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No bail-out for Strauss-Kahn

The IMF boss and front-runner to be the French Socialist Party’s presidential candidate next year, Dominique Strauss-Kahn, has been refused bail by a court in New York, according to the BBC. As has been widely reported he’s facing a charge of attempted rape. It may be that the defence can appeal the decision on bail; but subject to that, he’ll be in custody until his next court appearance on Friday.

The refusal of bail may surprise many people. I’m no expert in the criminal law of New York, but I’m not as surprised as all that. He’s charged with a very serious offence, of course, and is a foreign national. While it’s true that Strauss-Kahn – or “DSK” as the French call him – could be required to surrender his passport and live at home in Washington or with his daughter in New York, the prosecution said in court (some of the proceedings were live on France 24) that they didn’t know how many diplomatic travel documents he has. He was arrested at JFK airport, on a plane to Paris.

Perhaps most critically, France does not extradite French citizens, under Article 696-4 of the Code de procédure pénale. That means that if somehow he did make it to France, as long as he stayed there he would be beyond the reach of the New York courts. He would be subject to possible prosecution in France, though, under Article 113-6 of the Code pénal.

So it’s not that surprising the prosecution has opposed bail entirely, and initially succeeded. Whether he remains in custody is another matter: when the position on travel documents is clear, the courts may be satisfied, as it was here in Julian Assange’s case, with a tough package of bail conditions.

On another legal point, there seems to be disagreement about whether any diplomatic immunity might be available to DSK. The BBC cite Jovan Kurbalija, director of DiploFoundation, as saying he may technically enjoy absolute immunity from prosecution for anything he does; Kurt Taylor Gaubatz of Old Dominion University thinks he only enjoys “acts” immunity – in other words, immunity covering any acts performed in his official capacity, rather than anything he might or might not have done in a hotel room. I’ve not been able to research this for myself yet – but I’d be surprised if he enjoyed more than “acts” immunity. In any event, both experts agree the IMF board can waive any immunity he may enjoy.

Everything seems to be collapsing around DSK: it seems he may now also face proceedings in France about a previous incident, years ago. He must be presumed innocent of course, but his story shows on a grand scale how merely being accused of a serious offence can turn your life upside down.

It’s difficult to see how he can recover politically from this, even if he’s acquitted. The primaries for the French socialist “nomination” come in October. DSK’s momentum having now been arrested, a woman – either Martine Aubry or Ségolène Royal – may well be the political beneficiary.

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  1. Mr Strauss-Kahn has been accused of illegally imprisoning and assaulting another person. As head of the IMF he falls into the category of those enjoying diplomatic immunity made available by international treaty. He also seems to fall into categories of office-holder specifically given diplomatic immunity by the United States itself. Presumably he has diplomatic immunity in France as well even though he is liable to prosecution there, for acts committed anywhere, without it. Who has waived his immunity?

    Do the US rules on diplomatic immunity outrank those of the international treaties, and the US has? France can’t unless it, too, has a separate set of rules for international treaty-derived immunity that take precedence. It can’t even try him in France. Has he waived it? Individuals cannot usually waive their own immunity, sovereigns do that. And since when has any international organisation become a sovereign?

    Yet it does seem to have been waived. The notion of immunity only on official business is very flaky – you cannot arrest and imprison someone and only then determine whether they are in an immunity situation or not. The prisoner is already stripped of any immunity on your decision alone.

    What is happening to Strauss-Kahn shows that notions of immunity are a sham.

  2. Interesting note on the BBC News 24 pictures of Stauss Kahn being led back from the aircraft:

    ‘in France we would not be able to show you this due to French privacy laws’.

    An accurate comment? I think it was by a French journalist.

    One to think on.

  3. That is a good point, Matt – and I agree, worth thinking about.

    I don’t think it’d be a great idea for pictures like that to be shown in England (if, say, DSK had been arrested here at Heathrow). I don’t think that’d be because of privacy law at all, though – certainly there’s a public interest in knowing about the arrest of a politician for attempted rape. I think the concern here would be with contempt of court, and the risk that images of the accused in handcuffs might be prejudicial.

  4. Anybody who is arrested in the US will be put into handcuffs, hence a picture showing a person in handcuffs is by no means prejudicial, it is part of the process.

    Furthermore, arraignment photos are usually available in the US within hours on the Internet. Again, one could falsely argue that those would be prejudicial.

    Such photos are no more prejudicial than a story in the newspaper that someone has been arrested, or the fact that someone is indicted. Only the jury (or the judge in the unlikely case that the defendant waives their right to jury trial) determines innocence or guilt.

  5. @Carl

    If reporting news events played out in a public place in front of the world by international political figures is potential contempt of court, then our ideas of CofC are even madder than I thought they were.

    But then I argue that we need to move in the American direction not the French one on privacy.

    … and that it’s time we started having the Privacy Law debate around the impact of sweeping laws when applied to important news stories, and the lives of sources which would be placed at risk by forced advanced disclosure, rather than through thoughts about which Home Counties Hero is doing what with which model or hooker this week.

    I have a piece on the point in my first comment over at Anna Raccoons nest (den?) later.


    in places like Russia rather than

  6. Condivido perfettamente le opinioni dei commentatori anche se pero credo sia scorretto cmq mostrare la faccia dell’accusato.

    La legge dice innocente fino a prova contraria . Mostrare le immagini di una persona in manette segna profondamente l’opinione pubblica di quella persona.

    Abbiamo aperto un nuovo forum su discussioni generali e su Panama. Mi farebbe piacere se partecipaste.

    questo è il link

    grazie a presto


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    […] In the meantime, you can follow Carl Gardner’s blog for legally literate reporting on the Strauss-Kahn case. […]

  • When Privacy Law prevents reliable reporting | The Wardman Wire May 22, 2011

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