Cap. 557F 《領事關係(增補特權及豁免)(俄羅斯)令》Consular Relations (Additional Privileges and Immunities) (Russia) Order

生效中

版本日期: 2020-02-06

Cap. 557E

Cap. 557G

Consular Relations (Additional Privileges and Immunities) (Russia) Order

(Cap. 557, section 4(1))

(Enacting provision omitted—E.R. 1 of 2020)

[17 July 2009]

(Format changes—E.R. 1 of 2020)

1.

(Omitted as spent—E.R. 1 of 2020)

2. Interpretation

In this Order—

Convention (《條約》) means the Consular Convention between the People’s Republic of China and the Russian Federation done at Moscow on 25 April 2002; relevant provisions of the Convention (《條約》有關條文) means the provisions of paragraph 3 of Article 20, Article 21, paragraphs 1, 4 and 5 of Article 28, Article 29, paragraphs 2, 3, 4 and 5 of Article 30, Article 33, Article 34, paragraphs 1 and 3 of Article 35, Article 37, paragraphs 1 (except subparagraphs (a) and (b)) and 2 of Article 39, Article 40 and Article 42 (except subparagraph (a)) of the Convention, the English translation of which is set out in the Schedule.

3. Additional privileges and immunities

It is declared that the additional privileges and immunities accorded to a consular post of the Russian Federation, or to persons connected with the consular post, or to both, under the relevant provisions of the Convention, as read with the provisions of Article 1 (except subparagraphs (b), (c) and (i)), and Articles 41, 43 and 44, of the Convention, the English translation* of which is set out in the Schedule, have the force of law in Hong Kong.

This English translation text has been prepared by the Chief Secretary for Administration’s Office from the Chinese language text of the Convention. It has been vetted by the Department of Justice.

Schedule — Provisions of the Convention referred to in this Order

[ss. 2 & 3]

CHAPTER I — DEFINITIONS

Article 1Definitions

For the purposes of the present Convention, the following expressions shall have the meanings hereunder assigned to them:

(a) “consular post” means any consulate-general, consulate, vice-consulate or consular agency;

..........

(d) “consular officer” means any person, including the head of the consular post, who is charged by the sending State with the exercise of consular functions;

(e) “member of the administrative and technical staff of the consular post” means any person who performs administrative or technical services at the consular post;

(f) “member of the service staff of the consular post” means any person who performs domestic service at the consular post;

(g) “members of the consular post” means consular officers, members of the administrative and technical staff of the consular post and members of the service staff of the consular post;

(h) “family members” means the spouse, minor children and parents who live in the same household with and are dependent on a member of the consular post;

..........

(j) “consular premises” means buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used exclusively for the purposes of the consular post;

(k) “consular archives” means all the papers, documents, correspondence, books, films, audio tapes, video tapes, electronic data carriers and registers of the consular post, together with the ciphers and codes, the card-indices and any article of furniture intended for their protection or safe-keeping;

(l) “national of the sending State” means any natural person having the nationality of the sending State, and, when applicable, also means any juridical person of the sending State;

(m) “vessel of the sending State” means any vessel registered in the sending State pursuant to its law and sailing under the flag of the sending State, excluding military vessels;

(n) “aircraft of the sending State” means any aircraft registered in the sending State and bearing that State’s registration marks, excluding military aircraft.

CHAPTER III — CONSULAR FUNCTIONS

Article 20Assistance to wrecked vessels of the sending State

If a wrecked vessel of the sending State or its equipment or cargo is found on shore, in the coastal area or within the inland waters of the receiving State, or is brought into a port of the receiving State and neither the master nor the owner of the vessel, nor any representative of the vessel company or any agent of its insurance company is present or is in a position to take measures for the preservation or disposal of the property, the competent authorities of the receiving State shall inform the consular post as promptly as possible. A consular officer may, on behalf of the owner of the vessel of the sending State, take measures for the protection and disposal of the wrecked vessel and its property.

Article 21Aircraft of the sending State

The provisions of Articles 18, 19^@ and 20^* of this Convention shall apply to aircraft of the sending State provided that such application does not contravene the provisions of bilateral agreements in force or of multilateral agreements to which the Contracting Parties are parties.

CHAPTER IV — FACILITIES, PRIVILEGES AND IMMUNITIES

Article 28Inviolability of the consular premises

Consular premises shall be inviolable to the extent provided in this Article.

..........

The consular premises, their furnishings, the property of the consular post and its means of transport shall be immune from any form of requisition for purposes of national defence or public utility. If expropriation of such property is necessary for such purposes, all possible measures shall be taken to avoid impeding the performance of consular functions, and prompt, appropriate and effective compensation shall be paid to the sending State.

The provisions of paragraphs 1 and 4 of this Article shall also apply to residences of consular officers.

Article 29Inviolability of the consular archives

The consular archives shall be inviolable at all times and wherever they may be.

Article 30Freedom of communication

The official correspondence of the consular post shall be inviolable. Official correspondence means all correspondence relating to the consular post and its functions. The consular bag shall neither be opened nor detained. The consular bag shall bear visible external marks of its character and may contain nothing other than official correspondence, official documents and articles intended exclusively for official use.

The consular courier shall only be a national of the sending State, and shall not be a permanent resident of the receiving State. He shall be provided with an official document certifying his status and indicating the number of consular bags. The consular courier shall enjoy the same rights, facilities, privileges and immunities as any diplomatic courier.

The sending State, its diplomatic mission and consular post may designate consular couriers ad hoc; in such cases the provisions of paragraph 3 of this Article shall also apply except that the privileges and immunities therein mentioned shall cease to apply when such courier has delivered the consular bag to the destination.

A consular bag may be entrusted to the master of a vessel of the sending State or captain of an aircraft of the sending State. He shall be provided with an official document indicating the number of consular bags. However, he shall not be considered as a consular courier. By arrangement with the competent authorities of the receiving State, a consular officer may directly and freely collect the consular bag from or deliver it to him.

Article 33Personal inviolability of consular officers

Consular officers shall enjoy personal inviolability and shall not be liable to arrest or detention. The receiving State shall treat consular officers with due respect and shall take appropriate measures to prevent any attack on their personal freedom and dignity.

Article 34Immunity from jurisdiction

A consular officer shall be immune from the judicial and administrative jurisdiction of the receiving State, except in civil proceedings:

(a)

arising out of a contract concluded by the consular officer in which he did not contract expressly as an agent on behalf of the sending State;

(b)

by a third party for damage caused by a vehicle, vessel or aircraft in the receiving State;

(c)

concerning private immovable property situated in the territory of the receiving State, unless the consular officer holds it on behalf of the sending State and for the purposes of the consular post;

(d)

involving private succession;

(e)

arising out of any professional or commercial activity exercised by the consular officer in the receiving State outside his official functions.

No measures of execution shall be taken by the receiving State in respect of a consular officer except in the cases set out in paragraph 1 of this Article and provided that the measures can be taken in the cases set out in paragraph 1 of this Article without infringing the inviolability of his person or of his residence.

Members of the administrative and technical staff of the consular post or members of the service staff of the consular post shall be immune from the jurisdiction of the judicial or administrative authorities of the receiving State in respect of any act in the performance of their official functions, except in civil proceedings referred to in subparagraphs (a) and (b) of paragraph 1 of this Article.

Article 35Liability to give evidence

A consular officer is under no obligation to give evidence as a witness.

..........

A member of the administrative and technical staff of the consular post or a member of the service staff of the consular post is under no obligation to give evidence concerning matters connected with the exercise of his functions or to produce any official correspondence or documents relating thereto. He is entitled to decline to give evidence as expert witness with regard to the law of the sending State.

Article 37Exemption of properties from taxation

The receiving State shall exempt the following from all dues and taxes:

(a)

consular premises and residences of the members of the consular post acquired in the name of the sending State or its representative and transactions or instruments related thereto;

(b)

consular facilities and means of transport acquired exclusively for official purposes as well as their acquisition, possession or maintenance.

The provisions of paragraph 1 of this Article shall not apply in respect of:

(a)

charges levied for specific services;

(b)

dues and taxes collectable under the laws and regulations of the receiving State from a person who concludes a contract with the sending State or its representative.

Article 39Exemption from customs duties and customs inspection

The receiving State shall, in accordance with its laws and regulations, permit entry and export of and grant exemption from all customs duties, dues and taxes and related charges other than charges for storage, cartage and other similar services, on:

..........

(c)

articles imported at the time of first installation for the personal use of a member of the administrative and technical staff of the consular post, including household articles intended for his establishment.

Articles referred to in subparagraph . (c) of paragraph 1 of this Article shall not exceed the quantities necessary for direct use by the person concerned.

Article 40Privileges and immunities of family members

Subject to the provisions of Article 41 of this Convention, family members of a consular officer, family members of a member of the administrative and technical staff of the consular post and family members of a member of the service staff of the consular post shall enjoy respectively the privileges and immunities to which the consular officer, the member of the administrative and technical staff of the consular post and the member of the service staff of the consular post are respectively entitled under the provisions of this Convention.

Article 41Persons who shall not enjoy privileges and immunities

Members of the administrative and technical staff of the consular post and members of the service staff of the consular post who are nationals or permanent residents of the receiving State shall not enjoy the privileges and immunities provided for in this Convention, subject to the provisions of paragraphs 2^# and 3 of Article 35 of this Convention.

Family members of a member of the consular post who is a national or permanent resident of the receiving State shall not enjoy the privileges and immunities provided for in this Convention.

Article 42Estate of member of the consular post

In the event of the death of a member of the consular post or his family members, the receiving State shall:

..........

(b)

exempt the movable property of the deceased from estate duties and all other duties concerned.

Article 43Beginning and end of privileges and immunities

Every member of the consular post shall enjoy the privileges and immunities provided for in this Convention from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when he enters on his duties with the consular post.

Family members of a member of the consular post shall enjoy the privileges and immunities provided for in this Convention from the moment from which he enjoys the privileges and immunities in accordance with the provisions of paragraph 1 of this Article, or from the moment of their entry into the territory of the receiving State or from the moment of their becoming such family members in the case of their entry or becoming such family members after the date from which he enjoys the privileges and immunities, whichever is the latest.

When the functions of a member of the consular post have come to an end, his privileges and immunities and those of his family members shall cease at the moment when the person concerned leaves the territory of the receiving State or on the expiry of a reasonable period in which to do so, whichever is the sooner, but shall subsist until that time, even in case of armed conflict. The privileges and immunities of the family members of a member of the consular post shall come to an end when they cease to be the said family members. However, if such persons intend to leave the receiving State within a reasonable period thereafter, their privileges and immunities shall subsist until the time of their departure.

With respect to acts performed by a member of the consular post in the exercise of his functions, immunity from jurisdiction shall continue to subsist without limitation of time.

In the event of the death of a member of the consular post, his family members shall continue to enjoy the privileges and immunities accorded to them until they leave the territory of the receiving State or until the expiry of a reasonable period in which to do so, whichever is the sooner.

Article 44Waiver of privileges and immunities

The sending State may waive any of the privileges and immunities enjoyed by a member of the consular post under Articles 33, 34 and 35 of this Convention. The waiver shall in all cases be explicit and shall be communicated to the receiving State in writing.

The initiation of proceedings by a member of the consular post in a matter where he might enjoy immunity from jurisdiction provided for in this Convention shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim.

The waiver of immunity from jurisdiction for the purposes of civil or administrative proceedings shall not be deemed to imply the waiver of immunity from the execution of judicial decision. In respect of such execution, a separate waiver of immunity in writing shall be necessary.

Editorial Note: ^@ Articles 18 and 19 read as follows— 1.A consular officer shall be entitled to render assistance to vessels of the sending State which are in the inland waters or territorial waters of the receiving State, as well as to their masters and members of the crew, and also:(a)upon receipt of the agreement of the competent authorities of the receiving State, to board a vessel, question the master or a member of the crew, inspect the vessel’s documents, receive reports on the vessel, cargo and voyage, and render assistance in the entry into and the departure of a vessel and its stay in the port;(b)without prejudice to the powers of the competent authorities of the receiving State, to investigate any incident which has occurred during the voyage;(c)to assist in settling disputes between the master and a member of the crew, including disputes about wages and service contracts;(d)to receive visits from the master or a member of the crew, and when necessary, arrange medical treatment for the master, a member of the crew or a passenger of the vessel, and take measures to assist them in leaving the receiving State;(e)to receive, draw up, authenticate of prolong any kind of application or other document in accordance with the laws and regulations of the sending State in regard to a vessel of the sending State or its cargo;(f)to settle other issues relating to a vessel which are entrusted by the competent authorities of the sending State. 2.The master and a member of the crew may contact a consular officer. They may go to the consular post provided that the laws and regulations of the receiving State are complied with. 3.The consular officer shall be entitled, in accordance with the laws and regulations of the receiving State, to appear together with the master or any member of the crew before the court or other authorities of the receiving State in order to render them assistance. 1.In case the courts or other competent authorities of the receiving State intend to take any compulsory measure or to conduct an official investigation with regard to a vessel of the sending State staying in the inland waters or territorial waters of the receiving State, the consular post shall be notified in advance so that the consular officer or his representative can be present when such an action is being taken. If the consular officer is not present when such a measure is being taken, the competent authorities of the receiving State shall, upon the request of the consular officer, notify the consular post of such information about the action in writing. If the urgency of the matter prevents prior notification to the consular officer, the competent authorities of the receiving State shall notify the consular post immediately after such an action has been taken even without the request of the consular officer and promptly provide the consular officer with full information of the action upon his request.2.The provisions of paragraph 1 of this Article shall also apply to similar actions taken on shore by the competent authorities of the receiving State against the master of a vessel or any member of the crew.3.The provisions of paragraphs 1 and 2 of this Article shall not apply to any routine inspection in relation to customs, quarantine or border check, etc. and other measures taken by the competent authorities of the receiving State upon the request or with the consent of the master of a vessel, nor to measures taken by the competent authorities of the receiving State to ensure navigation safety on sea or the preventing of pollution of waters.4.Except upon the request or with the consent of the master of a vessel or of a consular officer of the sending State, the competent authorities of the receiving State shall not interfere in the internal affairs of the vessel of the sending State, when the peace, security and public order of the receiving State are not violated.”. Paragraphs 1, 2, 4 and 5 of Article 20 read as follows— “1.In case a vessel of the sending State suffers shipwreck, runs aground or suffers other material accident within the inland waters, territorial waters or adjacent waters of the receiving State, the competent authorities of the receiving State shall, as soon as possible, notify the consular post about the matter and notify it of the measures taken for rescuing the passengers and crew aboard the vessel, the vessel, its cargo and other property. 2.A consular officer shall be entitled to take measures for providing assistance to any wrecked vessel of the sending State, its crew and passengers, and may, for this purpose, request the authorities of the receiving State for assistance. 4.The competent authorities of the receiving State shall provide all necessary assistance to a consular officer in salvaging a vessel of the sending State. 5.No customs duty or similar charge shall be levied by the receiving State against a wrecked vessel of the sending State and its cargo, equipment and food if they are not for sale or for use in the receiving State.”. ^# Paragraph 2 of Article 35 reads as follows— “2.Members of the administrative and technical staff of the consular post and members of the service staff of the consular post may be called upon to give evidence in the course of judicial or administrative proceedings of the receiving State. Members of the administrative and technical staff of the consular post and members of the service staff of the consular post shall not, except in the cases mentioned in paragraph 3 of this Article, decline to give evidence.”.