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
Doctrine:
Filing a motion to quash, which, in effect already waives any defect in the service of summons by earlier
asking an extension to file time to file an Answer and filing an Answer with Counterclaim.

Facts:
Khosrow Minucher is the Labor Attaché of the Embassy of Iran in the Phil. Arthur Scalzo, then connected
with the American Embassy in Manila, was introduced to him by Jose Inigo (an informer belonging to the
military intelligence community).

Accdg. to Inigo, Scalzo was interested in buying Iranian products like caviar and carpets. Minucher
complained to Scalzo about his problems with the American Embassy regarding the expired visas of his
wife, Abbas Torabian. Offering help, Scalzo gave Minucher a calling card showing that the former is an
agent of the Drug Enforcement Administration (DEA) assigned to the American Embassy in Manila. As a
result, Scalzo expressed his intent to buy caviar and further promised to arrange the renewal of the visas.

Scalzo went to Minucher's residence and asked to be entrusted with Persian silk carpets, for which he
had a buyer. The next day, Scalzo returned and claimed that he had already made arrangements with his
contacts concerning the visas and asked for $2,000.

It turned out that Scalzo prepared a plan to frame-up a Minucher and wife for alleged heroin trafficking.
Both were falsely arrested and charged with violations of the Dangerous Drugs Act.

Minucher prays for actual and compensatory damages. However, counsel for Scalzo filed a motion to
quash summons alleging that the defendant is beyond the processes of the Philippine court for the action
for damages is a personal action and that Scalzo is outside the Philippines.

TC denied the motion. CA dismissed the motion for lack of merit on the basis of the erroneous
assumption that because of the Diplomatic Note (advising the DFA that Scalzo is a member of the US
diplomatic mission investigating Minucher for drug trafficking), Scalzo is clothed with diplomatic immunity.

Issue:
Whether or not a complaint for damages be dismissed in the sole basis of a statement complained in a
Diplomatic Note.

Held:
No. Jurisdiction over the person of the defendant is acquired by either voluntary appearance or by the
service of summons. In the case, Scalzo's counsel filed a motion to quash, which, in effect already waived
any defect in the service of summons by earlier asking an extension to file time to file an Answer and
filing an Answer with Counterclaim.

The complaint for damages cannot be dismissed. Said complaint contains sufficient allegations which
indicate that Scalzo committed imputed acts in his personal capacity and outside the scope of his official
duties and functions. The TC gave credit to Minucher's theory that he was a victim of frame-up hence,
there is a prima facie showing that Scalzo could be held personally liable for his acts. Further, Scalzo did
not come forward with evidence to, prove that he acted in his official capacity.
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.
i) A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long as
it can be established that he is acting within the directives of the sending State. The cloak of protection is
removed the moment the foreign agent is sued in his individual capacity, as when he is sought to be
made liable for whatever damage he may have caused by his act done with malice or in bad faith or
beyond the scope of his authority or jurisdiction. In Minucherv. Court of Appeals, G.R. No. 142396,
February 11, 2003, it was sufficiently established that respondent Arthur Scalzo an agent of the US Drug
Enforcement Agency, was tasked to conduct surveillance on suspected drug activities within the country,
and having ascertained the target, to inform the local law enforcers who would then be expected to make
the arrest. In conducting this surveillance and later, acting as the poseur- buyer during the buy-bust
operation, and then becoming a principal witness in the criminal case against Minucher, Scalzo can
hardly be said to have acted beyond the scope of his official functions or duties. He should, therefore, be
accorded diplomatic immunity.

However, see Minucher v. Court of Appeals, G.R. No. 97765, September 24, 1992, where the Supreme
Court held that the act of private respondent Drug Enforcement Agent of the U.S. in the frame-up of
petitioner was unauthorized and could not be considered performed in the discharge of official functions,
despite a belated diplomatic note from the US Embassy; thus, suit against the private respondent was
upheld, being a suit against him in his personal and private capacity. See also Shauf v. Court of Appeals,
191 SCRA 713, where it was held that the immunity does not protect a public official who commits
unauthorized acts, inasmuch as such unauthorized acts are not acts of State. Accordingly, he may be
sued for such unlawful acts in his private capacity.