The Supreme Court, through a judgement of Section One of the Court of Administrative Proceedings, has ruled that it lacks the jurisdiction to reach a decision on the appeal lodged by the former Latvian consul in Spain, against the Ministry of Foreign Affair’s note verbale sent in September 2016, withdrawing the consul’s right to perform consular duties in Spain.
According to the court judgement, withdrawing the powers of consular delegates from other countries in Spain is the government’s competence within the framework of international law. Decisions of this kind, affecting the essence of relations between foreign states, cannot therefore be contested through the administrative court system.
The essence of international relations is beyond the remit of the administrative courts.
In September 2016, the department then headed by José Manuel García-Margallo, declared Xabier Vinyals, Latvia’s honorary consul in Barcelona, “a persona non grata for the performance of consular duties” and withdrew the exequatur when, coinciding with La Diada (Catalonia’s National Day), he raised an Estelada (Catalan independence flag) on the consulate’s facade. The decision was notified via a note verbale sent to Latvia’s ambassador in Spain, Ms. Argita Daudze. The note reminded the ambassador that consulates are entitled to use their premises to display the coat-of-arms or the flag of the state they represent, but not the flags of third parties, and much less so flags of an unofficial nature, which constitute support for an illegal process in favour of the independence of part of the territory of the host country.
The Ministry of the Interior considered that the support Vinyals showed for the independence process in his capacity as consul was in breach of article 55 of the 1963 Vienna Convention on Consular Relations, which states “The consular premises shall not be used in any manner incompatible with the exercise of consular functions”.
In his appeal, Vinyals argued that the note verbale revoking the exequatur was unlawful and constituted an attack on his honour, protected by article 18 of the Spanish Constitution, Following an analysis of the action being contested, the court concludes that the decision made by Spain’s Executive Power cannot be subject to the control of the administrative courts “because it is a decision that affects the very essence of the international relations between two sovereign states, an area that has traditionally been considered beyond the jurisdiction of the administrative court system”.
Matter governed by international law
By virtue of article 12 of the Vienna Convention on Consular Relations of 24 April 1963, the court states that “The head of a consular post is admitted to the exercise of his functions by an authorization from the receiving State termed an exequatur, whatever the form of this authorization”, going on to say “A State which refuses to grant an exequatur is not obliged to give to the sending State reasons for such refusal”, with article 23 of said treaty adding “The receiving State may at any time notify the sending State that a consular officer is persona non grata or that any other member of the consular staff is not acceptable. In that event, the sending State shall, as the case may be, either recall the person concerned or terminate his functions with the consular post”.
Regarding the alleged attack on his honour argued by Vinyals, the Supreme Court states that it is not something that concerns him personally, as the recipient of the note verbale was not the former consul, but instead the State that appointed him, as he was acting merely as an agent of that state, and although there may have been some injury to his right to honour, that injury “could not be attributed to the withdrawal of the exequatur, as the mere fact of adopting a legal decision that is unfettered and does not need any explanation cannot be considered an attack on someone’s honour, and even less so when it involves the honour of someone who is acting as an agent of a State, and not as a private individual”.
To conclude, it states that that the restitution of the fundamental right that the former consult claims to have been breached “should be required of the person that has effectively caused that violation, and through the corresponding process, which cannot involve –for all the reasons given so far- an appeal made through the administrative court system, against the note verbale delivered by Spain’s Ministry of Foreign Affairs and Cooperation to the Latvian Embassy, notifying it of the cancellation of the appellant’s exequatur as Latvian Consul in Spain”.