|
The Vienna Convention on Consular Relations (VCCR): Litigation Strategies (Last updated July 2001) Sandra L. Babcock 2520
Park Avenue South Minneapolis,
MN 55404 tel.
612/721-9414 fax
612/721-4075
I. Introduction A. BackgroundIII. Preparing for Pre-Trial Hearings A. Seeking the Assistance of Foreign GovernmentsARTICLE 36 BIBLIOGRAPHY Books and Law Review Articles Reports Magazine and Newspaper Articles On-line Material ARTICLE 36 AND U.S. LAW 1. Prejudice Standard 2. Cases expressly holding that Article 36 confers standing on individuals to invoke treaty rights: 3. Cases implying that individuals have standing, but denying relief on other grounds: Appendix I: Excerpts from the Vienna Convention on Consular Relations Article 5: Consular Functions Article 36: Communication and Contact With Nationals of the Sending State Appendix II Mandatory Notification Countries in the USA (Bilateral Agreements) Appendix III Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes Additional Resources LAGRAND CASE: SUMMARY OF ICJ’S KEY FINDINGS I. Introduction The Vienna Convention on Consular Relations (VCCR) is a ratified,
multilateral treaty that grants all foreign nationals arrested in the
United States a right to communicate and correspond with their consular
officials.
In addition, the VCCR requires that arresting authorities notify
all foreign nationals “without delay” of their rights under the
treaty.
Unsurprisingly, law enforcement agencies have ignored their
obligations under the VCCR for the last three decades. In recent
years, there has been a spate of litigation over the rights enshrined in
the VCCR, particularly in capital cases involving foreign nationals. The courts have struggled with two issues raised by
defendants asserting their rights under the VCCR. The first is
whether the VCCR confers rights on individuals that may be invoked in
criminal proceedings. Thus far, the courts are split on
whether defendants have standing to assert their rights under the
Convention; most courts have intentionally refrained from deciding the
question. The second issue is whether an individual is entitled to a legal remedy for the violation. Many attorneys have argued that courts should apply the exclusionary rule and suppress evidence obtained after the violation. Unfortunately, the great majority of courts have held that the exclusionary rule does not apply to a violation of Article 36. I am not aware of any court that has addressed the remedy of vacating a death sentence as a violation of international law. See discussion infra. The courts have largely overlooked the best, and most
comprehensive, judicial opinion regarding the enforcement of the Vienna
Convention in death penalty cases. On October 1, 1999, the Inter-American
Court of Human Rights concluded that the execution of a foreign national
violates international law, if that person was not afforded the right to
consular notification and assistance. OC-16/99, Inter-Am. Ct. H.R.
(October 1, 1999)(available at
http://coreteidh-oea.nu.or.cr/ci/PUBLICAT/SERIES.A/A_16_Ing.H., or through
the website of the Organization of American States at www.oas.org). On June 27, 2001, the International Court of Justice (“World Court” or “ICJ”) issued its first opinion regarding the rights established by article 36. LaGrand Case (Germany v. United States), 2001 I.C.J. 104 (Judgment)[hereinafter “LaGrand”]. The ICJ’s judgment is sure to affect future court rulings in the United States, since the decision conflicts in important respects with current U.S. case law. Among other things, the ICJ held that article 36 gives rise to individual rights. The ICJ also held that in cases involving “prolonged detention or severe penalties,” foreign nationals are entitled to more substantial remedy than a mere apology from the State Department. Finally, the ICJ concluded that the procedural default rules, as applied in the case of the LaGrand brothers, conflicted with the United States’ obligation to give full effect to the purposes of article 36. This decision is discussed in more detail, below. The United States Department of State has taken the
position that there is no legal remedy available for individuals whose
rights are violated under the treaty. In December 1998, however, Secretary of
State Madeleine Albright urged Texas Governor George Bush to commute the
death sentence of Canadian Joseph Stanley Faulder as a remedy for the VCCR
violation.
Governor Bush ignored her plea, and Mr. Faulder was executed. It appears the Bush administration will interpret the
LaGrand decision quite narrowly. In the case
of Gerardo Valdez, a Mexican national scheduled for execution in Oklahoma
in July 2001, the State Department advised Governor Keating to consider
whether the article 36 violation prejudiced Valdez at trial. The State
Department refused to advise Keating that Valdez’s sentence be commuted to
life in prison, even though the article 36 violation in Valdez’s case was
arguably more compelling than in LaGrand.
Although the Oklahoma Pardon and Parole Board had recommended
commutation of Valdez’s sentence to life imprisonment, Keating rejected
that recommendation and denied clemency. The Oklahoma Court of Criminal Appeals
will soon set a new execution date for Valdez, and his lawyers will now
seek enforcement of LaGrand in the courts.
II. Legal Arguments In 1963, the United States and several other nations
signed the Vienna Convention on Consular Relations (“VCCR”). The treaty
codified long-standing customs regarding consular relations, and provided
important rights to foreign nationals facing criminal prosecution outside
their native land. Vienna Convention on Consular
Relations, April 24, 1963, TIAS 6820, 21 U.S.T. 77. The United
States Senate ratified the treaty in 1969; as a result, it became binding
on the states under the Supremacy Clause of the United States
Constitution.
U.S. Const. Arts. VI, cl. 2. See also Foster & Elam v. Neilson, 27 U.S. (2
Pet.) 252, 314 (1829). Federal regulations were subsequently adopted to
ensure compliance with the consular notification provisions of the
VCCR. 8
C.F.R. 242.2 (g); 62 Fed. Reg. 10312, 10360 (1997)(INS guidelines); 28
C.F.R. 50.5(a); 32 Fed. Reg. 1040 (1967)(FBI arrest
procedures). Article 36(1)(b) of the Vienna Convention requires that when a foreign national is detained, the country detaining him must give him immediate notice of his right to see and communicate with his consular representative: (b) if
he so requests, the competent authorities of the receiving State shall,
without delay, inform the consular post of the sending State if, within
its consular district, a national of that State is arrested or committed
to prison or to custody pending trial or is detained in any other
manner.
Any communication addressed to the consular post by the person
arrested in prison, custody or detention shall also be forwarded by the
said authorities without delay. The said authorities shall inform the person
concerned without delay of his rights under this sub-paragraph. Vienna Convention, art. 36(1) (emphasis added). In interpreting this provision, the United States Department of State has recognized that The [Vienna Convention] requires that a foreign national be notified “without delay” of the right to consular assistance. . . In the case of an arrest followed by detention, the Department of State would ordinarily expect the foreign national to have been advised of the possibility of consular notification by the time the foreign national is booked for detention. U.S. State Department, Consular Notification and Access (1998) (www.state.gov/www/global/legal_affairs/ca_notification/part3.html#when). Article
36(1)(c) grants consular officers the right to visit, converse and
correspond with a national who is in detention and to arrange for his
legal representation: (c) consular
officers shall have the right to visit a national of the sending State who
is in prison, custody or detention, to converse and correspond with him
and to arrange for his legal representation. They shall
also have the right to visit any national of the sending State who is in
prison, custody or detention in their district in pursuance of a
judgment.
Nevertheless, consular officers shall refrain from taking action on
behalf of a national who is in prison, custody or detention if he
expressly opposes such action.
Finally, Article 36(2) provides that the laws and regulations of
the receiving state must enable full effect to be given to these
rights. The rights referred to
in paragraph 1 of this article shall be exercised in conformity with the
laws and regulations of the receiving state, subject to the proviso,
however, that the said laws and regulations must enable full effect to be
given to the purposes for which the rights accorded under this article are
intended.
B. History of
Litigation in the United States
Before 1992, the only published opinions citing article 36 involved
immigration proceedings. See, e.g.,
United
States
v. Rangel-Gonzalez, 617 F.2d 529, 532 (9th Cir.
1980). In Rangel-Gonzales, the Ninth Circuit held that
defendant’s indictment for illegal re-entry after deportation should have
been dismissed, since he had shown prejudice resulting from a violation of
article 36 in earlier deportation proceedings. Specifically,
the defendant demonstrated he would have contacted his consulate if he had
been aware of his right to do so. He also demonstrated that consular
assistance likely would have led to a voluntary departure, rather than
deportation.
If his departure had been voluntary, the government would not have
been able to charge him with illegal re-entry. Relying on this precedent, criminal defense attorneys began litigating article 36 violations in the early and mid-1990s. Early decisions, such as the Fifth Circuit’s opinion in Faulder v. Johnson, 81 F.3d 515 (5th Cir. 1996), a capital case, implied that a petitioner would be entitled to a remedy for the violation if he could demonstrate prejudice. Two years later, in an opinion respecting the denial of certiorari in another capital case, the United States Supreme Court likewise implied that a remedy might be available to a defendant who could demonstrate prejudice. Breard v. Greene, 523 U.S. 371 (1998). Recent capital cases have reaffirmed the prejudice requirement first established in Faulder. See, e.g., United States v. Chanthadara, 230 F.3d 1237 (10th Cir. 2000); United States v. Beckford , 2000 U.S. App. LEXIS 6752 (4th Cir. 2000) (because jury sentenced defendant to life in prison, district court properly rejected his claim that Government’s death sentence should have been stricken). In Flores v. Johnson, 210 F.3d 456 (5th Cir. 2000), however, the Fifth Circuit found the habeas petitioner’s VCCR claim to be Teague-barred. Over time, an increasing number of federal courts have held that certain remedies simply are not available for a violation of article 36 – regardless of any demonstration of prejudice. In none of the following cases, however, was the defendant sentenced to death. See, e.g., United States v. Minjares-Alvarez, 2001 U.S. App. LEXIS 16867 (10th Cir. July 27, 2001) (suppression of evidence not an available remedy); United States v. Jimenez-Nava, 243 F.3d 192 (5th Cir. 2001)(same); United States v. Lombera-Camorlinga, 206 F.3d 882 (9th Cir. 2000)(same); United States v. Chaparro-Alcantara, 226 F.3d 616 (7th Cir. 2000)(same); United States v. Li, 206 F.3d 56 (1st Cir. 2000)(neither suppression nor dismissal of indictment are available as remedy for violation); United States v. Page, 232 F.3d 536 (6th Cir. 2000); United States v. Cordoba-Mosquera, 212 F.3d 1194 (11th Cir. 2000); United States v. Chen Kevin, 1999 U.S. Cist. LEXIS 5728 (S.D.N.Y. April 7, 1999).
The legal landscape changed significantly on June 27, 2001, when
the ICJ issued its decision in LaGrand. A summary of
the LaGrand Court’s decision is attached as an appendix to this
document.
C. Responding to Government Arguments
1. Individuals Have Standing To Invoke
Their Rights Under the Vienna Convention
As noted above, most courts have side-stepped this issue. Nevertheless, there are a number of courts that have concluded – or at least implied – that individuals have enforceable rights under the Vienna Convention. In an opinion respecting the denial of certiorari in Breard v. Greene, 523 U.S. 371 (1998), the Supreme Court noted that the Vienna Convention “arguably confers on an individual the right to consular assistance following arrest.” See also Standt v. New York, 99 Civ. 11008 (S.D.N.Y. July 18, 2001); United States v. Rodrigues, 68 F. Supp. 2d 178 (E.D.N.Y. 1999)(stating that an individual probably does have standing, but declining to decide the issue conclusively); United States v. Esparza-Ponce, 7 F. Supp.2d 1084, 1095-96 (S.D. Cal. 1998)(same); United States v. Torres-Del Muro, 58 F. Supp. 2d 931 (C.D. Ill. 1999)(individual has standing); United States v. Hongla-Yamche, 55 F. Supp. 2d 74 (D. Mass 1999)(same); United States v. Briscoe, 69 F. Supp. 2d 738 (D. V.I. 1999)(“overwhelming weight of evidence” indicates that Vienna Convention confers private right of action); United States v. Superville, 40 F. Supp. 2d 672 (D. V.I. 1999)(same). But see Kasi v. Commwealth, 508 S.E.2d 57, 64 (Va. 1998)(Article 36 creates no legally enforceable individual rights). Moreover, when the Executive branch submitted the
VCCR to the Senate for ratification, it indicated that the treaty was
"entirely self-executive [sic] and does not require any implementing or
complementary legislation." S. Exec. Rep. No. 91-9, 91st Cong., 1st
Sess. 2 & 5 (appendix) (statement by J. Edward Lyerly, Deputy Legal
Adviser) (1969). Most important of all, two international tribunals have conclusively found that article 36 gives rise to individual rights. In the LaGrand case, the ICJ voted fourteen to one that article 36, paragraph 1 creates an individual right to consular notification and access. On October 1, 1999, the Inter-American Court on Human Rights found that consular notification was one of the “minimum guarantees essential to providing foreign nationals the opportunity to adequately prepare their defense and receive a fair trial.” In OC-16/99, para. 122, Inter-Am. Ct. H.R. (October 1, 1999) – a right embodied in article 14(3)(b) of the ICCPR. To my knowledge, only one court has suppressed a defendant’s statement (in a murder case) as a remedy for the violation of the Vienna Convention. State v. Reyes, 740 A.2d 7 (Del. 1999). Other courts, as indicated above, have held that suppression is not an available remedy under the Vienna Convention. Some courts, however, have implied that if a
defendant could show he was prejudiced by a violation of the treaty, he
would be entitled to some remedy – such as reversal of his
conviction.
See,
e.g., Breard, 118 S. Ct. at 1355 (“it is extremely doubtful that the
violation should result in the overturning of a final judgment of
conviction without some showing that the violation had an effect on the
trial”); United States v. Ediale, 1999 U.S. App. LEXIS
28477 (4th Cir. Nov. 2, 1999); Faulder v.
Johnson, 81 F.3d 515 (5th Cir. 1996);
Waldron v.
Immigration and Naturalization Serv., 17 F.3d 511 (2d Cir. 1993); United States v.
Miranda, 65 F. Supp. 2d 1002, 1007 (D. Minn. 1999)(“no remedy is
warranted unless the defendant can demonstrate that the Convention
violation resulted in some form of prejudice”); United States v.
Tapia-Mendoza, 41 F. Supp. 2d 1250, 1254-55 (D. Utah 1999)(“By
rejecting the remedy of suppression of such statements this court does not
foreclose the possibility that other remedies may be available.”); United States v.
Martinez-Villava, 80 F. Supp. 2d 1152 (D. Colo. 1999)(rejecting
defendant’s suppression motion on grounds that he failed to demonstrate
prejudice); Chen Kevin, 1999 U.S. Dist LEXIS 5728. You should confront these cases head on, and argue that they all failed to consider the authoritative decisions of the ICJ in LaGrand and of the Inter-American Court on Human Rights in OC-16/99. In LaGrand, the ICJ
squarely rejected a prejudice standard when reviewing the article 36
violation in that case. Germany argued that its consular
officers would have been able to intervene and present a “persuasive
mitigation case” at trial which “likely would have saved” the lives of the
LaGrands.
Germany’s inability to provide consular assistance was directly
attributable to the U.S. violation of article 36 (1)(b). Germany
further argued that its later intervention could not remedy the “extreme
prejudice” created by the [ineffective assistance of] counsel appointed to
represent the LaGrands.
The Court accepted Germany’s arguments, and rejected the United
States’ position that Germany’s assertions were speculative and
unfounded.
(The United States argued that some mitigating evidence had been
presented at trial, and that Germany’s intervention would not have
persuaded the sentencing judge to be more lenient).
The Court concluded that the rights set forth in article 36(1)(a)
and 36(1)(c) are interrelated with the rights delineated in 36(1)(b). “It follows
that when the sending State is unaware of the detention of its nationals
due to the failure of the receiving State to provide the requisite
consular notification without delay. . . the sending State has been
prevented for all practical purposes from exercising its right under
Article 36, paragraph 1. It is
immaterial for the purposes of the present case whether the LaGrands would
have sought consular assistance from Germany, whether Germany would have
rendered such assistance, or whether a different verdict would have been
rendered.
It is sufficient that the Convention conferred these rights, and
that Germany and the LaGrands were in effect prevented by the breach of
the United States from exercising them, had they so chosen.” Even more important, the LaGrand Court held that an apology was not a
sufficient remedy in cases where foreign nationals have not been advised
without delay of their rights under article 36, paragraph 1, of the Vienna
Convention and have been subjected to prolonged detention or sentenced to
severe penalties. (para. 123) The Court noted that in cases where individuals are subject to prolonged detention or severe penalties, “it would be incumbent upon the United States to allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention.” Unfortunately, the Court did not expressly state that a death sentence must be vacated, or a conviction overturned. In OC-16/99, a comprehensive, 77-page analysis of article 36,[1] the Inter-American court heard arguments from several countries, including the United States, as well as several non-governmental organizations. The court squarely rejected the arguments of the United States, which had argued the treaty created no individual rights. Instead, the court held that the right to consular notification was analogous to other basic due process rights contained in Article 14 of the International Covenant on Civil and Political Rights. The court recognized that the right to consular notification is “among the minimum guarantees essential to providing foreign nationals the opportunity to adequately prepare their defense and receive a fair trial.” OC -16/99 at 70, para. 122. The court reached this conclusion after observing that the legal system must resolve factors that contribute to inequality before the law. Id. at 71, para. 119. Most important, the court concluded that the execution of a foreign national whose consular notification rights were violated would constitute an “arbitrary deprivation of life” in violation of the International Covenant on Civil and Political Rights and the American Convention on Human Rights. Id. at 76, para. 137. In his concurring opinion to OC-16, Judge Cancado
Trinidade concisely summarized the special needs of foreign citizens with
regard to consular notification: The action of protection, in the ambit of the
International Law of Human Rights, does not seek to govern
the relations between equals, but rather to protect those ostensibly
weaker and more vulnerable. Such action of protection assumes
growing importance in a world torn by distinctions between nationals and
foreigners (including de jure discriminations, notably vis-ŕ-vis
migrants), in a “globalized” world in which the frontiers open themselves
to capitals, inversions and services but not necessarily to the human
beings.
Foreigners under detention, in a social and juridical milieu and in
an idiom different from their own and that they do not know sufficiently,
experiment often a condition of particular vulnerability, which the right
to information on consular assistance, inserted into the conceptual
universe of human rights, seeks to remedy. OC-16/99, concurring opinion of Trinidade, J., at para. 23. The opinion of the majority in OC/16, as well as the concurring opinions, illustrate that consular notification is no mere formality – and is indeed a fundamental right. You should argue that this provision – like the human rights treaties signed in the last fifty years – are unlike the treaties of old, which regulated affairs between states. Article 36, like the ICCPR, is designed to protect the rights of individuals, and represents a broad consensus among the international community. As such, it is more akin to a constitutional right than a statutory entitlement.
In addition to relying on OC/16, you should argue that vacating the
death sentence/conviction or suppressing evidence are remedies consistent
with international law. Under
international law, the recognized remedy for a treaty violation is to
restore the status quo ante, and return the parties to the
position they would have occupied had the violation not taken place. “The
essential principle of international law is that reparation must, as far
as possible, wipe out all the consequences of the illegal act and
reestablish the situation which would, in all probability, have existed if
that act had not been committed.” Restatement (Third) of the Law of Foreign
Relations, §901 R.N. 3. See also
Ian Brownlie,
State Responsibility 210 (1983)(“nullity is the necessary outcome
of illegality” in international law). The International Court of Justice
has repeatedly recognized that a violation of international law requires
an annulment (i.e., a declaration that a transaction was never valid, or
void ab
initio) of the international wrong. See, e.g., Texas Overseas Petroleum Co./California Asiatic Oil
Co. v. Government of the Libyan Arab Republic, (Dupuy, arb., Award of
January 19, 1977)(reprinted in 17 I.L.M.1 (1978)(restitutio in
integrum “may consist in annulment of the judgment of a national
tribunal delivered in contradiction with international law”); Temple of
Preah Vihear
(Cambodia v. Thail.), 1962 I.C.J.6, at 37; Barcelona
Traction, Light and Power Co., Ltd., 1970 I.C.J. 3 (opinion of
Fitzmaurice, J.). Two courts have addressed and rejected
these arguments. See United States v. Torres-Del Muro, 58 F. Supp.
2d 931 (C.D. Ill. 1999); People v. Madej, slip. op. No. 87574 (Ill. August
10, 2000). Moreover, you should provide the court with examples of non-constitutional violations that may lead to judicial remedies such as suppression of evidence. For example, the McNabb-Mallory rule requires suppression of confessions obtained after a violation of Federal Rule of Criminal Procedure 5(a). See Mallory v. United States, 354 U.S. 449 (1957); McNabb v. United States, 318 U.S. 332 (1943). See also United States v. Doe, 170 F.3d 1162 (9th Cir. 1999); Lombera-Camorlinga, 206 F.3d at 893 n.2 (Thomas, J., dissenting)(collecting cases). In some states, courts routinely exclude evidence of intoxilyzer tests in prosecutions for driving under the influence if the police fail to follow statutory procedures.
Although you should always argue that a showing of prejudice is not
required under international law, virtually all U.S. courts have held that
the defendant is required to demonstrate prejudice before he is entitled
to a remedy for the violation. See, e.g., Waldron v. INS, 17 F.3d 511, 518 (2d Cir.
1994).
To demonstrate prejudice, the Ninth Circuit has held that the
foreign national must produce evidence that: 1) he did not know of his right; 2) he would have
availed himself of the right had he known of it; and 3) there was a
likelihood that the contact [with the consul] would have resulted in
assistance to him. . . United States v.
Proa-Tovar, 975 F.2d 592, 594-95 (9th Cir. 1992)(en banc). This test has
been adopted by other courts, as well. When litigating a Vienna Convention violation in
pre-trial proceedings, it is critical that you establish that your client
would have contacted the consulate, if he had known of his rights under
the Convention.
You must also contact consular officials from your client’s home
country, and talk to them about ways in which they could have assisted
your client.
Mexican consular officials, for example, routinely testify at
pretrial hearings that they advise their citizens not to speak to the
police without first seeking the advice of counsel. The Government will no doubt argue – relying on
several bad decisions – that any advice by a consular official would be
merely duplicative of what counsel would have done. In addition,
the Government may rely on the reasoning of United States v.
Chaparro-Alcantara, 37 F. Supp.2d 1122 (C.D.Ill. 1999). In Chaparro-Alcantara, a Mexican consular official
testified he would have advised the defendants that any statements they
made could be used against them, and would have assisted them in obtaining
legal representation. The defendants also filed
affidavits, claiming that they would have exercised their right to
consular notification, and would have followed the advice of the consulate
not to speak to the police. The district court observed that both defendants
failed to show they would have exercised their Fifth Amendment right to
silence at the moment they were advised of their rights, before they
actually had an opportunity to speak to the consulate. The court
further held that nothing in the VCCR required law enforcement officials
to cease interrogating the defendants after notifying them of their rights
under the convention. There was also no evidence regarding
how quickly the defendants could have reached a Mexican consular
official.
37 F. Supp.2d at 1126. See also Rodrigues, 1999 U.S. Dist. LEXIS at *17-
*18. In anticipating these arguments, you must try to
demonstrate that your client would have refused to speak to the police if
he had known of his right to contact the consulate. Moreover, the
Inter-American Court on Human Rights has now held that the authorities
must notify a defendant of his rights under the VCCR at the time of
arrest, and before the accused gives his first statement to
authorities.
OC-16/99 at 65, para. 106. The Mexican consulates in many states have instituted
a 24-hour, toll-free line that defendants may call to receive assistance
from the consulate. Prejudice arguments are easiest to make where the
Government has gathered evidence, such as an incriminating statement,
subsequent to the VCCR violation. If these arguments are unavailable, be
creative in arguing prejudice. Rely on the international law remedies
discussed above, and argue that: 1. The indictment should be dismissed; 2. The Department of Justice should
rescind its death authorization (particularly if consular officials were
not given an opportunity to participate in meetings with the Justice
Department); 3. The Government should be barred from
seeking the death penalty; 4. The Government should not be able to
use prior convictions as enhancement, or as 404(b) evidence, if the prior
convictions were obtained subsequent to a violation of the Vienna
Convention.
5. As a result of the violation, you have
been hampered in preparing a defense, since the consulate would have
provided critical assistance in gathering evidence/contacting witnesses in
your client’s home country (compulsory process violation).
The State Department recognizes that consular notification is part
of customary international law, and that the United States is bound to
comply with Article 36 – even if the foreign citizen’s home country is not
a signatory to the Convention. U.S. State Department, Consular
Notification and Access (1998). Likewise, your client’s status as an
illegal immigrant or permanent resident is of no relevance in determining
whether he is entitled to consular notification. If your
client retains foreign citizenship, he is entitled to the protections of
Article 36. In the event that you are presenting a Vienna Convention argument in post-conviction proceedings, you may need to overcome procedural default problems. Although the following argument has not been well-received, I would argue that a state procedural rule cannot trump the rights created by Article 36. Moreover, you should rely on the ICJ’s decision in LaGrand to argue that the procedural default rules may not be invoked to bar merits review of an article 36 violation. In LaGrand, the Court noted that by the time Germany learned of the LaGrands’ incarceration, the procedural default rule prevented counsel for the LaGrands from effectively challenging their convictions and sentences based on the article 36 violation. The ICJ held that the waiver of this argument was attributable to the failure of American authorities to comply with their article 36(1)(b) obligations. “As a result, although United States courts could and did examine the professional competence of counsel assigned to the indigent LaGrands by reference to United States constitutional standards, the procedural default rule prevented them from attaching any legal significance to the fact, inter alia, that the violation of the rights set forth in article 36, paragraph 1, prevented Germany, in a timely fashion, from retaining private counsel for them and otherwise assisting in their defence as provided for by the Convention. Under these circumstances, the procedural default rule had the effect of preventing ‘full effect [from being] given to the purposes for which the rights accorded under this article are intended,’ and thus violated paragraph 2 of article 36.” (para. 91) The Supreme Court has held that state laws are subordinate to the nation's obligations under international compacts: We repeat that there are limitations on the sovereignty of the States. No State can rewrite our foreign policy to conform to its own domestic policies. Power over external affairs is not shared by the States; it is vested in the national government exclusively. It need not be so exercised as to conform to state laws or state policies, whether they be expressed in constitutions, statutes, or judicial decrees. And the policies of the States become wholly irrelevant to judicial inquiry when the United States, acting within its constitutional sphere, seeks enforcement of its foreign policy in the courts.
United States v. Pink, 315 U.S. 232, 233-34 (1942). See also United States v. Belmont, 301 U.S. 324 (1937)("Plainly, the external powers of the United States are to be exercised without regard to state laws or policies. . . "); Ronan Doherty, Foreign Affairs v. Federalism: How State Control of Criminal Law Implicates Fedral Responsibility Under International Law, 82 Virginia L. Rev. 1281, 1283-90 (1996). You will also need to distinguish the Court's opinion on denial of certiorari in Breard v. Greene, 523 U.S. 371 (1998). First, since Breard was merely an opinion regarding the denial of certiorari, it does not constitute binding precedent. Second, Breard dealt only with the conflict between provisions of a federal statute – namely, 28 U.S.C.A. secs. 2254(a), (e)(2) – and the VCCR. The Court did not address whether a state rule of procedural default could prevent a federal court from reaching the merits of a dispute involving international treaty rights. This is obviously an argument best raised in state post-conviction proceedings, or in a petition for writ of certiorari from a state appellate court.
If all else fails, you should argue that previous counsel was
ineffective for failing to notify his/her client of the right to consular
assistance under article 36. Cf. Ledezma v.
State, 626 N.W.2d 134 (Iowa 2001)(“all criminal defense attorneys
representing foreign nationals should be apprised of Article 36”). The LaGrand case,
described throughout this memo and summarized in an attachment, is highly
significant.
The United States has signed the Optional Protocol to the VCCR,
agreeing to submit to the jurisdiction of the ICJ for all disputes arising
from the interpretation of the Convention. (Below is a list of countries that have
signed the optional protocol). III. Preparing for Pre-Trial Hearings A. Seeking the
Assistance of Foreign Governments Approaching a foreign client's consular officials and
enlisting their support is an essential element in pursuing a Vienna
Convention claim. The consulates of most nations strive
to provide at least basic consular protections to their nationals detained
abroad.
However, the scope of assistance that you and your client will
receive may vary, depending on the resources available to the local
consular post, the priority placed by the home government on consular
services and even the degree of interest of the local consul. What follows are step-by-step suggestions for
obtaining this crucial assistance. 1. Consider the ramifications of the VCCR
violation in your client's case. Review the case file (particularly arrest
reports) to ascertain that: the arresting authorities were aware that your
client was a foreigner and that they failed to notify him of his right to
consular assistance. Please note that communications between
law enforcement agencies of the United States and a foreign country (e.g.,
requesting criminal records from the Ministry of Justice from a foreign
country) do not meet the notification requirements of Article 36. 2. Contact the
nearest consulate of your client's home government. If there is
no consulate nearby, contact the nation's embassy in Washington. In either
case, you'll want to speak with the Consul General (the diplomatic
official in charge of consular affairs). If possible, arrange to meet with
them directly. If not, send an introductory letter summarizing your
client's background, the case history and stressing both the breach of the
Vienna Convention on Consular Relations and the grave predicament of the
defendant. At this point, your purpose should be to acquaint the consulate
with the situation and to establish a dialogue on how you might work
together on your client's behalf. 3. After
establishing contact, there are two requests for assistance you may make
which most consulates will feel duty-bound to comply with. First, a
consular representative should immediately arrange to visit your
client.
Second, request that a consular official be present at all
subsequent court hearings. Both are general consular functions
under the Vienna Convention; evidence of this participation will add
credibility to your claim that the consulate would have rendered valuable
assistance to your client following arrest.. 4. If the
consulate is receptive to your client’s plight and expresses a willingness
to help, you may want to ask them to send a diplomatic note to the US
State Department, formally protesting the breach of Article 36. In its note,
the government may request a full investigation into the allegation (keep
in mind, however, that the government official who follows up on the
investigation may be the assistant U.S. Attorney handling your case). A substantive
response to the note will take at least a month and probably longer. 5. Find out if
there is a bilateral consular convention between the USA and the home
government.
You can ascertain this by checking the web page of the United
States Department of State (www.state.gov/www/global/legal_affairs/ca_notification/introduction.html). The United
States has bilateral consular agreements with some 40 nations; unlike
Article 36, these agreements generally stipulate that the consulate itself
must be directly notified of the detention within 72 hours, irrespective
of the national's wishes. These agreements place a high measure
of responsibility on the local authorities that goes above and beyond what
is required by the Vienna Convention, and may provide legitimate grounds
for direct legal intervention by the home government to vindicate its
sovereign rights. 6. Consider
asking the consulate to file an amicus brief to support your pretrial motion. The
brief should outline the forms of assistance that the consulate provides
to its detained nationals and argue that this breach of international law
prejudiced the defendant's legal rights. 7. Once the
consulate has agreed to intervene in the case, you may wish to explore
other forms of direct assistance. Depending on the facts of your case,
this may include: meeting with Justice Department
officials to urge them not to authorize the death penalty; hiring a
mitigation investigator to visit the home country, obtaining and
notarizing documents from the home country (e.g. medical records), or
appointing an attorney to represent the consular interest at hearings. 8. Other forms
of consular support are also possible. For example, you could ask a consular
representative to testify at an evidentiary hearing on this issue,
describing the forms of assistance available to detainees (senior
officials may have diplomatic immunity, so their voluntary consent to
appear is crucial). The consulate may agree to assist
witnesses and/or family members obtain visas and make travel arrangements
so they may testify at trial. The home government may also sue the
United States before the International Court of Justice to seek an
effective remedy for the breach of the Vienna Convention, but this may not
be a viable option at the pretrial stage of a capital case. The home
government will consider this a major undertaking, as well as a hostile
action toward the United States. To date, only two governments have gone
to the ICJ (Paraguay and Germany), and those governments waited until
their nationals were facing imminent execution. 9. At all
stages, the consulate should regularly visit or communicate with your
client and should lodge formal complaints over any irregularity in the
prisoner's treatment. A general listing of the forms of diplomatic
assistance available to detained nationals is contained in Article 5 of
the VCCR as well as Articles 3(b) and 45(c) of the Vienna Convention on
Diplomatic Relations. Of course, some nations are more active than others
in representing the rights of their arrested nationals. 10. If your first
contact or subsequent relations with the consulate are unsatisfactory,
don't give up. Send a copy of your introductory letter to the home
government's Foreign Affairs Minister (names/addresses available through
any Amnesty International office). Do not criticize the consulate in your
correspondence with the home government; should the government decide to
intervene in the case, you'll still need to work with the local consular
officials.
B. Witnesses and Other Evidence Your
client will need to testify that (1) he was not informed of his rights
under the VCCR; and (2) if he had known about his right to consular
notification, he would have exercised it immediately (and would not have
discussed his case with law enforcement officers until after he spoke to a
consular official). Other
witnesses you may call include: (1) Consular officials from the home
government; and (2) Representatives of the United States Department of
State (Catherine Brown is one official who routinely deals with Vienna
Convention issues, tel. 202/647-4415 or 202/647-0688). -- for an overview
of consular functions and the significance of the VCCR, see Luke T. Lee,
Consular Law and Practice (2d ed. 1991). -- an early analysis
of Article 36 violations and US law is found in Gregory Dean Gisvold, Strangers in a
Strange Land: Assessing the Fate of Foreign Nationals Arrested in the
United States by State and Local Authorities, 78 Minn. L.
Rev. (1994). The footnotes contain a wealth of
useful detail and additional sources; the article proposes a standardized
notification procedure akin to Miranda v. Arizona. -- for a more recent
treatment of the importance of consular assistance at the pre-trial phase,
Adele Shank and John Quigley, Foreigners on Texas's Death Row and the Right of
Access to a Consul, 26 St. Mary's L. J. 719 (1995). -- consular
assistance in criminal cases is also reviewed in Victor Uribe, Consuls at Work:
Universal Protections of Human Rights and Consular Protection in the
Context of Criminal Justice, 19 Hous. J. of Int’l
L. 375 (1996). -- the history of
the VCCR and its applicability in individual cases is outlined in William
C. Aceves, The
Vienna Convention on Consular Relations: A Study of Rights, Wrongs and
Remedies, 31 Vand. J. Transnat’l L. 257 (1998) -- consular
notification rights should apply from the earliest possible moment of
detention to prevent prejudicial treatment; the drafters of Article 36
expressly intended to confer a legal right on individual nationals,
according to Mark J. Kadish, Article 36 of the Vienna Convention on Consular
Relations: A Search for the Right to Consul, 18 Mich. J. Int’l
L. 565 (1997). -- The federal
government has ultimate responsibility for compliance with international
treaty obligations: Ronan Doherty, Foreign Affairs v. Federalism: How State
Control of Criminal Law Implicates Federal Responsibility Under International
Law, 82 Va. L. Rev. 1281 (1996). -- assistance for
detained foreign nationals may also be available from other organizations,
including cultural, religious and special interest groups. For a detailed
list of these groups in the USA by nationality, see: The Vienna
Convention, Consular Access and Other Assistance Available to Foreign
Nationals: A Guide for Criminal and Immigration Lawyers, by Lara A.
Ballard, Columbia Human Rights Law Review (1998). Also available on-line
at: www.gacdl.org. *USA: Violation of
the Rights of Foreign Nationals Under Sentence of Death, AI Index: AMR
51/01/98, January 1998. Outlines the general failure of U.S. authorities
to inform detained foreigners of their consular rights, with disastrous
consequences in capital cases. *USA: The Execution
of Angel Breard: Apologies Are Not Enough, AI Index: AMR
51/27/98, May 1998. Reviews the efforts to litigate this issue in the
Breard case at the domestic and international level, as well as the
response of the U.S. government. *Effective Consular
Assistance in Death Penalty Cases, by Mark Warren and
Sandra Babcock, June 1999. Intended primarily for consular and diplomatic
staff, this paper outlines the importance of early consular intervention,
gives examples of effective interventions at various stages of death
penalty cases and stresses the need for close cooperation between
consulates and defense teams. Magazine and Newspaper Articles *Representing
Foreign Nationals: Emerging Importance of the Vienna Convention on
Consular Relations as a Defense Tool, John Sims and
Linda Carter, "The Champion", September/October 1998. Outlines the
litigation history of Article 36 in the USA and proposes a number of
strategies for raising the claim at various stages of litigation. Detailed
footnotes included. Vienna Convention:
New Tool for Representing Foreign Nationals in the Criminal Justice
System, Logene Foster and Stephen Dogett, "The Champion",
March 1997. Brief introduction to the litigation potential of the VCCR,
including Article 37 (guardianship rights). States Deny Treaty
Rights to Foreign Defendants, Robert Brooks and
William Wright, Jr.,"The National Law Journal", November 4, 1996. Early
introduction to legal claims under Article 36, by the attorneys who
represented Mexican national Mario Murphy in Virginia. Foreigners'
Convictions Raise Rights Issue, Margaret Jacobs,
"Wall Street Journal", November 4, 1997. Report on VCCR claims in death
penalty cases.
Justice for
All, Jim Hoagland, "The Washington Post", April 19,
1998. Column on the significance of the execution of Angel Breard. *Aliens' Rights
Issue in Texas Death Row Case, Rick Lyman, "New
York Times",
December 8, 1998. Report on the Article 36 claim in the Faulder
case and the State Department's intervention. *Foreigners on Death
Row Denied Rights, U.S. Says, Henry Weinstein,
“Los Angeles Times”, December 10, 1998. A lengthy and reasonably accurate
article on the treaty issue, with good material on efforts to date by
Mexico, Canada and Thailand. *Death Penalty Stirs
Treaty Debate, Mike Ward, "Austin 360" (Austin American-Statesman
on-line service, www.Austin360.com), December 21, 1998. Report on the VCCR
and its impact on Texas death penalty cases involving foreigners,
especially Mexican nationals.. -- data on
death-sentenced foreign nationals in the USA and other background
material: www.essential.org/dpic/foreignnatl.html -- US Department of
State manual for law enforcement on Article 36: www.state.gov/www/global/legal_affairs/ca_notification/ca_prelim.html -- material from the
International Court of Justice on Vienna Convention claims: www.icj-cij.org -- source for
Amnesty International reports: www.amnesty.org This section
contains a partial listing of relevant cases, with an unofficial summary
of each decision. The number of cases citing Article 36 violations (and
the subsequent rulings) is constantly growing: counsel are advised to
consult LEXIS or WESTLAW for current data. |