Austrian Embassy in a tenancy lawsuit

[sparklingway]

Do tenancy laws apply to Austrian embassy?​

Legal battle over premises intensifies

Wednesday, June 16, 2010
By Mariana Baabar

ISLAMABAD: A legal battle between the embassy of Austria and the legal heirs of Agha Shahi is continuing for the past several years and despite the demand of the heirs, the Austrian Ambassador refuses to vacate their property.

Legal experts say the government of Austria is in illegal custody of a house belonging to a Pakistani national. In this context they have referred the precedent regarding tenancy laws, contained in the Supreme Court judgement of 1981 (PLD 1981 SC 377) Qureshi vs USSR.

“I have just come from a meeting with Sharifuddin Pirzada. He has told me that it is unheard of for a foreign embassy to behave in this manner. He also said that there is a precedent to get them abide by the tenancy laws and that it is contained in the Supreme Court judgement of 1981 (PLD 1981 SC 377) Qureshi VS USSR. I believe that the Austrians are also in violation of the European human rights convention by denying an EU citizen, which two of the heirs are, of his right to live in his own home. I intend to go for damages in Vienna”, Ambassador Zafar Hilaly, one of the heirs, told The News from Karachi.

The Islamabad case has become the most talked about story abroad, and one report from Israel by Haggai Carmon cites the example of a case with some factual similarities which was heard by the Israeli courts in Her Majesty the Queen in Right of Canada v. Edelson et. al. The Canadian ambassador refused to vacate his rented home in Israel claiming he had an option to extend his lease. When sued, he claimed diplomatic and sovereign immunity. The Magistrate’s Court and the District and Supreme Courts respectively disagreed and ordered his eviction. All courts ruled that real estate transactions are commercial in nature and cannot enjoy sovereign immunity. Furthermore, since the building was used for the ambassador’s home, and not as the Canadian embassy, diplomatic immunity under the Vienna Diplomatic Relations Convention could not be raised as well.

Agha Shahi died in 2006 and the Court declareded 10 persons as legal heirs of House No.13, St 1, F-6/3, Islamabad. “The Austrians refused to recognise the Court declared heirs as legal, although the CDA did and has transferred the property on our names (10 heirs). The civil judge/rent controller Islamabad has accepted the claim and granted us succession certificates. The Austrian claim was that the Islamabad Tehsildar court had no such right. They then claimed that there were other heirs but when the court asked them to be produced they could not”, says Zafar Hilaly.

Shahi’s legal heirs won an order of eviction for the home once rented to the Austrian Embassy. The Embassy’s most recent lease ended on March 7, 2008. A court order issued on August 4, 2009 stated that following the expiry of the last lease the Embassy became an illegal occupant of the property. According to the heirs not only has the Austrian Embassy refused to vacate the premises, it has not paid rent since July 2008.

After this the Austrian Ambassador claimed diplomatic immunity. When approached for comments, the Ambassador’s office told The News that they would not comment on the issue. The Foreign Office is also involved in the matter and its spokesman told The News, “We are in touch with the Austrian Embassy and hope the matter would be resolved in the spirit of cooperation”.

But several officials in the ministry told The News that it was for the media now to highlight the issue to get it solved. “There are some who are quoting the 1961 Vienna Convention that gives diplomats total immunity, but we have precedents and Pakistan’s courts should use these to vacate the premises. We strongly feel that after court orders Austria should vacate the house. Voices have been raised to declare the diplomat persona non grata, but we also have to look into the issue of our bilateral relations and this cannot be done in the larger national interest “, says one official.

The Foreign Office feels that no country can unilaterally alter the provisions of the Vienna convention, which take precedence over legislation or procedures but another official pointed out that, “Austria is a rich country and it should be sensitive to public opinion in Pakistan. Their reluctance to vacate the place is not winning them any admiration. They should be able to find another suitable place. Honoring the court’s decision will put them in good stead in Pakistan”.

“Twice warrants of eviction have been issued by two different civil judges of Islamabad. Bailiffs have visited the premises to get them to leave. They then accused the civil judge of “bias”. When that claim was rejected they appealed to the Additional Sessions judge. He quoted the Diplomatic Privileges Act 1972, saying he had had no jurisdiction to hear the case. Of course he is wrong and we have a welter of cases and the 19981 Supreme Court decision to show that in civil commercial contracts and particularly tenancy agreements with private citizens no such claim can be made by a foreign embassy”, adds Hilaly.

Then the court denied the Embassy immunity on March 17, 2010 stating: “The federal government may exempt any building or buildings; however, the provisions of this ordinance (IRRO 2001) could not be applied as no such order or notification has yet been issued by the federal government, hence, petitioner/judgment debtor cannot claim immunity under Section 86-A CPC as the provisions of CPC are not applicable to rent application”.

According to an earlier report by The News, “The order of the court of rent controller dated August 4, 2009 states: “On grounds it is mentioned that the agreement dated 25-5-2006 has expired on 3-7-2008, which has not been further extended nor the petitioner intends to further rent out the property. That after the expiry of lease agreement the Embassy of Austria become illegal occupant of the demised premises, outstanding against the embassy despite a written request and legal notices the embassy has not paid the rent; that the property is required by the petitioner for his personal use; that the embassy showed reluctance to vacate the demised premises with one or the other pretext.”

Lately, the heirs have been told that the Austrian Ambassador is leaving the country. “Our fears now are: will we be paid the rent for all those years or will we be left high and dry once the Ambassador leaves? Many diplomats in the EU have spoken to us privately and sympathised with us saying their hands were tied”, says one heir.

Meanwhile Zafar Hilaly told a press conference, “They asked me to solicit a meeting with the Ambassador. I replied that I will not beg a thief and a trespasser to return my property. This caused some consternation! Imagine! To what pass we are reduced. I had earlier made 16 trips to Islamabad for hearings that would get postponed because the judges are busy!! The Foreign Office can certainly do more”.