.
minucher v. CA 214 SCRA 242 (1992)
MINUCHER v. CA (September 24, 1992)
Petitioner: KHOSROW MINUCHER
Respondents: CA & ARTHUR W. CALZO, JR.
Nature: PETITION for review of the decision of the Court of
Appeals
Ponente: DAVIDE, JR., J.
1. CALZO FRAMES UP MINUCHER FOR POSSESSION OF
HEROIN. Calzo, an agent of the Drug Enforcement
Administration of Department of Justice of the USA ordered
from Minucher, a labor attaché of the Iran Embassy in Manila
Iranian were introduced by a common associate, Inigo. Calzo
offered to help Minucher with his problem with his family’s US
visas for a fee of $2,000. Calzo also found buyers of certain
Iranian goods which Calzo was selling such as silk and
carpets. So, Calzo came to the residence of Minucher and
asked to be entrusted with a pair of Persian silk carpets with a
floor price of $24,000 each, for which he had a buyer. The
following day, Calzo returned to Minucher’s residence, took the
carpets and gave the latter $24,000; after about an hour, Calzo
returned, claimed that he had already made arrangements with
his contacts at the American Embassy concerning the visas
and asked for $2,000. He was given this amount. It turned out,
however, that Calzo had prepared an elaborate plan to frame-
up Minucher for alleged trafficking; both were falsely arrested
by Calzo and some American and Filipino police officers, and
were taken to Camp Crame in their underwear. Calzo and his
companions took petitioner’s 3 suitcases containing various
documents, his wallet containing money and the keys to his
house and car, as well as the $24,000 which Calzo had earlier
delivered to him. Minucher and his companion, Torabian were
handcuffed together for 3 days and were not given food and
water; they were asked to confess to the possession of heroin
or else they would be jailed or even executed by Iranian
terrorists. Consequently, the two were charged for the violation
of Section 4 of RA. No. 6425 (Dangerous Drugs Act of 1972)
before the Pasig RTC. They were, however, acquitted by the
said court. Calzo testified for the prosecution in the said case.
2. COMPLAINT FOR DAMAGES. Minucher files a complaint
for damages against Calzo and alleges that Calzo falsely
testified against him in the criminal case. Minucher also avers
that charges of unlawful arrest, robbery and estafa or swindling
have already been filed against the Calzo. He therefore prays
for actual and compensatory damages of not less than
P480,000 ($24,000) representing the fair market value of the
Persian silk carpet and $2,000 representing the refund of the
amount he had given for the visas; moral damages in the
amount of P5 million; exemplary damages in the sum of
P100,000 and attorney’s fees of at least P200,000 to answer
for litigation expenses incurred for his defense in the criminal
case and for the prosecution of the civil case,
3. SPECIAL APPEARANCE TO QUASH SUMMONS. Calzo’s
counsel, the law firm LUNA, SISON AND MANAS, filed a
Special Appearance and Motion alleging therein that since
Calzo is an agent of the Drug Enforcement Administration of
the USA, and the acts and omissions complained of were
performed by him in the performance of official functions, the
case is now under study by the Departments of State and
Justice in Washington, D.C. for the purpose of determining
what defenses would be appropriate; said counsel also prayed
that the period to answer be extended. Then, counsel filed a
Special Appearance to Quash Summons alleging therein that:
The action being it personal action for damages arising from an
alleged tort, the defendant being outside the Philippines and
6
not being a resident of the Philippines, Defendant is beyond
the processes of this court,” and praying that the summons
issued be quashed. The trial court denied the motion in its
Order. Unsatisfied with the said order, Calzo filed a petition for
certiorari with the CA. In its Decision, the CA dismissed the
petition for lack of merit. Calzo elevated the case to the SC but
was dismissed due to non-compliance with par 2 of Circular
No. 1-88 and its failure to show that the CA had committed any
reversible error.
4. CALZO FILED HIS ANSWER. Thereafter, Calzo filed with
the trial court his Answer in the civil case wherein he denies
the material allegations in the complaint, sets forth the
following Affirmative Defenses: “The Complaint fails to state a
cause of action: in having Minucher and Torabian arrested and
detained at Camp Crame; a quantity of heroin, seized from
plaintiff by Philippine police authorities and in seizing the
money used in the drug transaction, defendant acted in the
discharge of his official duties or otherwise in the performance
of his official functions as agent of the Drug Enforcement
Administration, U.S. Department of Justice and interposes a
counterclaim for P100,000 to answer for attorney’s fees and
the expenses of litigation.”
5. CALZO’S MTD BASED ON A DIPLOMATIC NOTE. Calzo
filed a Motion to Dismiss the case on the ground that as per
the copy of Diplomatic Note No. 414 issued by the Embassy of
the United States of America,13 dated 29 May 1990 and
certified to be a true and faithful copy of the original by one
Donald K. Woodward, Vice Consul of the United States of
America on 11 June 1990, the Embassy advised the
Department of Foreign Affairs of the Republic of the Philippines
that:
“x x x Arthur W. Scalzo, was a member of the diplomatic staff
of the United States diplomatic mission from his arrival in the
Philippines on October 14, 1985 until his departure on August
10, 1988. x x x
x x x in May 1986, with the cooperation of Philippine law
enforcement officials and in the exercise of his functions as a
member of the mission, Mr. Scalzo investigated Mr. Khosrow
Minucher, the plaintiff in the aforementioned case for allegedly
trafficking in a prohibited drug. It is this investigation which has
given rise to the plaintiff’s complaint. The Embassy takes note
of the provisions of Article 39(2) of the Vienna Convention on
Diplomatic Relations, which provides that Mr. Scalzo retains
immunity from civil suit for sets performed in the exercise of his
functions, as is the caw here, even though he has departed
(sic) the country.”
The trial court issued an order denying the motion for being
“devoid of merit.”
6. CA DISMISSED CASE. Calzo then filed with the CA a
petition for certiorari. CA promulgated a Decision dismissing
the case due to the trial court’s lack of jurisdiction over the
person of the defendant because the latter possessed
diplomatic immunity. MR denied because: “When therefore Mr.
Scalzo testified in the Criminal Case against Khosrow
Minucher it was in connection with his official functions as an
agent of the Drug Enforcement Administration of the United
States and member (sic) of the American Mission charged with
cooperating with the Philippine law enforcement agency. He
therefore, enjoys immunity from criminal and civil jurisdiction of
the receiving State under Article 31 of the Vienna Convention
on Diplomatic Relations.” Hence, this petition for review under
Rule 45 of the Rules of Court.
ISSUE: WON a complaint for damages should be dismissed on
the sole basis of a statement contained in a Diplomatic Note,
belatedly issued after an answer to the said complaint had
already been filed, that the defendant was a member of the
diplomatic staff of the United States Diplomatic Mission in the
Philippines at the time the cause of action accrued?
HELD: NO.
7. CORRECT GROUND TO DISMISS: FAILURE TO STATE A
COA. While the trial court correctly denied the motion to
dismiss, the CA gravely abused its discretion in dismissing the
civil case on the basis of an erroneous assumption that simply-
because of the Diplomatic Note, the private respondent is
clothed with diplomatic immunity, thereby divesting the trial
court of jurisdiction over his person. It may at once be stated
that even if the Calzo enjoys diplomatic immunity, a dismissal
of the case cannot be ordered on the ground of lack of
jurisdiction over his person, but rather for lack of a cause of
action because even if he committed the imputed act and could
have been otherwise made liable therefor, his immunity would
bar any suit against him in connection therewith and would
prevent recovery of damages arising therefrom.
8. COURT ACQUIRED JURISDICTION OVER CALZO.
Jurisdiction over the person of the defendant is acquired either
by his voluntary appearance or by the service of summons
upon him. While in the instant case, private respondent’s
counsel filed, on 26 October 1988, a motion to quash
summons because being outside the Philippines and being a
non-resident alien, he is beyond the processes of the court,
which was properly denied by the trial court, he had in effect
already waived any defect in the service of the summons by
earlier asking, on 2 occasions, for an extension of time to file
an answer, and by ultimately filing an Answer with
Counterclaim. There is no question that the trial court acquired
jurisdiction over the person of the private respondent.
9. THE CASE SHOULD NOT HAVE BEEN DISMISSED. The
complaint for damages filed by the Minucher 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. In the Special Appearance to
Quash Summons earlier alluded to, an the other hand, private
respondent maintains that the claim for damages arose “from
an alleged tort.” Whether such claim arises from criminal acts
or from tort, there can be no question that private respondent
was sued in his personal capacity for acts committed outside
his official functions duties. In the decision acquitting petitioner
in the criminal case involving the violation of the Dangerous
Drugs Act, copy of which is attached to his complaint for
damages and which must be deemed as an integral part
thereof, the trial court gave full credit to petitioner’s theory that
he was a victim of a frame-up instigated by the private
respondent. Thus, there is a prima facie showing in the
complaint that indeed private respondent could be held
personally liable for the acts committed beyond his official
functions or duties.
10. REITERATED DOCTRINE IN SHAUF. In Shauf vs. Court
of Appeals, after citing pertinent authorities, this Court ruled:
“The aforecited authorities are clear on the matter. They state
that the doctrine of immunity from suit will not apply and may
not be invoked where the public official is being sued in his
private and personal capacity as an ordinary citizen. The cloak
of protection afforded the officers and agents of the
government is removed the moment they are sued in their
individual capacity. This situation usually arises where the
public official acts without authority or in excess of the powers
vested in him. It is a well-settled principle of law that a public
official may be liable in his personal private capacity for
whatever damage he may haw mused by his act done with
malice and in bad faith, or beyond the scope of his authority or
jurisdiction (Dumlao vs. Court of Appeals, et al., 114 SCRA
247 [1982]).”
11. ARTICLE 31 OF THE VIENNA CONVENTION ON
DIPLOMATIC RELATIONS admits of exceptions. It reads:
“I. 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 an action relating to any professional or commercial activity
exercised by the diplomatic agent in the receiving State,
outside his official functions. (Emphasis supplied).
12. NO EVIDENCE TO PROVE HE ACTED IN HIS OFFICIAL
CAPACITY. There is of course the claim of private respondent
that the act imputed to him were done in his official capacity.
Nothing supports this self-serving claim other than the so-
called Diplomatic Note. In short, insofar as the records are
concerned, Calzo did not come forward with evidence to prove
that indeed, he had acted in his official capacity. It does not
appear that an actual hearing on the motion to dismiss was
conducted and that Calzo offered evidence in support thereof.
Thus, it is apropos to quote what this Court stated in United
States of America vs. Guinto:
“But even as we are, certain that the individual petitioners in
G.R. No. 80018 were acting in the discharge of their official
functions, we hesitate to make the same conclusion in G.R.
No. 80258. The contradictory factual allegations in this case
deserve in our view a closer study of what actually happened
to the plaintiffs. The record is too meager to indicate if the
defendants were really discharging their official duties or had
actually exceeded their authority when the incident in question
occurred. Lacking this information, this Court cannot directly
decide this case. The needed inquiry must first be made by the
lower court so it may assess and resolve the conflicting claims
of the parties on the basis of the evidence that has yet to be
presented at the trial. Only after it shall have determined in
what capacity the petitioners were acting at the time of the
incident in question will this Court determine, if still necessary,
if the doctrine of state immunity is applicable.”
It may be mentioned in this regard that Calzo himself, in his
Pre-trial Brief, unequivocally states that he would present
documentary evidence consisting of DEA records on his
investigation and surveillance of plaintiff and on his position
and duties as DEA special agent in Manila. Having thus
reserved his right to present evidence in support of his
position, which is the basis for the alleged diplomatic immunity,
the barren self-serving claim in the belated motion to dismiss
cannot be relied upon for a reasonable, intelligent and fair
resolution of the issue of diplomatic immunity.
The public respondent then should have sustained the trial
court’s denial of the motion to dismiss. Verily, such should
have been the most proper and appropriate recourse. It should
not have been overwhelmed by the self-serving Diplomatic
Note whose belated issuance is even suspect and whose
authenticity has not yet been proved. The undue haste with
which the CA yielded to the private respondent’s claim is
arbitrary.
DISPOSITION. WHEREFORE, the challenged decision of the
CA is SET ASIDE and the Order of the Regional Trial Court of
Manila denying private respondent’s Motion to Dismiss is
hereby REINSTATED