## Facts

- German national Muller Werner and his wife divorced.
- Custody of their child, Maria Luisa, became the subject of inconsistent judgments: an Italian court granted custody to the mother, while a German court granted custody to the father.
- Maria Luisa had dual nationality (Italian and German) and lived with her mother in Genoa, Italy.
- The mother informed the German Consul General in Genoa, Dr. Rissmann, and local authorities that she opposed the issuance of a German passport for Maria Luisa while the child was in Italy.
- Despite that objection, Rissmann issued a German passport (and related travel documentation) in Maria Luisa’s name.
- Rissmann also assisted the father with practical arrangements that enabled Maria Luisa to leave Genoa discreetly and travel to Germany to join him (events described in available summaries as occurring in 1966).
- Italian authorities initiated criminal proceedings against Rissmann for violations of Italian law connected to assisting the child’s removal from Italy in the context of the custody dispute.
- Rissmann moved to dismiss, arguing that his conduct was protected by consular immunity because it was performed as part of his consular functions.
- The Tribunal of Genoa rejected the immunity claim (decision reported in 1970), and the matter later reached the Italian Court of Cassation, which addressed the same immunity question (decision reported in 1972 in the International Law Reports entry for the case).

## Issues

1. Whether, under the Vienna Convention on Consular Relations (Articles 5 and 43) and applicable law, a consul is immune from the receiving State’s criminal jurisdiction for issuing a passport and assisting a minor’s departure in a custody dispute.
2. Whether Italy, as the forum and receiving State, could treat a dual-national minor resident in Italy as Italian for purposes of applying Italian law in the custody and removal context, notwithstanding the child’s German nationality and a German custody judgment.

## Decision

- The Italian courts treated consular immunity as strictly functional: it applies only to acts performed in the exercise of consular functions.
- The courts concluded that the actions attributed to Rissmann—issuing travel documents in these circumstances and helping to arrange the child’s discreet departure to the father—were not protected as acts performed in the exercise of consular functions within the meaning of Article 43 of the Vienna Convention on Consular Relations.
- Because the conduct was not covered by functional consular immunity, Italian criminal jurisdiction could proceed.
- On the nationality point, the courts approached the matter on the basis that Italy could give priority to its own nationality for a dual national present and resident in Italy, and could apply Italian law accordingly in addressing the child’s status and protection.

## Legal Principles

- Consular immunity is immunity ratione materiae: it shields a consular officer only for acts performed in the exercise of consular functions, not for all acts performed while in office.
- Whether particular conduct qualifies as an “act performed in the exercise of consular functions” (VCCR Article 43) depends on the nature and context of the conduct, not merely on the fact that it resembles a consular task (such as issuing travel documents) listed among consular functions (VCCR Article 5).
- A receiving State’s courts may assess for themselves whether the conduct relied upon for immunity falls within protected consular functions for purposes of domestic proceedings.
- In situations of multiple nationality, and especially where a dual national is resident in the forum State, the forum State may treat the individual as its national for the purpose of applying its law and regulating matters occurring in its territory, consistent with generally recognized approaches reflected in instruments such as the 1930 Hague Convention on nationality conflicts.

## Conclusion

Re Rissmann holds that consular immunity is limited to official acts that genuinely qualify as the exercise of consular functions under the Vienna Convention on Consular Relations, and that a consul who issues a passport and assists in a child’s discreet departure amid a custody dispute may be subject to prosecution in the receiving State when the conduct is found to fall outside that protected category; the case also supports Italy’s ability to give priority to its own nationality when a dual-national child resides within its territory.


Re Rissmann, 1 Italian Yearbook of International Law 254 (1970)