Consular Notification: Statutory
and Regulatory Provisions
Last
updated: March, 2013
prepared
by: Mark Warren, Human Rights Research
Law Enforcement Accreditation
Standards
Police Department Patrol Manuals
Professional Standards for Defense Counsel
As a ratified treaty of the United
States, the Vienna Convention on Consular Relations (VCCR) is part of the
"supreme Law of the Land" under art. 6 of the U.S. Constitution and
is thus binding on all federal, state and local authorities. Moreover, the
treaty is recognized by the USA as entirely self-executing (in the sense that
no enabling legislation is required to give its provisions the full force of
law). Despite this exalted status, practical considerations have prompted the
creation of a number of federal regulations, state statutes and local
guidelines requiring compliance with the consular notification provisions of
the Vienna Convention.
Bilateral consular treaties entered into
by the USA typically require mandatory notification of the consulate
following the national's arrest, irrespective of the detainee's wishes (unlike
article 36 of the multilateral VCCR, which makes notification of the consulate
obligatory only upon the informed request of the national). These separate
bilateral obligations are frequently recognized in compliance provisions by
listing all such "mandatory notification" countries in the
instructions provided to law enforcement agencies. The distinction between the
mandatory notification provisions of many bilateral treaties and the VCCR
requirement of notification only at the national's request has resulted in some
unnecessarily cumbersome advisement procedures. According to the U.S.
Department of State, for example, arresting police should first determine a
non-citizen's actual nationality, then consult a list of mandatory notification
countries and only then provide one of two recommended advisements of consular
rights, depending on which treaty applies to the detainee.
A multi-stage process of full
identification followed by advisement is likely to result in either incomplete
or delayed compliance. A simpler approach would be to advise all foreign
detainees that they have the right to communicate with their consulates and to
have the consulate notified of their arrest. Once the police have
verified the actual nationality of a non-citizen, mandatory notification of the
consulate (if required) could then be provided, with an appropriate advisement
to the detainee that a bilateral treaty required that notification irrespective
of the national's wishes. Simpler still would be to add a line to the Miranda
advisement provided to all detained persons prior to interrogation,
irrespective of their nationality, that "if you are not a U.S. citizen,
you also have the right to communicate with your consulate and to have us
notify the consulate of your arrest." That approach would eliminate
any concerns over police questioning of detainees to ascertain their
citizenship status, which might give rise to accusations of invasion of privacy
or ethnic profiling.
This collection is a work in progress;
it does not yet include, for example, all of the growing number of arrest
guidelines and patrol manuals issued by municipal police departments that
require compliance with the VCCR when arresting foreign nationals. As more
information becomes available, the collection will be expanded.
The United States has adopted federal
regulations that require notification of consular rights and consular access when
foreign nationals are arrested by agents of the Department of Justice or the
Bureau of Immigration and Customs Enforcement (formerly the INS). See 28 C.F.R.
§ 50.5(a); 8 C.F.R. § 236.1(e). The Department of Justice regulation reads as
follows:
Notification of Consular Officers upon
the arrest of foreign nationals, 28 C.F.R.§ 50.5
a) This statement is designed to
establish a uniform procedure for consular notification where nationals of
foreign countries are arrested by officers of this Department [of Justice] on
charges of criminal violations. It conforms to practice under international law
and in particular implements obligations undertaken by the United States
pursuant to treaties with respect to the arrest and detention of foreign
nationals. Some of the treaties obligate the United States to notify the
consular officer only upon the demand or request of the arrested foreign
national. On the other hand, some of the treaties require notifying the consul
of the arrest of a foreign national whether or not the arrested person requests
such notification.
(1) In every case in which a foreign
national is arrested the arresting officer shall inform the foreign national
that his consul will be advised of his arrest unless he does not wish such
notification to be given. If the foreign national does not wish to have the
consul notified, the arresting officer shall also inform him that in the event
there is a treaty in force between the United States and his country which
requires such notification, his consul must be notified regardless of his
wishes and, if such is the case, he will be advised of such notification by the
U.S. Attorney.
2) In all cases (including those where
the foreign national has stated that he does not wish his consul to be
notified) the local office of the Federal Bureau of Investigation or the local
Marshal's Office, as the case may be, shall inform the nearest U.S. Attorney of
the arrest and of the arrested person's wishes regarding consular notification.
3) The U.S. Attorney shall then notify
the appropriate consul except where he has been informed that the foreign
national does not desire such notification to be made. However, if there is a
treaty provision in effect which requires notification of consul, without
reference to a demand or request of the arrested national, the consul shall be
notified even if the arrested person has asked that he not be notified. In such
case, the U.S. Attorney shall advise the foreign national that his consul has
been notified and inform him that notification was necessary because of the
treaty obligation.
b) The procedure described by this
statement shall not apply to cases involving arrests made by the Immigration
and Naturalization Service in administrative or exclusion proceedings, since
that Service has heretofore established procedures for the direct notification
of the appropriate consular officer upon such arrest. With respect to arrests
made by the Service for violations of the criminal provisions of immigration
laws, the U.S. Marshal, upon delivery of the foreign national into his custody,
shall be responsible for informing the U.S. Attorney of the arrest in
accordance with numbered paragraph 2 of this statement.
A condensed version of this statement
also appears in the Department of Justice Legal Handbook for Special Agents [of
the FBI], Mar. 31, 1983, section 3-10: "Foreign Nationals"
ICE (formerly INS) Regulation 8 C.F.R. § 236.1(e)
[Revised as of January 1, 2001]
PART 236--APPREHENSION AND DETENTION OF
INADMISSIBLE AND DEPORTABLE ALIENS; REMOVAL OF ALIENS ORDERED REMOVED
Subpart A--Detention of Aliens Prior to
Order of Removal
Sec. 236.1 Apprehension, custody, and
detention.
e) Privilege of communication. Every
detained alien shall be notified that he or she may communicate with the consular
or diplomatic officers of the country of his or her nationality in the United
States. Existing treaties with the following countries require immediate
communication with appropriate consular or diplomatic officers whenever
nationals of the following countries are detained in removal proceedings,
whether or not requested by the alien and even if the alien requests that no
communication be undertaken in his or her behalf. When notifying consular or
diplomatic officials, Service officers shall not reveal the fact that any
detained alien has applied for asylum or withholding of removal.
Albania
>1<, Antigua, Armenia, Azerbaijan,
Bahamas, Barbados, Belarus, Belize, Brunei, Bulgaria
,China, (People's Republic of) >2<, Costa Rica , Cyprus,
Czech Republic, Dominica, Fiji, Gambia, Georgia,
Ghana, Grenada, Guyana Hungary Jamaica Kuwait
Kyrgyzstan Kazakhstan Kiribati Malaysia Malta
Mauritius Moldova Mongolia Nigeria, Philippines,
Poland, Romania, Russian Federation, St. Kitts/Nevis,
St. Lucia, St. Vincent/Grenadines, Seychelles, Sierra
Leone, Singapore, Slovak Republic, South Korea,
Tajikistan, Tanzania, Tonga, Trinidad/Tobago,
Turkmenistan, Tuvalu, Ukraine, United Kingdom >3< ,
U.S.S.R. >4< , Uzbekistan, Zambia
\1\ Arrangements with these countries
provide that U.S. authorities shall notify responsible representatives within
72 hours of the arrest or detention of one of their nationals.
\2\ When Taiwan nationals (who carry
``Republic of China'' passports) are detained, notification should be made to
the nearest office of the Taiwan Economic and Cultural Representative's Office,
the unofficial entity representing Taiwan's interests in the United States.
\3\ British dependencies are also
covered by this agreement. They are: Anguilla, British Virgin Islands, Hong
Kong, Bermuda, Montserrat, and the Turks and Caicos Islands. Their residents
carry British passports.
\4\ All U.S.S.R. successor states are
covered by this agreement. They are: Armenia, Azerbaijan, Belarus, Georgia,
Kazakhstan, Kyrgyzstan, Moldova, Russian Federation, Tajikistan, Turkmenistan,
Ukraine, and Uzbekistan.
ICE Detention
Standards
http://www.ice.gov/doclib/dro/detention-standards/doc/visitation.doc
All foreign nationals
detained by U.S. Immigration and Customs Enforcement “will be advised of
their right to contact their consular representatives and receive visits from
their consulate officers.”
L. Consular Protection
According
to international agreements and by regulation, 8 CFR § 236.1, detainees must be
advised of their right to consular access, and ICE/DRO will facilitate the
detainee’s access to consular officers. It is ICE/DRO policy and
practice that all detained individuals are provided with notice, through the
facility administrator, of their right to contact their consular
representatives and receive visits from their consulate officers.
The
facility administrator shall ensure that all detainees are notified of and
afforded the right to contact and receive visits from their consular
officers. The same hours, privacy, and conditions that govern legal
visitation apply to consular visitation. Consular visits may be permitted
at additional times outside normal visitation hours with the facility
administrator's prior authorization.
To
conduct such visits, consular officers must present Department of State issued
identification.
Military Regulations Back to top
Perhaps not surprisingly, the most
explicit and detailed instructions are found in US military regulations.
http://books.usapa.belvoir.army.mil/cgi-bin/bookmgr/BOOKS/afr11013/CONTENTS
Title: Consular Protection of Foreign
Nationals Subject to the Uniform Code of Military Justice
Authors: Army Publications and Printing
Command
Document Number: AR 27-52
AR 27-52 * 5 November 1968 *
Unclassified
Summary: This regulation prescribes the
policy and procedures under which foreign consular offices are to be given
notice of the apprehension, confinement, or trial by court-martial of their
fellow nationals servicing the United States Armed Forces, and are to be
provided the opportunity to visit, communicate with, and otherwise safeguard
the interests of such foreign nationals.
Applicability: This regulation applies
only within the territory of the United States.
Suggested improvements: The Army office
of primary interest in this Joint publication is the
Office of The Judge Advocate General.
Army users are invited to send comments and suggested improvements to The Judge
Advocate General, ATTN: JAGX-M, Department of the Army, Washington, D.C. 20310.
1.1 Purpose and scope.
This regulation prescribes the policy
and procedures under which foreign consular offices are to be given notice of
the apprehension, confinement, or trial by court-martial of their fellow
nationals servicing the United States Armed Forces, and are to be provided the
opportunity to visit, communicate with, and otherwise safeguard the interests
of such foreign nationals.
1.2 Explanation of terms.
For the purpose of this regulation, the
following explanations apply:
a. "Consul" -The official
representative of a foreign country, who is charged with consular matters for
the locale in which a circumstance requiring notification occurs.
b. "Foreign national" -Any
member of the Armed Forces of the United States who is a national of a foreign
country and who is not also a citizen or national of the United States.
c. "Notifying officer" -The
officer exercising court-martial jurisdiction over the foreign national. For
the Army and Navy and the Marine Corps, the notifying officer is the officer
exercising general court martial jurisdiction. For the Air Force, the notifying
officer is the officer exercising special court-martial jurisdiction.
d. "Territory of the United States"
-The 50 States and the District of Columbia.
1.3 Applicability.
This regulation applies only within the
territory of the United States.
1.4 Notification
a. Circumstances requiring notification.
Notification is required whenever a foreign national is apprehended under
circumstances likely to result in confinement or trial by court-martial and
states that he is a foreign national, or is ordered into arrest or confinement,
or is held for trial with or without any form of restraint, or when
court-martial charges against him are referred for trial.
b. By whom made. Except as otherwise
provided herein, the notifications and reports required by this regulation will
be made by the notifying officer. Notification shall be given only when any of
the circumstances specified in a above occurs within the territory of the
United States.
c. Exceptions to notification
requirements.
(1) At sea. If any of the circumstances
specified in a above occurs aboard a ship at sea, notification is not required
while the ship is at sea. "At sea," as used here, does not include a
harbor or, except on a then outbound ship, territorial waters of the United
States.
(2) Number of notifications. Once
notification is given, it need not be repeated at subsequent stages of the same
case.
(3) Disciplinary action. This regulation
does not require notification when disciplinary action under Article 15 of the
Uniform Code of Military Justice or administrative action is taken against a foreign
national or if he is apprehended or confined in anticipation that only such
actions will be taken against him. If disposition of the foreign national's
case by court-martial is thereafter contemplated, the notifying officer will at
that time comply with paragraphs 4 through 6 of this regulation, as applicable.
(4) Civil authorities. This regulation
does not require notification when a foreign national is charged with a crime,
arrested, confined, or detained in custody by the civil authorities of the
United States, or any political subdivision, possession or territory thereof,
or by the authorities of any foreign government.
(5) Dispute as to foreign nationality.
For the purpose of this regulation, any serviceman who claims to be a foreign
national shall be so considered unless such claim is inconsistent with his
military records or other pertinent evidence. Whenever charges against an
serviceman are referred for trial, his military records shall be examined to
ascertain his nationality even if he has not entered a claim of foreign
nationality. In the event that the serviceman's claim of foreign nationality is
disputed, the notifying officer shall dispatch a telegraphic report thereon, as
appropriate, to--
(a) HQDA (DAJA-IA) WASH WASHINGTON, D.C.
20310 (Army). (Correction from C 1.)
(b) The Judge Advocate General, JAGN
(Navy and Marine Corp);
(c) HQ USAF, AFJALB (Air Force). If it
is determined that the serviceman is a foreign national, the required
notification shall be given to the consul by the Judge Advocate General of the
military department concerned.
d. Objection to notification by foreign
national. When a circumstance requiring notification arises, the foreign
national shall be advised that notification will be given to his consul unless
he objects and, in case he does object, that the Judge Advocate General will
determine whether an applicable treaty requires notification irrespective of
the wishes of the foreign national concerned. If the foreign national objects
to notification being given to his consul, the notifying officer shall send a
report by telegraphic means to the appropriate Judge Advocate General as set
forth in c(5), above. If an applicable treaty requires notification
irrespective of the wishes of the foreign national, notification will be given
to the consul by the Judge Advocate General of the military department
concerned.
e. Notification procedure.
(1) When a circumstance requiring
notification occurs, the notifying officer will immediately communicate by
telegram directly with the consul of the foreign country concerned nearest the
locale in which the circumstances requiring notification occur. Address of
foreign consulates are listed in the appendix.
(2) An information copy of such
communication shall, at the same time, be directed to the appropriate Judge
Advocate General as set forth in c(5), above. Except that for Air Force, such
communications shall be directed to HQ USAF, AFJALB and AFJAMD.
(3) When a circumstance requiring
notification occurs in an Army, Navy, or Marine Corps command below the level
of general court-martial convening authority, the facts shall be reported by
the commanding officer or officer in charge immediately concerned to the
officer normally exercising general court-martial jurisdiction over that
command. The report shall include the items listed in f, below.
f. Contents of notice. The notice to the
consul shall: Identify the foreign national by name, grade, service number
(numerical personnel identifier), and organization; specify the foreign country
of which he is a national; contain a concise statement of relevant facts
relating to the cause for which he has been apprehended or ordered into arrest
or confinement and held for trial, or for which he is held for trial with or
without any form of restraint; and, if applicable, the nature of the offense(s)
for which he is being held for trial or upon which charges against him have
been referred for trial; specify the name of his military and/or civilian
defense counsel, if any; and specify where the foreign national may be found.
The notice shall also offer to technical consul the assistance of the notifying
officer.
1.5. Consular Access Rights
a. Consular visits. Under circumstances
requiring notification, or when a foreign national is confined in a military
confinement facility, the consul shall, upon proper identification to the
notifying officer, have the right to visit the foreign national without delay.
Such visits shall be conducted in accordance with confinement facility
regulations, which shall permit reasonable access to, and the opportunity of
privately conversing with, the foreign national. The consul shall also be
allowed, subject to confinement facility regulations, to transmit
communications between the prisoner and other persons.
b. Communications between consul and
foreign national. Whether or not a foreign national is confined, he shall have
a right to communicate either orally, including telephonically, or in writing
with the consul and to receive such communications from the consul. All such
communications shall be treated as privileged and not subject to inspection or
monitoring, except in those exceptional cases in which the notifying officer
determines that national security considerations are involved..
c. Other consular rights. The consul
shall be given full opportunity to safeguard the interests of the foreign
national concerned. The consul has the right to confer with, to interview, to
advise, to arrange legal representation for, to make inquiries to incidents
affecting the interest of, and to otherwise assist foreign nationals, the
consul or other official representative of the foreign country shall be treated
with the dignity and courtesy befitting his office.
1.6 Record of trial.
A copy of the notice made pursuant to
this regulation will be incorporated as part of the allied papers of the
court-martial record of trial, if any.
1.7 Inquiries.
All inquiries concerning the
interpretation and application of this regulation should be addressed to the
appropriate Judge Advocate General as set forth in paragraph 4c(5).
A.0 Appendix A. LIST OF FOREIGN
CONSULATES IN THE UNITED STATES
The IRS has developed what
may well be the most workable and consistent approach to advisement of consular
rights, by requiring its agents to immediately inform all detained foreigners
of their right to consular notification and contact, irrespective of whether
some of those detainees are later found to fall under the provisions of
bilateral treaties requiring mandatory notification of the consulate.
Unlike the two-part process recommended by the State Department (in which
police must first determine whether the VCCR or a bilateral treaty applies and
then provide the appropriate advisement), this 'tell everyone' approach is easy
to administer and minimizes delays that might otherwise arise due to
uncertainty over a non-citizen's actual nationality.
http://www.irs.gov/irm/part9/ch04s15.html#d0e27694
Internal Revenue Manual
Chapter 9 Criminal Investigation
9.4.12.9 (07-30-2004)
Arrest or Detention of Foreign Nationals
1. A foreign national is defined
as any person who is not a United States citizen.
2. Treaty obligations of the United States require Federal law
enforcement officers to notify certain foreign authorities when foreign
nationals have been arrested or detained in the United States.
3. To ensure that Americans abroad obtain the treatment to which they are
entitled, it is essential that the United States not violate any of its
obligations under these treaties.
4. When special agents
arrest or otherwise detain a foreign national, the arresting special agent must
promptly inform the detainee of his/her right to have his/her government
informed of such event and that he/she has a right to consular access. In most
cases, the foreign national has the option to decide whether to have consular
officials notified. Some agreements with certain countries require mandatory notification
when their nationals are arrested or detained. See Exhibit 9.4.12-2, Mandatory
Notification Countries and Jurisdictions. In these instances, the foreign
national has no choice regarding notification and the arresting or detaining
special agent will notify the consulate or the embassy of the situation without
delay. See Exhibit 9.4.12-3, Suggested Statements to Arrested or Detained
Foreign Nationals, which provides suggested statements that may be used to
advise foreign nationals of consular rights.
5. If the detainee requests notification, the arresting or detaining
special agent must ensure that notification is immediately given to the nearest
consulate or embassy of the detainee's country. The physical addresses and
telephone/fax numbers of the foreign consular offices in the United States can
be obtained from the internet site, http:www.state.gov.
6. Foreign consular officers have the right to visit their
nationals who are in prison, custody, or detention to converse and correspond with
them and to arrange for their legal representation, unless the person being
held expressly opposes these actions. They must refrain from acting on behalf
of a foreign national if the foreign national opposes their involvement. In
addition, consular officers may not act as attorneys for their nationals.
7. Special agents should keep written records sufficient to
show compliance with the notification requirements. These records should show
all notifications to foreign consular representatives. In addition, in cases in
which notification is at the discretion of the detained foreign national, these
records should show that the foreign national was informed of the option of
consular notification, the date when the foreign national was so informed, and
whether or not the foreign national requested that consular officials be
notified. If confirmation of receipt of notification is available, it should be
saved if possible. See Exhibit 9.4.12-4, Suggested Fax Sheet for Notifying
Consular Officers of Arrests or Detentions, for appropriate document to record
compliance with the notification requirements.
U.S. Attorneys’ Manual
Title 9-10.000 of the Manual
“sets forth the policies and procedures for all Federal cases in which a
defendant is charged, or could be charged, with an offense subject to the death
penalty.” Under its provisions, failure to meet Article 36
obligations is one of the factors to be addressed in determining whether or not
to seek the federal death penalty in a foreign defendant’s case.
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/10mcrm.htm#9-10.080
9-10.080
Submissions from the United
States Attorney
The United States Attorney must submit
to the Assistant Attorney General for the Criminal Division every case in which
an indictment has been or will be obtained that charges an offense punishable
by death or alleges conduct that could be charged as an offense punishable by
death….Submissions should include the following documents:
A. Prosecution memorandum. This should
be sufficiently detailed to fully inform reviewers of the basis for the United
States Attorney's recommendation. The prosecution memorandum should include:
(10) Foreign citizenship. The memorandum
should include a discussion on whether the defendant(s) are citizens of foreign
countries, and if so, whether the requirements of the Vienna Convention on
Consular Relations have been satisfied.
To date, only 3 U.S. states are known
to have codified consular notification obligations. The Florida statute
predates U.S. ratification of the VCCR and is more reflective of consular
obligations under customary international law than of the more specific
provisions adopted under the Vienna Convention .
Despite some inconsistencies in its language regarding the basis for mandatory notification, California's codification of VCCR rights and obligations marked an important step toward improved compliance. The provision specifies no penalties for its breach; presumably, any available remedies would need to be determined by the state courts.
Legislation recently introduced in
Illinois (reproduced below) would require providing consular rights information
to all detainees, along with access to potential judicial remedies for
non-compliance with Article 36 obligations.
FLORIDA STATUTE (1965)
Recognition of International Treaties
Act (1965), Chapter 901.26
('Arrests') of the Florida Statute.
Key words: identification certificate;
notification upon arrest.
(1) The following shall be known as the
"Recognition of International Treaties Act".
(2) The Department of State may, upon
application, issue identification certificates to those official
representatives of sovereign nations that are on official business within the
boundaries of Florida.
(3) Wherever in the state a citizen of
any sovereign nation to which the United States extends diplomatic recognition
shall be arrested or detained for any reason whatsoever, the official who makes
the arrest or detention shall immediately notify the nearest consul or other
officer of the nation concerned or, if unknown, the Embassy in Washington, D.C.
of the nation concerned or, if unknown, the nearest state judicial officer who
shall in turn notify either of the above. Failure to give notice shall not be a
defense in any criminal proceedings and shall not be cause for the citizen's
discharge from custody.
Amended in 2000 to read:
901.26 Arrest and detention of
foreign nationals.--Failure to provide consular notification under the Vienna Convention
on Consular Relations or other bilateral consular conventions shall not be a
defense in any criminal proceeding against any foreign national and shall not
be cause for the foreign national's discharge from custody.
CALIFORNIA PENAL CODE (1999)
834c. (a) (1) In accordance with federal
law and the provisions of this section, every peace officer, upon arrest and
booking or detention for more than two hours of a known or suspected foreign
national, shall advise the foreign national that he or she has a right to
communicate with an official from the consulate of his or her country, except
as provided in subdivision (d). If the foreign national chooses to exercise
that right, the peace officer shall notify the pertinent official in his or her
agency or department of the arrest or detention and that the foreign national
wants his or her consulate notified.
(2) The law enforcement official who
receives the notification request pursuant to paragraph (1) shall be guided by
his or her agency's procedures in conjunction with the Department of State
Guidelines Regarding Foreign Nationals Arrested or Detained in the United
States, and make the appropriate notifications to the consular officers at the
consulate of the arrestee.
(3) The law enforcement official in
charge of the custodial facility where an arrestee subject to this subdivision
is located shall ensure that the arrestee is allowed to communicate with,
correspond with, and be visited by, a consular officer of his or her country.
(b) The 1963 Vienna Convention on
Consular Relations Treaty was signed by 140 nations, including the United
States, which ratified the agreement in 1969. This treaty guarantees that
individuals arrested or detained in a foreign country must be told by police
"without delay" that they have a right to speak to an official from
their country's consulate and if an individual chooses to exercise that right a
law enforcement official is required to notify the consulate.
(c) California law enforcement agencies
shall ensure that policy or procedure and training manuals incorporate language
based upon provisions of the treaty that set forth requirements for handling
the arrest and booking or detention for more than two hours of a foreign
national pursuant to this section prior to December 31, 2000.
(d) Countries requiring mandatory
notification under Article 36 of the Vienna Convention shall be notified as set
forth in this section without regard to an arrested or detained foreign
national's request to the contrary. Those countries, as identified by the
United States Department of State on July 1, 1999, are as follows:
[LIST OF 56 MANDATORY NOTIFICATION
COUNTRIES]
However, any countries requiring
notification that the above list does not identify because the notification
requirement became effective after July 1, 1999, shall also be required to be
notified.
CALIFORNIA PENAL CODE (2004)
Section 5028 of the Penal Code is
amended to read:
5028. (a) Upon the
entry of any person who is currently or was previously a foreign national into
a facility operated by the Department of Corrections, the Director of
Corrections shall inform the person that he or she may apply to be transferred
to serve the remainder of his or her prison term in his or her current or
former nation of citizenship. The director shall inform the person that
he or she may contact his or her consulate and shall ensure that if
notification is requested by the inmate, that the inmate's nearest
consulate or embassy is notified without delay of his or her incarceration.
(b) Upon the request of a
foreign consulate representing a nation that requires mandatory notification
under Article 36 of the Vienna Convention on Consular Relations Treaty listed
in subdivision (d) of Section 834c, the Department of Corrections shall provide
the foreign consulate with a list of the names and locations of all inmates in
its custody that have self-identified that nation as his or her place of birth.
(c) The Department of
Corrections shall implement and maintain procedures to process applications for
the transfer of prisoners to their current or former nations of citizenship
under subdivision (a) and shall forward all applications to the Governor or his
or her designee for appropriate action.
OREGON REVISED STATUTES (2003)
Chapter 181 — State Police; Crime
Reporting and Records; Public Safety Standards and Training
181.642 Training relating to Vienna
Convention and crimes motivated by prejudice or that constitute abuse. The
Board on Public Safety Standards and Training shall ensure that all police
officers and certified reserve officers are trained to:
(1) Investigate, identify and
report crimes:
(a) Motivated by prejudice based
on the perceived race, color, religion, national origin, sexual orientation,
marital status, political affiliation or beliefs, membership or activity in or
on behalf of a labor organization or against a labor organization, physical or
mental handicap, age, economic or social status or citizenship of the victim;
and
(b) That constitute abuse, as
defined in ORS 419B.005, or domestic violence.
(2) Understand the requirements of
the Vienna Convention on Consular Relations and identify situations in which
the officers are required to inform a person of the person’s rights under
the convention. [1989 c.1028 §3; 1995 c.128 §1; 1995 c.624 §3; 2003 c.109 §1]
SECTION 2. ORS 426.228 is amended to
read:
426.228. (1) A peace officer may
take into custody a person who the officer has probable cause to believe is
dangerous to self or to any other person and is in need of immediate care,
custody or treatment for mental illness. As directed by the community mental
health and developmental disabilities program director, a peace officer shall
remove a person taken into custody under this section to the nearest hospital
or nonhospital facility approved by the Department of Human Services. The
officer shall prepare a written report and deliver it to the treating
physician. The report shall state:
[...]
(9)(a) When a peace officer takes a
person into custody under this section, and the peace officer reasonably
suspects that the person is a foreign national, the peace officer shall inform
the person of the person’s right to communicate with an official from the
consulate of the person’s country.
(b) A peace officer is not civilly
or criminally liable for failure to provide the information required by this
subsection. Failure to provide the information required by this subsection does
not in itself constitute grounds for the exclusion of evidence that would otherwise
be admissible in a proceeding.
PROPOSED CONSULAR NOTIFICATION
LEGISLATION IN ILLINOIS (SB 1906)
Introduced on February 10, 2011, noteworthy features of the bill include:
protections against police inquiries into immigration status; a ‘tell
everyone’ requirement (all detainees must be informed of their potential
consular rights); re-advisement upon first appearance in court; the right to a
continuance pending consular notification and, if the defendant can show
prejudice, appellate court remands where consular notice was not provided prior
to conviction and sentencing.
http://www.ilga.gov/legislation/97/SB/09700SB1906.htm
Section 5. The Code of
Criminal Procedure of 1963 is amended by changing Sections 103-1 and 109-1 as
follows:
(725 ILCS 5/103-1) (from Ch.
38, par. 103-1)
Sec. 103-1. Rights on
arrest.
(b-5) This subsection is
intended to implement and be interpreted consistently with the Vienna
Convention on Consular Relations, to which the United States is a party.
Article 36 of that Convention guarantees that when foreign nationals are
arrested or detained, they must be advised of their right to have their
consular officials notified, and if an individual chooses to exercise that
right, a law enforcement official is required to notify the consulate. Neither
the fact that a foreign national is identified as such, nor that he or she
invokes the right to consular notification shall provide any law enforcement
official with reason to believe that the person is unlawfully present in the
United States or reason to otherwise inquire about that person's immigrant
status in the United States.
(1) In accordance with
federal law and the provisions of this Section, the law enforcement official in
charge of a custodial facility shall ensure that any individual booked and
detained at such facility, within 48 hours of booking or detention, shall be
advised that if that individual is a foreign national, he or she has a right to
communicate with an official from the consulate of his or her country.
(2) If the foreign national
requests consular notification or such notification is mandatory by law, the
law enforcement official in charge of the custodial facility shall ensure such
notice is given to the appropriate officer at the consulate of the foreign
national in accordance with the U.S. Department of State Instructions for
Consular Notification and Access.
(3) The law enforcement
official in charge of the custodial facility where a foreign national is
located shall ensure that the foreign national is allowed to communicate with,
correspond with, and be visited by, a consular officer of his or her country.
(725 ILCS 5/109-1) (from Ch.
38, par. 109-1)
Sec. 109-1. Person arrested.
(d) At the initial
appearance of a defendant in any criminal proceeding, the court must advise the
defendant in open court that any foreign national who is arrested or detained
has the right to have notice of the arrest or detention given to his or her
country's consular representatives and the right to communicate with those
consular representatives if such notice has not already been provided. The
court must make a written record of so advising the defendant.
(e) If consular notification is not provided
to a defendant before his or her first appearance in court, the court shall
grant any reasonable request for a continuance of the proceedings to allow
contact with the defendant's consulate. If consular notice is not provided
before conviction and sentencing, the Appellate Court shall remand the case to
the trial court if the defendant can show that he or she suffered prejudice as
a result of the lack of consular notice.
Back to top
Law Enforcement Accreditation Standards
CALEA, the Commission
on Accreditation for Law Enforcement Agencies, released the 5th Edition of its
Standards for Law Enforcement Agencies in May of 2006. The CALEA
standards now include a consular notification and access requirement.
This new standard is mandatory;
it appears fourth on a list of approximately one thousand requirements of
varying degrees of importance, right after the obligation to uphold the U.S.
Constitution. Any U.S. law enforcement agency seeking or renewing
CALEA accreditation will now be required to have a written consular
notification and access directive.
The standard reads:
1.1.4 A written
directive governs procedures for assuring compliance with all consular
notification and access requirements in accordance with international treaties
when dealing with foreign nationals.
Commentary: The
cooperation of law enforcement agencies in extending consular notification and
access to foreign nationals in accordance with international law helps the
national government comply with its international treaty obligations. It also
helps to ensure that citizens of every country are treated with the same
respect and treaty compliance when arrested or detained in foreign countries;
and provides a basis for national governments to assert their international
rights. (See 72.7.1)
The complexity of the
treaty requirements suggests that the agency arrange for training with all
appropriate personnel.
Law enforcement agencies
in the United States can obtain relevant information, and detailed guidance by
consulting the U.S. State Department's publication entitled Consular
Notification and Access. Agencies outside the United States should contact the
appropriate Department of State or equivalent for information and reference
materials.
According to the
CALEA website's membership search function, 562 law enforcement agencies
nationwide are already accredited, with another 166 agencies pending (as of
July 2006).
http://www.calea.org/agcysearch.cfm
Accredited agencies
include:
--major municipal police
departments (e.g., Albuquerque, Atlanta, Austin, Birmingham, Charlotte,
Cincinatti, Columbus, Honolulu, Las Vegas, Miami, Nashville, New Orleans, Phoenix,
Seattle, Tampa, Tucson)
--major county sheriff's
or police departments (Alameda, Baltimore, Broward, DeKalb, Harris,
Jacksonville)
--state police
departments (Connecticut, Delaware, Illinois, Kentucky, Louisiana,
Pennsylvania, Rhode Island, Virginia)
--state highway patrols
(Florida, Missouri, Nebraska, North Carolina, North Dakota, Ohio,
Washington )
--state criminal
investigation agencies (Florida, Georgia, Ohio, Oklahoma, South Carolina,
Tennessee)
--transit authorities and
other specialized agencies (United States Capitol Police, Amtrak, Washington
Metro Transit)
Police departments
seeking accreditation include: Dallas, Detroit, D.C., El Paso, Memphis,
Oklahoma City, St. Louis, New Jersey, New Mexico.
--------------
National Institute of Corrections
http://www.nicic.org/ConsularNotification.aspx
Consular Notification Regarding
Detention of Foreign Nationals
Federal, state, and local corrections
agencies in the United States have international treaty obligations concerning
foreign nationals in this country under the Vienna Convention on Consular
Relations. The U.S. also has bilateral treaties with other countries, some of
which impose additional obligations.
Consular notification is not only the
law, it helps ensure our Government's ability to protect Americans who travel
and reside abroad—and can prevent needless litigation and legal
challenges that can threaten prosecution cases.
In brief, the obligations affecting law
enforcement and corrections agencies include the following:
* When foreign
nationals are arrested or detained, they must be asked if they want their
consular official notified. For some nations, the consular office must be
notified even if the detained national does not request such notification.
* A foreign consular officer must be allowed to communicate
with or visit a foreign national in jail or prison.
* When a foreign national dies in custody, there is an
obligation to notify consular officers.
-------------
International Association of Chiefs
of Police
http://www.theiacp.org/documents/index.cfm?document_id=571&fuseaction=document&subtype_id=
What's New
Consular Notification materials
available from Bureau of Consular Affairs
The Bureau of Consular Affairs is
encouraging all U.S. law enforcement agencies to check to see that they have a
written policy and procedure in place on consular notification and access, and
to take steps to establish these if they do not already. For guidance the
booklet "Consular Notification and Access - Instructions for Federal,
State, and other Local Law Enforcement and Other Officials Regarding Foreign
Nationals in the United States and the Rights of Consular Officials To Assist
Them", is available online at http://travel.state.gov/consul_notify.html.
All U.S. law enforcement officers should
receive training about consular notification. At a minimum, they can watch an
11-minute video, "It's the Right Thing To Do," online at
http://travel.state.gov/CNAvideo.html.
This video, and a variety of other
training materials, including pocket cards, poster and PowerPoint slide presentation,
are all available free of charge to law enforcement agencies. These free
materials may be ordered at
http://travel.state.gov/ordernotificationmaterial.html.
For more information, please contact:
Bureau of Consular Affairs
(202) 647-4415
The linchpin in compliance with VCCR
article 36 obligations is compliance by local law enforcement agencies. In
order to acquaint local police with their treaty obligations, the U.S.
Department of State and some state-level agencies have prepared instruction
manuals. While the State Department's 129-page guide provides the most
comprehensive instructions, many other useful examples now exist.
---------------
STATE DEPARTMENT
MANUAL
As part of its efforts to enhance
awareness of the VCCR and to improve domestic compliance, the State Department
issued a comprehensive manual for law enforcement in 1998. The following
excerpt (from the 2010 edition) outlines the basic recommended procedure to be
followed when a foreign national is taken into custody.
Consular Notification and Access
Instructions for Federal, State, and
other Local Law Enforcement and Other Officials Regarding Foreign Nationals in
the United States and the Rights of Consular Officials To Assist Them
Revised September 2010
U.S. Department of State
http://travel.state.gov/law/consular/consular_753.html
SUMMARY OF REQUIREMENTS PERTAINING TO
FOREIGN NATIONALS
-When foreign nationals from most countries are arrested or detained,
they may, upon request, have their consular officers notified without delay of
their arrest or detention, and may have their communications to their consular
officers forwarded without delay. In addition, foreign nationals must be
advised of this information without delay.
-For foreign nationals
of some countries, consular officers must be notified of the arrest or
detention of a foreign national even if the foreign national does not request
or want notification.
-Consular officers are
entitled to communicate with and to have access to their nationals in
detention, and to provide consular assistance to them, including arranging for
legal representation.
-When a law enforcement
or other government official becomes aware of the death, serious injury, or
serious illness of a foreign national, consular officers must be notified.
-When a guardianship or
trusteeship is being considered with respect to a foreign national who is a
minor or an incompetent adult, consular officers must be notified.
-When a foreign
shipwrecks or a foreign aircraft crashes in U.S. territory, consular officers
must be notified.
These are mutual
obligations that also apply to foreign authorities when they arrest or detain
U.S. citizens abroad. In general, you should treat a foreign national as you
would want a U.S. citizen to be treated in a similar situation in a foreign
country. This means prompt and courteous compliance with the above
requirements.
Steps to Follow When a Foreign
National is Arrested or Detained
1. Determine the foreign national's
country. In the absence of other information, assume this is the country on
whose passport or other travel document the foreign national travels.
2. If the foreign national's country is
not on the mandatory notification list:
1. DETERMINE THE FOREIGN
NATIONAL’S COUNTRY OF NATIONALITY. IN THE ABSENCE OF
OTHER INFORMATION,
ASSUME THIS IS THE COUNTRY ON WHOSE PASSPORT OR OTHER
TRAVEL DOCUMENT THE
FOREIGN NATIONAL IS TRAVELING.
2. IF THE FOREIGN
NATIONAL’S COUNTRY IS NOT ON THE LIST OF “MANDATORY
NOTIFICATION”
(“LIST”) COUNTRIES AND JURISDICTIONS (SEE PAGE 4 FOR THE LIST):
-Inform the foreign
national, without delay, that he or she may have his or her consular officers
notified of the arrest or detention and may communicate with them. For a
suggested statement in several different languages, see Part Five on pages 73
through 95 of this manual.
-If the foreign national
requests that his or her consular officers be notified, notify the nearest
embassy or consulate of the foreign national’s country without delay.
Foreign embassy and consulate phone and fax numbers can be found in Part Seven
on pages 108 through 128 of this manual, and on the Department of State’s
website at www.travel.state.gov/consularnotification. A suggested notification
fax sheet appears on page 96.
-Forward any
communication from the foreign national to his or her consular officers without
delay.
3. IF THE FOREIGN
NATIONAL’S COUNTRY IS ON THE LIST OF “MANDATORY NOTIFICATION”
(“LIST”)
COUNTRIES:
-Notify that
country’s nearest embassy or consulate, without delay, of the arrest or
detention. Phone and fax numbers are in Part Seven on pages 108 through 128 of
this manual, and you may use the suggested fax sheet on page 96 for making the
notification.
-Tell the foreign
national that you are making this notification and inform him or her, without
delay, that he or she may communicate with his or her consular officers. A
suggested statement to the foreign national in several different languages
appears in Part Five on pages 73 through 95 of this manual.
-Forward any
communication from the foreign national to his or her consular officers without
delay.
4. KEEP A WRITTEN RECORD
OF:
-What information you
provided to the foreign national and when.
-The foreign
national’s requests, if any.
-Whether you notified
consular officers and, if so, the date and time of notification and the means
used to notify them (e.g., fax or phone). If you used fax to notify the
consular officers, you should keep the fax confirmation sheet in your records.
-Any other relevant
actions taken.
Suggested Statements to Arrested or
Detained Foreign Nationals
Statement 1
For All Foreign Nationals Except
Those From “Mandatory Notification” Countries
As a non-U.S. citizen who is being
arrested or detained, you are entitled to have us notify your country's
consular representatives here in the United States. A consular official from
your country may be able to help you obtain legal counsel, and may contact your
family and visit you in detention, among other things. If you want us to notify
your country's consular officials, you can request this notification now, or at
any time in the future. After your consular officials are notified, they may
call or visit you. Do you want us to notify your country's consular officials?
Statement 2:
For Foreign Nationals From
“Mandatory Notification” Countries
Because of your nationality, we are
required to notify your country's consular representatives here in the United
States that you have been arrested or detained. After your consular officials
are notified, they may call or visit you. You are not required to accept their
assistance, but they may be able to help you obtain legal counsel and may
contact your family and visit you in detention, among other things. We will be
notifying your country's consular officials as soon as possible.
Record keeping
Law enforcement agencies should keep
written records sufficient to show compliance with the above notification
requirements. At a minimum, these records should include:
-The date and time the foreign national
was informed that he or she could communicate with consular officers and, if
applicable, could request that consular officers be notified without delay of
the arrest or detention. If information was provided in writing, retain a copy.
-Whether the foreign national requested
notification, if applicable.
-Whether the consulate was notified and,
if so, the date and time of notification, method of notification, and
confirmation of receipt, if available. (If notification is sent via fax, the
law enforcement agency should retain a copy of the notification receipt printed
by the fax machine.)
-Other relevant actions taken.
Additional inquiries may
be directed to:
Office of Policy
Coordination and Public Affairs (CA/P),
Bureau of Consular
Affairs, U.S. Department of State,
2100 C St. NW, Room
4800,
telephone: (202)
647-4415; fax: (202) 736-7559; email: consnot@state.gov
Urgent telephone
inquiries after regular business hours (8 a.m. to 5 p.m. Eastern) may be
directed to the
Department’s Operations Center at (202) 647-1512.
STATE DEPARTMENT NOTICE TO LAW ENFORCEMENT
Prior to the publication of
‘Consular Notification and Access’, periodic notices had been sent
to mayors and police departments in all major U.S. cities, as well as to all
state Attorneys-General
United States Department of State
Washington, D.C.20520
April 20, 1993
NOTICE
FOR LAW ENFORCEMENT OFFICIALS ON DETENTION OF FOREIGN NATIONALS
The U.S. Department of State wishes to
remind all law enforcement personnel that, whenever they arrest or otherwise
detain a foreign national in the United States, there maybe a legal obligation
to notify diplomatic or consular representatives of that person's government in
this country. Compliance with the notification requirement is essential to
ensure that similar notice is given to U.S. diplomatic and consular officers
when U.S. citizens are arrested or detained abroad.
Whenever a foreign national is taken
into custody, the arresting or other officer-in-charge should consult the list
at Annex A to determine whether notification is mandatory. If the
detainee is a national of one of the countries listed, there is a
bilateral agreement in force with that country requiring notice in all cases.
The nearest consulate or embassy should be notified without delay and the
detainee so informed.
If the detainee is a national of
any other foreign country, the Vienna Convention on Consular Relations
and/or customary international law require that she/he must be informed without
delay of the right to have his/her government notified. If notification
is requested, it must be given without delay to the nearest consulate or
embassy.
Law enforcement agencies should keep a
written record of all notifications to foreign diplomatic or consular
representatives. If notification is optional and is not requested by the
detainee, that fact should be recorded in the detainee's file, and no notice
should be given.
Subject to local laws and regulations
regarding access to detained persons, foreign consular officers have the right
to visit their nationals, to converse and correspond with them, and to arrange
for their legal representation.
A current list of telephone
numbers, and FAX numbers where available, for all foreign consulates and
embassies is at Annex B. Please note that there are addenda for countries
formerly part of the USSR and Yugoslavia.
Inquiries concerning the foregoing may
be addressed to the Assistant Legal Adviser for Consular Affairs, U.S.
Department of State, Washington, D.C. 20520; Telephone (202) 647-4415; FAX
(202) 736-7559. Telephone inquiries after normal business hours may be directed
to the Command Center of the Bureau of Diplomatic Security at {202) 663-0812.
The Department of ' State appreciates
the continued cooperation of federal, state and local law enforcement agencies
in meeting these United States obligations under international law.
-------------
An early example at the state level
is the manual prepared by the Georgia Department of Community Affairs. The manual
was first amended in 1996 to include procedures for the arrest of foreign
nationals, to coincide with the Atlanta Olympics. It includes extensive
footnotes (enclosed).
GEORGIA OPERATIONS MANUAL
http://www.dca.state.ga.us/development/research/programs/downloads/law/Chap8-1.html
A Model Law Enforcement Operations
Manual
Prepared by Georgia Department of
Community Affairs Planning and Management Division
"A comprehensive document which
identifies professional standards and requirements for law enforcement
operations, particularly for those areas of high liability and officer safety.
It can be used by law enforcement agencies interested in developing their own
policies and procedures manuals as a "starting point," and recognizes
the importance of having a written body of policies and operating procedures in
place."
Sixth Edition Revised February
1996(MLEOM)
Chapter 8
S.O.P. 8.1
ARRESTS OF FOREIGN NATIONALS.
1. Citizens of other nations who reside
in or are visiting Georgia are subject to Georgia law [1] and except as
indicated below, foreign nationals who are arrested will be treated in the same
manner as U.S. citizens [2].
1. A foreign national who is arrested
(taken into custody) [3] will be informed that he or she has the right under a
treaty to which the United States is a party [4], to have his or her country's
embassy or nearest consulate notified of his or her arrest and detention. This
should be done at the time of the arrest but no later than during booking at
the jail [5].
1. A notation should be made in the case
file of the fact that the accused was advised of his or her rights under the
Vienna Convention on Consular Relations and whether or not the accused requested
that the embassy/consulate be contacted.
2. If the foreign national asks that
their embassy or consulate be notified, it is the agency's responsibility to
contact the consulate or embassy [6]. Unless the accused is a national from the
countries listed below, do not notify the embassy/consulate unless the accused
requests they be notified. [7]
3. An updated listing of consulates and
embassies can be found at the U.S. State Department web site:
http://www.state.gov. This site also contains translations of the suggested
rights warning in several different languages.
2. By law, if a citizen of the following
countries is arrested, the supervisor or his or her designee will notify the
nearest consulate or the embassy of the arrest [8].
1. The accused will be told that his or
her embassy or consulate will be contacted, even if the accused does not want
his or her consulate notified [9] . A supervisor should contact the U.S. State
Department for additional guidance if the accused indicates a fear of persecution
or mistreatment by his or her government. The U.S. State Department may be
contacted by phone at the following:
(1) Business hours: 202-647-4415 fax
202-736-7559
(2) After business hours: 202-647-1512.
2. Notification of the consulate will be
made at the time the accused is booked [10]. A suggested form for sending a fax
notice to the applicable consulate can be found at the State Department Web
Site.
3. NOTE: If the accused also requests
asylum, contact the U.S. State Department for further guidance prior to
notifying the consulate or embassy [11].
[LIST OF MANDATORY NOTIFICATION
COUNTRIES]
3. Diplomatic and consular officers have
the legal right to consult with their citizens who are detained by federal,
state or local authorities [12]. Any communication by a detained foreign
national must be forwarded to the consular post without delay.
1. A diplomatic or consular official who
is acting in this capacity will be treated with the utmost courtesy as befits
their rank.
2. The right of consular access and
communication are generally subject to local laws and regulations concerning
prisoner visitations. [13]
3. Whenever possible a senior officer or
prosecuting attorney should brief the diplomatic or consular officer on the
fact and circumstances of the arrest and the legal process which will be
followed in the case. [14]
4. If the foreign national who is
arrested is in possession of a passport, visa, boarder crossing card, resident
alien card or alien registration card, the arresting officer shall make a
photostatic copy of the documents and attach them to the arrest/booking report
[15]. A copy should also be made of any other identity or travel documents in
the possession of the accused.
5. When completing the arrest booking
report, obtain the following information:
1. A complete home address (foreign
address) of the accused;
2. A complete local address for the
accused.
6. The officer who contacts an embassy
or consulate on behalf of an accused foreign national will note the date, time and
the name of the person who received the call at the embassy or consulate in a
supplemental report and place it in the case file [16].
7. If the accused foreign national is a
juvenile who is not accompanied by a parent or legal guardian, the Immigration
and Naturalization Service will be notified at the same time as the Juvenile
Court. It is the responsibility of the Immigration and Naturalization Service
to contact the embassy of the accused juvenile's nation.
8. If the foreign national is unable to
communicate in English, a supervisor will be contacted and every effort made to
obtain a translator [17]. Miranda warnings must be translated before a
questioning can begin [18]. The investigating officer will include the name,
address, telephone number and relationship of the translator to the
victim/witness in the Incident Report or Supplemental Report.
9. During major events such as the
Olympics, international sporting events, or international conferences, if a
foreign national who is officially connected with the event is arrested, the
District Attorney or his/her designee (Solicitor-General in misdemeanor cases)
should be immediately contacted by telephone and provided with oral summary of
the incident. The prosecuting attorney will advise the supervisor of any
special procedures which should be followed.
2. If a foreign national is arrested for
a felony, the U.S. Immigration and Naturalization Service (INS) will be
notified and provided with the name of the accused and the nature of the
charges [19] . By law, the INS is required to notify the appropriate consulate
or embassy if one of their citizens has been taken into custody by I.N.S. [20]
3. Contact INS at:
U.S. Immigration and Naturalization
Service
77 Forsyth Street, Suite G-89
Atlanta, Georgia 30303
Phone: 404-331-2765
END NOTES
1 Silver v. State , 147 Ga. 162, 166 -
167 (1917).
2 Harisiades v. Shaughnessy, 342 U.S.
580, 586, 72 S.Ct. 512, 96 L.Ed.2d 586, 597 (1951); Wong Wing v. United States
, 163 U.S. 228, 237, 16 S.Ct. 977, 41 L.Ed 140, 143 (1895).
3 For the purposes of this section,
arrest refers to a custodial arrest and detention and does not include a
release on citation. See U.S. Dept. of State, Memorandum, Notice for law
Enforcement Officials on Detention of Foreign Nationals (April 20, 1993)
(hereafter "Detention of Foreign Nationals"); Id., CONSULAR
NOTIFICATION AND ACCESS JANUARY 1998,
http://www.state.gov/www/global/legal_affairs/legal_adviser.html; Note, Motor
Vehicles: Traffic Citations , 79 Am. J. Int'l L. 1048 (1985).
4 Vienna Convention on Consular
Relations, Art. 36(1)(b), 21 U.S.T. 77, T.I.A.S. 6820, 596 U.N.T.S. 261
(hereafter referred to as the "Vienna Convention") was ratified by
the United States in 1969. ("U.S.T." refers to the United States
Treaties and International Agreements, the official compilation of treaties to
which the United States is a party and is comparable to the United States
Code.) As such it is part of the laws of the United States and its provisions
apply to the State of Georgia. See Flint River Steamboat Co. v. Foster, 5 Ga.
194, 195 (1848); Schofield v. Hertz Corp., 201 Ga. App. 830, 832 - 834 (1991);
Goldstein v. Goldstein , 229 Ga. App. 862, 665 (1997).
5 Vienna Convention, Art. 36(1)(b); U.S.
Dept. of State, Memorandum, Notice for law Enforcement Officials on Detention
of Foreign Nationals (April 20, 1993) (hereafter "Detention of Foreign
Nationals"); see also Rep. of Paraguay v. Allen, 134 F.3d 622, 625 (4th
Cir. 1998); Breard v. Pruett, 134 F.3d 615, 619 - 620 (4th Cir.), cert. denied
sub nom Breard v. Greene, ___ U.S. ___, 118 S.Ct. 1352, 140 L.Ed.2d 529, 63
Crim. L. Rep. 2026 (1998); Murphy v. Netherland, 116 F.3d 97, 99 - 101 (4th
Cir. 1997); Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir.), cert. denied, 519
U.S. 995, 117 S.Ct. 487, 136 L.Ed.2d 380 (1996); Kadish, Article 36 of the
Vienna Convention on Consular Relations: A Search for the Right to Consul , 18
MICH. J. OF INT'L L. 565 (1997) (hereafter "Kadish").
6 Vienna Convention , Art. 36(1)(b).
7 Vienna Convention , Art. 36(1)(c). See
Kadish, at 598.
8 Detention of Foreign Nationals; Id.,
CONSULAR NOTIFICATION AND ACCESS, at http://www.state.gov/www/about_state.
Compliance with these treaty obligations regarding notification "is
essential to insure that similar notice is given to U.S. diplomatic and
consular officials when U.S. citizens are arrested or detained abroad."
Id. "United States citizens are scattered about the world - as
missionaries, Peace Corps volunteers, doctors, teachers and students, as
travelers for business and for pleasure. Their freedom and safety are seriously
endangered if state officials fail to honor the Vienna Convention (on Consular
Relations) and other nations follow their example. Breard v. Pruett , 134 F.3d
at 622 (Butzner, J. concurring).
9 Id.
10 Consular treaties between the United
States and some mandatory notification countries provide for a longer period in
which the consulate or embassy must be notified. See e.g. 26 U.S.T. 687, Art.
38(2); 23 U.S.T. 2873, Art. 35(2). However, most require immediate
notification. For this reason, a policy of immediate notification, no later
than booking is strongly recommended.
11 CONSULAR NOTIFICATION AND ACCESS, at
p. 14.
12 Vienna Convention on Consular
Relations, Art. 6, 36(1)(c); see generally, Dupree v. United States, 559 F.2d
1151, 1154 (9th Cir. 1977); Breard v. Pruett, 134 F.3d at 619 - 620; Murphy v.
Netherland, 116 F.3d at 99 - 101; Faulder v. Johnson , 81 F.3d at 520.
13 Vienna Convention on Consular
Relations , Art. 36(1)(c) & 36(2).
14 Vienna Convention on Consular
Relations, Art. 6; see generally, Dupree v. United States , 559 F.2d at 1154.
15 Photocopying of passports, visa and
other documents of identification by which foreign nationals may enter or
remain in the United States, for law enforcement purposes is authorized by 18
U.S.C. § 1546(c).
16 Detention of Foreign Nationals .
17 The Supreme Court of Georgia, Office
of Commissions and Programs maintains a Registry of Foreign Language Interpreters.
The complete Registry is available on the Internet at
http://www.doas.state.ga.us/courts/supreme/cehome.htm or you may contact the
Office of commissions and programs at 404-463-6478.
18 See De La Fe v. United States , 413
F.2d 543 (5th Cir. 1969).
19 The arrest of a foreign national for
a violation of the laws of this State does not automatically lead to the
deportation of the individual. In most misdemeanor cases, the only action INS
will take is to notify the appropriate embassy or consulate if the individual
is not released on bond.
20 8 C.F.R. § 242.2. [Editor's note:
since replaced by 8 C.F.R § 236.1]
---------------
WISCONSIN DEPARTMENT OF JUSTICE GUIDE
FOR LAW ENFORCEMENT
CONTACTS WITH FOREIGN NATIONALS
http://www.doj.state.wi.us/news/files/LEGuide_ContactForeignNationals.pdf
(January 2008) (excerpts)
Right to Consul Notification
If law enforcement determines that the
arrested subject is a foreign national then law enforcement is obligated by the
VCCR to follow consular notification procedures. The procedure requires law
enforcement to advise the arrested subject of their right to have their
consular officials notified. Under the VCCR consular notification is an option,
as the arrested subject may choose to have his/her consulate notified or not
notified. However, the United States has also entered into bilateral agreements
with some countries which require consular notification regardless of the
arrested subject’s wishes.
[…]
Ramifications for Consul Notification
Violations
Under Wisconsin law, a consular
notification violation does not result in the suppression of evidence or any
other judicial remedy. However, compliance is important as following consular
notification rules ensures that Americans traveling abroad will receive similar
notification rights if they are arrested. Moreover the VCCR is a treaty between
nations and invokes international law. In the past the International Court of
Justice has been involved in cases of VCCR violations between countries. The
United States would like to avoid violating its international commitments and
law enforcement can help by avoiding violating consular notification rules.
Key Points
--The VCCR gives foreign nationals
the right to consular notification if arrested in the
--The best way to provide this
notification is during the booking process, and the Wisconsin Attorney General
recommends that during the booking process, an enquiry be made about the
detainee's immigration status
[...]
--Once the subject requests that their
consulate be notified, notification should be made as soon as possible.
------------
VERMONT DEPARTMENT OF
CORRECTIONS
http://www.doc.state.vt.us/about/policies/rpd/rpd/foreign-nationals
1. Upon
admission to a Vermont Department of Corrections’ facility, correctional
staff will review all
arrest paperwork
and/or interview the arrested individual to determine the person’s
country of origin
or
citizenship. Staff will determine an individual’s citizenship through a
passport, alien registration
paperwork,
or other official legal documentation.
2. If
no official paperwork is available, staff will interview the individual to
determine the country in
which the
individual was born. For all individuals born outside of the United States, and
who do not
carry proof
of US citizenship, correctional staff will proceed as if the individual is
still a citizen of
the country
in which they were born.
3. For
individuals who present proof of dual citizenship, in which one country’s
citizenship is the
United
States, no notification is required. For situations in which dual citizenship
is provided and the
individual
is not a citizen of the United States, correctional staff will notify both (or
all) of the
countries
in which the individual holds citizenship, as required by this administrative
directive.
4. Once
the country of origin is determined, correctional staff will notify the
individual of their right to
communicate
with their respective foreign consulate. The Superintendent will ensure that
telephone
contact
numbers of the nearest mandatory notification consulates/embassy offices will
be available
at the
booking desk and that the information is updated at least annually (or more
often as
necessary).
[...]
7. Notification Process:
When an arrested foreign national requests that their government be notified
of their arrest, or they are
from a country which requires mandatory notification, the notification
will be made at the time of
booking as follows:
a. Booking Officers will
immediately notify their supervisor if a foreign national is in the booking
area.
b. The Shift Supervisor will
complete the Foreign National Notification Transmittal (Attachment 2)
and immediately contact the
nearest consulate or official of that nation by telephone. If
telephone contact cannot be
made, the Shift Supervisor will fax the Foreign National
Notification Transmittal to
the consulate indicating the name of a facility Caseworker (or other
staff member) who will
function as the contact person for further information. The Booking
Officer will retain the fax
receipt and the Foreign National Notification Transmittal with the
individual’s booking
papers as evidence of the communication.
--------------
ARIZONA DEPARTMENT OF CORRECTIONS
http://www.azcorrections.gov/Zoya_dept_orders.aspx
DEPARTMENT
ORDER: 901
INMATE RECORDS INFORMATION AND COURT
ACTION
1.7 Criminal Aliens - As a
citizen of a country other than the United States, criminal aliens have the
right to contact the consulate of their country.
1.7.1 All criminal aliens shall be
reported to:
1.7.1.1 ICE Investigations Office for
determination of their deportation status and for subsequent administrative
hearings by the Executive Office for Immigration Review (EOIR).
1.7.1.2 The appropriate Consulate Office
as outlined in Attachment D, Required Foreign Consular Office Notification.
1.7.2 Institutions shall maintain copies
of Attachment A, Foreign Consular Offices in the United States, at every unit.
Inmates may make a written request to their assigned Correctional Officer (CO)
III for use of the toll-free number to contact the Consulate General of Mexico.
1.7.3 Reception Centers shall provide a
copy of the Notice of Consulate Assistance-Criminal Alien Inmates, Form
1004-24, to all Criminal Aliens received by the Department.
1.7.4 The CO III shall:
1.7.4.1 When requested by the inmate,
provide Criminal Aliens the address of the appropriate Consular Office. If the
information for the Consular Office requested is not listed, the CO III shall
contact the Offender Services Operations Special Services Unit to obtain the
information.
1.7.4.2 Ensure that all Criminal Aliens
assigned to their caseload have received and signed a copy of the Notice of
Consulate Assistance-Foreign Born Inmates.
DEPARTMENT ORDER: 1004
INMATE
TRANSFER SYSTEM
1.6 Reception Center Procedures for
Identification of Foreign Born Inmates - Reception Center intake staff
shall ensure that:
1.6.1 During the initial AIMS data entry
for a newly committed inmate, the accurate "Citizenship" and
"Place of Birth" are entered into the AIMS Personal Characteristics
screen.
1.6.2 During the in-take process, all
foreign born inmates:
1.6.2.1 Receive the Listing of
Participating Countries, Attachment D, and the Informational Handout for
Non-U.S. Citizens (English/Spanish), Attachment E.
1.6.2.2 Who are Citizens of Mexico, also
receive handouts provided by their government. (See Attachment A.)
1.6.2.3 Are advised of their right to
contact the consulate of their country in accordance with Department Order
#901, Inmate Records Information and Court Action.
1.6.2.4 Are provided a copy of the
Notice of Consulate Assistance-Foreign Born Inmates, Form 1004-24P or, if
appropriate, Form 1004-24PS, the Spanish version.
------------
CALIFORNIA COMMISSION ON PEACE OFFICER STANDARDS AND
TRAINING
http://post.ca.gov/Data/Sites/1/post_docs/bulletin/2005-09.doc
Date: May 25, 2005
Bulletin: No. 2005-09
Subject:
The
1969 Vienna Convention on Consular Relations (VCCR) Treaty, Article 36,
requires that an officer who arrests a citizen of a foreign country that is a
VCCR signatory must:
·
Advise the
arrestee of his/her right to have consular officials promptly notified of the
arrest. (Note: Mandatory notification of consular officials is required if the arrestee is a citizen
of 58 list nations, even if the arrestee does not request notification.)
·
Permit contact
visits if requested by the arrestee.
California Penal Code §834c
codifies the same provisions and mandates that officers must:
·
Give the
consular advice
·
Make appropriate
notifications to consular officials
·
Permit
correspondence and visits if the foreign national is booked or is detained for
more than two hours.
The treaty provisions are
reciprocal and benefit
Police Department
Patrol Manuals
Many local police
departments across the United States have now amended their patrol manuals or
policy directives to include detailed consular notification procedures that
must be followed whenever known or suspected foreign nationals are detained.
NYPD Patrol Manual
Procedure No. 208-56 Date Effective:
02-28-01
ALIENS
Purpose
To process arrests of aliens.
Definition
ALIEN: Any person who is not a citizen
of the United States, regardless of immigration status or length of residency
COUNTRIES WHOSE EMBASSIES OR CONSULATES
MUST BE NOTIFIED WHEN ONE OF THEIR
CITIZENS/NATIONALS IS ARRESTED:
[List of "mandatory
notification" countries]
PROCEDURE
When a person arrested is an alien,
comply with appropriate processing procedures and:
ARRESTING OFFICER
1. Enter all of the following
information in the "Narrative" portion of the ON LINE BOOKING SYSTEM
WORKSHEET (PD244-159):
a. Country of nationality
b. Port or place of entry and status
upon entry to the United States (e.g. resident, visitor, student, etc.)
c. Method of entry (airplane, auto, boat
etc.)
d. Date entered the United States
NOTE: If doubt exists as to the
status of the prisoner, enter "suspected alien" under
"Narrative".
ARRESTING OFFICER
2. Determine from the above list if
prisoner's embassy or consulate must be notified.
NOTE: If the prisoner is from one of
the countries listed, the embassy or consulate must be notified, regardless of the
prisoner's wishes to the contrary. This notification must also be made even
though a DESK APPEARANCE TICKET may be issued.
WHEN NOTIFICATION MUST BE MADE:
ARRESTING OFFICER
3. Contact the Inter-City Correspondence
Unit.
4. Provide members at Inter-City
Correspondence Unit with the following information:
a. Prisoner's name and address
b. Date of arrest
c. County of arrest
d. Major charge(s)
e. Exact location where prisoner is
being detained
f. Telephone numbers of both the command
of arrest and the borough court section.
5. Obtain from the Inter-City
Correspondence Unit the following:
a. The name of the member contacted
b. A log number.
6. Enter this information in the
"Narrative" portion of the ON LINE BOOKING SYSTEM ARREST WORKSHEET.
INTER-CITY CORRESPONDENCE UNIT MEMBER
7. Notify the embassy or consulate
concerned.
WHEN NOTIFICATION IS NOT MANDATED (THE
PRISONER IS NOT FROM A COUNTRY LISTED ABOVE)
ARRESTING OFFICER
8. Inform prisoner of right to have
embassy or consulate notified.
9. Follow steps 3, 4, 5, and 6 if
prisoner requests that embassy or consulate be notified.
A. Should the prisoner elect not to have
the embassy or consulate notified enter this information in the
"Narrative" portion of the ON LINE BOOKING SYSTEM ARREST WORKSHEET.
DESK OFFICER/BOROUGH COURT SECTION
SUPERVISOR
10. Ensure that arresting officer has
contacted the Inter-City Correspondence Unit when notification to the
prisoner's embassy or consulate is required or in other cases when an arrested
alien has so requested.
ADDITIONAL DATA
Arresting officers will contact the
Intelligence Division if they experience any unusual circumstances or have
questions regarding the arrest processing of an alien.
RELATED PROCEDURES
Mayor's Executive Order No. 124- New York
City Policy Regarding Aliens (P.G. 212-66)
FORMS AND REPORTS
ON LINE BOOKING SYSTEM ARREST WORKSHEET
(PD 244-159)
DESK APPEARANCE TICKET
---------------------
Los Angeles Police Department Patrol
Guide
Volume 4 sec. 284.46 RIGHTS OF ARRESTED FOREIGN
NATIONALS
Officers' Responsibilities. Officers
arresting or detaining a foreign national shall notify Detective Headquarters
Division (DHD) of the arrest or detention whether or not the foreign national
wants the consulate notified.
Note: Section 4/284.10 defines those
persons protected by unlimited immunity from arrest or detention.
DHD Responsibilities. Detective
Headquarters Division shall be guided by the Department of State Guidelines
Regarding Foreign Nationals Arrested or Detained in the United States, and make
the appropriate notifications to the concerned consular officials.
Watch Commander's Responsibility. The
Watch Commander of the concerned custodial facility shall ensure that the
arrestee is allowed to communicate, correspond with, and be visited by consular
officials of his country.
Volume 4 sec.618. ARREST OF BRITISH
NATIONALS
618.20 NOTIFICATION OF ARREST. When an
arrestee claims to be a British national, the jailer shall notify Detective
Headquarters Division of the arrestee's name, the booking number, and the
charge.
618.40 COMMUNICATIONS WITH PRISONERS BY
BRITISH CONSUL. Upon presentation of his credentials, a British Consular
Officer shall be permitted to visit with any British national in custody and to
arrange for legal representation. Any communication directed to the British
Consul by a British national in custody shall be forwarded without delay.
Volume 2 sec.310.15 COMMUNICATIONS
DIVISION-SPECIAL DUTIES. Communications Division is responsible for the
following special duties:
Foreign National log of incidents,
arrests, deaths, and notifications to consul officer;
Maintaining list of consul offices;
604.41 ARRESTEE BIRTHPLACE INFORMATION.
When an arrestee is booked into Department custody and the city, county, state,
and country of the arrestee's birthplace is known or can be obtained, that
information shall be entered in the birthplace (BP) field of the Decentralized
Automated Booking Information System (DABIS) "DBK 1" screen at the
time of booking.
Note: When the arrestee is foreign born,
the booking employee shall ensure that an "X" is entered as the first
character in the birthplace field.
Volume 2, sec. 216.10 CONSULAR CORPS
LIAISON-FUNCTIONS.
The Consular Corps Liaison shall be
responsible for:
Developing and maintaining liaison
between the Department and Consulate offices located within the City;
Maintaining a record of aggravated
incidents involving consular officers or members of their family;
Reporting to the Chief of Staff on
Department contacts with consular officers; and,
Maintaining liaison with the United
States Department of State on issues relating to consular officers.
--------------
Lubbock (Texas)
Independent School District Police—Rules
and Procedures
Arrest Procedures
Section 7
H. U.S. DEPARTMENT OF
STATE NOTIFICATION REQUIRED
In some cases, U. S. International Treaty obligations require notification to
foreign authorities when foreign nationals are arrested or otherwise detained
in the United States.
1.The arresting official
should in all cases immediately inform the foreign national of his right to
have his government notified concerning the arrest/detention.
2. In the foreign
national asks that such notification be made, an officer should do so without
delay by informing the nearest consulate or embassy.
3. Foreign consular
officials have a treaty right to visit their arrested/detained countrymen
unless the arrestee/detainee objects to such visits.
4. In the case of
certain countries, immediate notification is mandatory regardless of whether
the arrestee/detainee so wishes. These countries are : [listed]
-------------
County of Suffolk (New
York) Police Department Directive
www.co.suffolk.ny.us/police/documents/16-4.pdf
SECTION
4: TITLE: ARREST OF NON-U.S. CITIZENS AND PERSONS WITH DUAL CITIZENSHIP
D. Consular
Notification – In addition to the above, the following procedures shall
be adhered to when a Member of the Service knows or reasonably suspects that
the defendant is not a U.S. citizen:
1. Determine
the person’s country of origin and contact the Communications Section
supervisor to determine if the foreign national’s country is on the
mandatory notification countries list. (A list is provided as an exhibit to
this Order)
2. If an
interpreter will be required to facilitate communications with the subject an
interpreter may be requested through the Communications Section supervisor.
[...]
6. If the foreign national’s
country IS NOT on the mandatory notification countries list, the arresting
officer shall:
a. Offer, without delay, to
notify the person’s consular officials of the arrest, using the U.S.
State Department’s recommended statement: “As a non-U.S. citizen
who is being arrested or detained, you are entitled to have us notify your
country’s consular officers here in the United States of your situation.
You are also entitled to communicate with your consular officers. A consular
officer may be able to help you obtain legal representation, and may contact
your family and visit you in detention, among other things. If you want us to
notify your consular officers, you can request this notification now, or at any
time in the future. Do you want us to notify your consular officers at this
time?”
b. If the foreign national
asks that consular notification be given, the arresting officer shall contact
the desk supervisor or Officer in Charge, who then shall:
(1) Notify the foreign
national’s nearest consular officials, without delay, of the arrest.
(2) Advise the arresting
officer or detective of the date, time and name/title of the consular official
receiving such notification and any instructions given.
(3) Advise the
Communications Section Supervisor so that the matter may be annotated in the
Communications Section Confidential Log.
7. Members of the Service
must document these notifications and actions taken on the arrestee’s
Prisoner Activity Log (PDCS-2032).
8. Pursuant to U.S. State
Department guidelines a consular officer may visit a foreign national from
their country that is in police custody. In the event a personal visit is made,
the appropriate
entry must be recorded on
the arrestee’s Prisoner Activity Log (PDCS-2032).
Procedural Rules and Guidelines for
Judges
While the obligation to inform
foreign nationals of their consular rights without delay rests with the
arresting authorities, judicial oversight of the process serves to ensure full
and prompt compliance by local law enforcement. The development
of procedural rules for judges is still at an early stage of development
and the currently suggested procedures vary widely, but some basic principles
can be gleaned from these early efforts.
Those principles include:
1) The nationality of defendants should
be established for the record at the earliest opportunity by the presiding
judge;
2) Judges should determine that
notification of consular rights has taken place at the first court appearance
of the detainee;
3) The formal notification of consular
rights and any follow-up actions should be filed as part of the case record and
conveyed to the trial court;
4) Judges should be prepared to stay the
proceedings or take any other corrective measures they deem to be appropriate
in order to safeguard and vindicate the consular rights of defendants and
consulates;
5) Consular representatives should be
afforded standing before the courts, whenever the consulate is intervening to
assist its national.
-------------------
PROPOSED AMENDMENT TO FEDERAL RULES
OF CRIMINAL PROCEDURE
In August 2010, the
Advisory Committee on Criminal Rules recommended a change to the Federal Rules
of Criminal Procedure that would require federal court judges to comply with
consular information and notification obligations at the initial court
appearance of a non-citizen. The proposed changes to the initial appearance
procedures read:
Rule 5. Initial
Appearance
(d) Procedure in a
Felony Case.
(1) Advice. If the defendant is
charged with a felony, the judge must inform the defendant of the
following:
[...]
(F)
if the defendant is held in custody and is not a United States citizen,
that an attorney for the government or a federal law enforcement officer
will:
(i)
notify a consular officer from the defendant’s country of nationality
that the defendant has been arrested if the defendant so requests; or
(ii)
make any other consular notification required by treaty or other international
agreement.
Rule 58. Petty
Offenses and Other Misdemeanors
(b) Pretrial
Procedure.
(2) Initial Appearance. At the
defendant’s initial appearance on a petty offense or other misdemeanor
charge, the magistrate judge must inform the defendant of the following:
[...]
(H)
if the defendant is held in custody and is not a United States citizen,
that an attorney for the government or a federal law enforcement officer
will:
(i)
notify a consular officer from the defendant’s country of nationality
that the defendant has been arrested if the defendant so requests; or
(ii)
make any other consular notification required by treaty or other international
agreement.
--------------
From: Consular Notification and
Access, U.S. Department of State
http://travel.state.gov/law/consular/consular_753.html
Q. What is the responsibility of
judicial officials for notification of arrests and detentions?
A. The Department of State requests that judicial officials who preside over
arraignments or other initial court appearances of foreign nationals inquire at
that time whether consular notification procedures have been followed as
required by the VCCR and any applicable bilateral agreement providing for
mandatory notification. Some states have taken steps to have their magistrate
judges address consular notification requirements at arraignment. Such
inquiries will help promote compliance with consular notification procedures,
facilitate the provision of consular assistance by foreign governments to their
nationals, and ensure that consular notification compliance does not become an
issue in litigation.
Q. Who is responsible for notifying the
consular officers of arrests and detentions?
A. The law enforcement officers who
actually make the arrest or who assume responsibility for the foreign
national’s detention normally should provide the foreign national with
the required consular notification information, and make any required
notification to the foreign national’s consular officers, unless a
relevant
implementing statute, regulation, or instruction provides for a different
procedure (or if the person’s foreign nationality is not known and cannot
be determined at the time of arrest).
[....]
In some jurisdictions, magistrate or
other judges are being asked to verify or ensure at the time of arraignment
that consular notification procedures have been or are followed. If the
person’s foreign nationality becomes known prior to arraignment, however,
consular notification procedures should be followed at that time, to ensure
full compliance with applicable requirements.
-----------------
TEXAS ATTORNEY GENERAL MANUAL
In January 2000, the Office of the
Texas Attorney General printed and distributed a manual entitled Magistrate's Guide to the Vienna Convention
on Consular Notifications [sic]. The manual provides instructions and
information to Texas judicial authorities on obligations under the VCCR and
outlines suggested notification procedures. Curiously, the manual implies that
the obligation to inform foreign nationals of their consular rights and to
notify the consulate rests with the arraigning magistrate--contrary to the
instructions provided by the US Department of State and the plain intent of the
treaty.
From: Magistrate's Guide to
the Vienna Convention on Consular Notifications [sic]
https://www.oag.state.tx.us/criminal/consular.shtml
Steps to follow when a Foreign National
is Arrested or Detained
1. It is imperative that the
determination of citizenship be on the record. Courts of record should
ensure that the court reporter records all information regarding
determination of citizenship, advisement or rights, and actions taken. Courts
not of record should record in the docket all information
establishing citizenship, including the responses of the defendant, advisement
or rights, and actions taken. In addition, warning forms should include Vienna
Convention warnings in the event that a foreign national is arrested or
detained.
2. Determine the defendant's
citizenship. This can be established by asking place of birth of the defendant,
whether the defendant was born out of the United States, or whether the
defendant has been naturalized under the Constitution and laws of the United
States. In the absence of other information to the contrary, assume this is the
country on whose passport or other travel document the foreign national
travels.
3. If the foreign national's country of
citizenship is not on the mandatory notification list on the next
section:
* Offer without delay, to notify the foreign
national's consular officials of the arrest/detention. For a suggested
statement to the foreign national see Addendum One, attached
herewith. Translations of the statement into selected foreign languages are
also attached as Addendum Two.
* If the foreign national asks that the
consular notification be given, notify the nearest consular officials of the
foreign national's country of citizenship without delay. For phone and fax
numbers to foreign embassies and consulates in the United States, see the attached
Addendum Three. A suggested Fax sheet for complying with the
notification is attached as Addendum Four.
4. If the foreign national's country of
citizenship is on the list of mandatory notification countries on
the next section:
* Notify that country's nearest consular
officials, without delay, of the arrest/detention regardless of the foreign
national's wishes. Phone and fax numbers for the mandatory countries are
included in the attached Addendum Three. The suggested fax sheet
in Addendum Four may also be used to comply with the notification
requirement to the mandatory countries.
* Inform the foreign national that you
are making this notification. The suggested statement for this situation is
also found in Addendum One as are the translations into selected
languages.
-------------------
From Consular
Protection of Foreign Nationals Subject to the Uniform Code of Military
Justice,
AR 27-52
1.6 Record of trial.
A copy of the notice made pursuant to
this regulation will be incorporated as part of the allied papers of the
court-martial record of trial, if any.
------------------
OFFICE OF THE HUDSON COUNTY PROSECUTOR
Jersey City, New Jersey
January 5, 1998
Honorable Arthur N. D'Italia, A.J.S.C.
Re: Vienna Convention on Consular
Relations & Optional Protocol On Disputes
Dear Judge D'Italia,
In the course of litigating State v.
Carlos Cevallos Bermeo on Indictment No. 323-02-96, the above-mentioned
Treaty and the compliance by the State with Article 36 (b) of the Treaty has
come into issue. By this letter, I am requesting that at the time of the first
appearance at Central Judicial Processing the Presiding Judge, on the record,
inform all defendants that:
If you are a citizen of another country,
you have the right to contact the local consulate of your home country.
The use of Central Judicial Processing
to make this notification is suggested because it will insure that an
independent, non-adversarial notification is made. Since the notification is
not considered to be notification of a "right", a waiver by the
charged defendant is not necessary. The use of Central Judicial Processing will
assure that the notification is recorded.
I am prepared to discuss this request
with you at your convenience.
Respectfully yours,
Fred J. Theemling, Jr.
Prosecutor of Hudson County
-------------
March 6 1998
Hon. Fred J. Theemling, Jr.
Re: Notice to Defendants of Rights
Under Vienna Convention on Consular Relations
Dear Prosecutor Theemling:
As you are aware, I have directed the
judges presiding at the Central Judicial Processing Unit to inform defendants
that, if they are a citizen of another Country, they have a right to contact
the local consulate of their home Country.
I bring your attention to the fact that
the relevant Article of the Convention provides that, if the foreign national
so requests, "the competent authorities of the receiving State" shall
inform the Consular post of the foreign national that one of its citizens has
been arrested. Federal policy is consistent with the clear intent of the Treaty
that notice to the defendant as well as to the Consulate are given by the law
enforcement agency. The Code of Federal Regulations provide that, "In
every case in which a foreign national is arrested the arresting officer shall
inform the foreign national that his consul will be advised of his arrest
unless he does not wish such notification to be given." 28 C.F.R. § 50.5.
The notice presently being given at the
Central Judicial Processing Unit places the Court in the position of giving a
notice that should be provided by law enforcement. Moreover, the notice is not
strictly compliant with the Treaty, which requires that law enforcement inform
the local Consulate of the arrest if the defendant so desires.
I assume that the issues raised by the
Treaty have been brought to the attention of the Attorney General for
consideration of development of a statewide policy. Please keep me informed of
developments to the extent you deem appropriate.
Very truly yours,
Arthur N. D'Italia, A.J.S.C.
-------------
MICHIGAN SUPREME COURT MEMO
http://www.courts.michigan.gov/scao/resources/other/scaoadm/2002/2002-09.pdf
Michigan Supreme Court
State Court Administrative Office
M E M O R A N D U M
DATE: July 26, 2002
TO: Chief Judges
cc: Circuit Court Administrators, Probate Court Administrators, Probate
Registers,
District Court Administrators
FROM: John D. Ferry, Jr.
SUBJ: SCAO Administrative Memorandum 2002-09
Consular Notification and Access
Introduction
The United States is subject to various
international legal obligations requiring in certain situations affecting a
foreign national in this country that the foreign national’s consulate be
contacted. One of these legal obligations comes from the United States being a
signatory to the Vienna Convention on Consular Relations (VCCR). Other such
obligations arise from numerous bilateral agreements the United States has
entered into with individual nations. The VCCR and the bilateral agreements
have the status of treaties for purposes of international law and Article VI,
clause 2, of the United States Constitution. As such, they are binding on
federal, state, and local government officials to the extent they pertain to
matters within such officials’ competence. Court-relevant consular
notification requirements arise in four types of situations: arrests and
detentions of foreign nationals; deaths of foreign nationals;
appointments of guardians or trustees for foreign nationals; and accidents
involving foreign ships or aircraft.
Arrests and Detentions of Foreign
Nationals [...]
The United States Department of State,
through its publication, Consular Notification and Access (hereafter, CNA),
indicates that the term “competent authorities” is
“understood to mean those officials, whether federal, state, or local,
who are responsible for legal action affecting the foreign national and who are
competent, within their legal authorities, to give the notification
required.” [CNA, p.18] Hence, the “law enforcement officers who
actually make the arrest or who assume responsibility for the alien’s
detention ordinarily should make the notification” in cases of arrest or
detention. [CNA, p.18] In these types of cases, however, the State Department
does suggest a role for the judiciary:
Because they do not hold foreign
national in custody, judicial officials and prosecutors are not responsible for
notification. The Department of State nevertheless encourages judicial
officials who preside over arraignments or other initial appearances of aliens
in court to inquire at that time whether the alien has been provided with
consular notification as required by the VCCR and/or any bilateral agreement
providing for mandatory notification. [CNA, pp.18-19]
The State Department indicates that
detention prompting consular notification can include detention in a hospital,
“if the foreign national is detained pursuant to governmental authority
(law enforcement, judicial, or administrative) and is not free to leave.”
[CNA, p.19] Hence, it would appear that in cases of the court ordered
involuntary commitment of a mentally ill foreign national to a hospital that
the relevant court may be the competent authority for consular notification
purposes.
Professional
Standards for Defense Counsel
Illinois Institute for
Continuing Legal Education, Guide for Defending Illinois Criminal Cases,
§ 4.2 (2003):
“Attorneys should
advise all non-citizens clients that they have the right to consular
notification of
their arrest under the
Vienna Convention and that such notification request should be made part of any
assertion of rights to silence and counsel . . . . [A]ttorneys representing
non-citizens clients should advise them to invoke the Vienna Convention rights
to the police and prosecutors at the police station and to the judge at the
initial court appearance and should raise the issue during any motion to
suppress statements.”
-------------
State Bar of
Guidelines and
Standards for Texas Capital Counsel
(adopted April 21, 2006)
GUIDELINE 10.3
Additional Obligations of Counsel Representing a Foreign National
A. Counsel at every
stage of the case should make appropriate efforts to determine whether any
foreign country might consider the client to be one of its nationals.
B. Counsel representing
a foreign national should:
1. Immediately determine
if the client’s ability to communicate with counsel, in English, is
sufficient to allow counsel and the client to adequately communicate. Counsel
must recognize that some foreign nationals speak in dialects of which counsel
may be unfamiliar, resulting in unintended miscommunication.
2. If there are any
language conflicts, counsel should immediately request the court to appoint an
appropriate interpreter to assist the defense in all stages of the proceeding,
or counsel may request permission to withdraw due to language problems. It is
highly recommended that both lead and associate counsel have adequate
communication with the defendant, rather than just one of counsel.
3. Immediately advise
the client of his or her right to communicate with the relevant consular
office; and
4. Obtain the consent of
the client to contact the consular office. After obtaining consent, counsel
should immediately contact the client’s consular office and inform it of
the client’s detention or arrest. Counsel who is unable to obtain consent
should exercise his or her best professional judgment under the circumstances.
-------------
American Bar
Association, Guidelines for the Appointment and Performance of Defense
Counsel in Death Penalty Cases, § 10.6 (February 2003):
Additional Obligations
of Counsel Representing a Foreign National
A. Counsel at every
stage of the case should make appropriate efforts to determine whether any
foreign country might consider the client to be one of its nationals.
B. Unless predecessor
counsel has already done so, counsel representing a foreign national should:
1. immediately advise
the client of his or her right to communicate with the relevant consular
office; and
2. obtain the consent of
the client to contact the consular office. After obtaining consent, counsel
should immediately contact the client’s consular office and inform it of
the client’s detention or arrest.
European Union model Letter of Rights
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:142:0001:0010:EN:PDF
Directive 2012/13/EU on the Right to
Information in Criminal Proceedings (June 1, 2012) outlines the procedural
rights that all persons suspected or accused of a criminal offense must be
informed of ‘promptly’ by member States (such as the right of access to counsel and the right to
remain silent). Suspects must also be provided with a Letter of Rights that
outlines these procedural safeguards ‘in simple and accessible
language’, including the right to consular notification and communication
(Article 4 (2)(b)). The suggested wording for this right is:
“If you are a foreigner, tell the
police if you want your consular authority or embassy to be informed of your
detention. Please also tell the police if you want to contact an official of
your consular authority or embassy.”
Article 8(2) of the Directive further
requires:
2. Member States shall ensure that suspects or accused persons or their lawyers have the right to challenge, in accordance with procedures in national law, the possible failure or refusal of the competent authorities to provide information in accordance with this Directive.
----------------
Australia
CRIMES ACT 1914 - SECT 23P
Right of non-Australian nationals to
communicate with consular office
(1) Subject to section 23L, if a person
who is under arrest or a protected suspect is not an Australian citizen, an
investigating official must, as soon as practicable:
(a) inform the person that if he or she
requests that the consular office of:
(i) the country of which he or she is a citizen; or
(ii) the country to which he or she claims a special connection;
be notified that he or she is under arrest or a protected suspect (as the case
requires), that consular office will be notified accordingly; and
(b) if the person so requests—notify that consular office accordingly;
and
(c) inform the person that he or she may communicate with, or attempt to
communicate with, that consular office; and
(d) give the person reasonable facilities to do so; and
(e) forward any written communication from the person to that consular office;
and
(f) allow the person a reasonable time to, or to attempt to, communicate with
that consular office.
(2) Without limiting subsection (1), an
investigating official must not start to question the person unless paragraphs
(1)(c), (d) and (f) have been complied with.
--------------
New South Wales Consolidated Acts
CRIMES ACT 1900 - SECT 356O
Right–of foreign national to
communicate with consular official
356O Right of foreign national to
communicate with consular official
(1) This section applies to a person who
is detained under this Part and who is not an Australian citizen or a permanent
Australian resident.
(2) Before any investigative procedure
in which a person to whom this section applies is to participate starts, the
custody manager for the person must inform the person orally and in writing
that he or she may:
(a) communicate, or attempt to
communicate, with a consular official of the country of which the person is a
citizen, and
(b) ask the consular official to attend at the place where the person is being
detained to enable the person to consult with the consular official.
(3) If the person wishes to communicate
with such a consular official, the custody manager must, as soon as
practicable:
(a) give the person reasonable
facilities to enable the person to do so, and
(b) allow the person to do so in circumstances in which, so far as is
practicable, the communication will not be overheard.
(4) The custody manager must defer for a
reasonable period any investigative procedure in which the person is to
participate:
(a) to allow the person to make, or
attempt to make, the communication referred to in subsection (2), and
(b) if the person has asked any consular official so communicated with to
attend at the place where the person is being detained:
(i) to allow the consular official to arrive at that place, and
(ii) to allow the person to consult with the consular official.
(5) If the person has asked a consular
official communicated with to attend at the place where the person is being
detained, the custody manager must allow the person to consult with the
consular official in private and must provide reasonable facilities for that
consultation.
(6) An investigative procedure is not
required to be deferred under subsection (4) (b) (i) for more than 2 hours to
allow a consular official that the person has communicated with to arrive at
the place where the person is being detained.
(7) An investigative procedure is not
required to be deferred to allow the person to consult with a consular official
who does not arrive at the place where the person is being detained within 2
hours after the person communicated with the consular official.
(8) After being informed orally and in
writing of his or her rights under this section, the person is to be requested
to sign an acknowledgment that he or she has been so informed.
(9) This section does not apply if the
custody manager did not know, and could not reasonably be expected to have
known, that the person is not an Australian citizen or a permanent Australian
resident.
-----------
Victoria Consolidated Acts
CRIMES ACT 1958 - SECT 464F
464F.–Right of foreign national to
communicate with consular office
(1) If a person in custody is not a citizen
or permanent resident of Australia, the investigating official in whose custody
the person then is must, before any questioning or investigation under section
464A(2) commences, inform the person in custody that he or she may communicate
with or attempt to communicate with the consular office of the country of which
the person is a citizen and, unless the investigating official believes on
reasonable grounds that-
(a) the communication
would result in the escape of an accomplice or the fabrication or destruction
of evidence; or
(b) the questioning
or investigation is so urgent, having regard to the safety of other people,
that it should not be delayed-
the investigating official must defer
the questioning or investigation for a time that is reasonable in the
circumstances to enable the person to make, or attempt to make, the
communication.
(2) Subject to
sub-section (1), if a person referred to in that sub-section wishes to
communicate with the consular office of the country of which he or she is a
citizen, the investigating official in whose custody the person then is must
afford the person reasonable facilities as soon as practicable to enable the
person to do so.
(3) This
section does not apply to questioning or investigation in connection with an
offence under section 49(1) of the Road Safety Act 1986.
-------------
Queensland
Police
Powers and Responsibilities Act 2000
Right of visiting foreign national to communicate with
embassy etc.
(1) This section applies
to a relevant person who is not—
(a) an Australian
citizen; or
(b) a foreign national
with a right of residence in Australia.
(2) Before a police
officer starts to question the person, the police officer must inform the
person that he or she may telephone, or attempt to telephone, the embassy or
consular office of the country of which the person is a citizen.
(3) If the person wishes
to telephone the appropriate embassy or consular office, the police officer
must—
(a) as soon as
practicable, make available to the person reasonable facilities for the
purpose; and
(b) delay the
questioning for a reasonable time to allow the person to telephone, or attempt
to telephone, the appropriate embassy or consular office.
Police Powers and
Responsibilities Regulation 2000
Schedule 10
Right of visiting foreign national to communicate with
embassy etc.
(1) This section applies if a police officer reasonably suspects a relevant
person may have the right to telephone or attempt to telephone the embassy
or consular office of the country of
which the person is a citizen.
(2) For deciding
whether the relevant person has the right to telephone or attempt to telephone
an embassy or consular office, a police officer may ask the relevant
person a question, other than a question related to the person's involvement in
’he offence for which the person is to be questioned.
(3) If the police officer reasonably suspects the person has the right to
telephone or attempt to telephone an embassy or consular office, the police
officer must inform the relevant person of the right in a way substantially
complying with the following 'Before I ask you ‘ny questions I must tell
you that you have the right to telephone, or attempt to telephone, the embassy
or consular office of the country of which you are a citizen. Do you want to
telephone your embassy or consular office?'.
(4) If the police officer reasonably suspects the relevant person does not
understand the advice, the police officer may ask the person to explain the
advice in his or her own words.
(5) If necessary, the police officer must further explain the advice.
-------------
UK Codes of Conduct
Like most Commonwealth nations, the
United Kingdom does not recognize the doctrine of "self-executing"
treaties. Once a treaty has been ratified, any of its provisions that require
changes to domestic policies or procedures are enacted through separate
implementing legislation.
The rules governing apprehension,
arrest, detention, questioning and other situations surrounding the custody of
an individual in England and Wales are set down in the Police and Criminal
Evidence Act of 1984 (PACE). The act is supplemented by the Codes of Conduct,
which give practical guidance in the treatment of suspects, prisoners and
defendants. Where a citizen of an independent Commonwealth country or a
national of a foreign country is in police detention, that person has the right
to contact his High Commission or consulate as provided for in Code C, Section
7. This is a codification of the right to consular notification as required by
the VCCR.
Section 7.1 states:
A citizen of an independent Commonwealth
country or a national of a foreign country (including the Republic of Ireland)
may communicate at any time with his High Commission, Embassy or Consulate. He
must be informed of this right as soon as practicable. He must also be informed
as soon as practicable of his right, upon request to have his High Commission,
Embassy or Consulate told of his whereabouts and the grounds for his detention.
Such a request should be acted upon as soon as practicable.
Section 7.4 states:
Any other foreign national who is
detained must be informed as soon as practicable of his right to communicate
with his consul if he so wishes. He must also be informed that the police will
notify his consul of the arrest if he wishes.
Code D, paragraph 7.2 provides that if a
person is a citizen of a country that has a bilateral consular convention or
agreement, the embassy should be informed of the detention as soon as
practicable. However, this requirement is subject to Code C, paragraph 7.4,
which provides that where the person is a political refugee (whether for
reasons of race, nationality, political opinion or religion) or is seeking
asylum, a consular official must not be informed or given information unless
the detained person requests it.
Both the language and intent of these
provisions are remarkably similar to US federal regulations governing arrest
procedures for federal agencies. As with the Department of Justice and military
regulations, the language of the procedure to be followed is explicit and
mandatory. The procedure established by these regulations closely adheres to
the plain language of VCCR Articles 36(1) and (2).
-------------
Canada
RCMP Operational Manual
Canada ratified the VCCR without
reservations in 1974. While other core provisions of the treaty have been
incorporated into domestic law via the Foreign Missions and International Organizations Act (1991), the
Convention’s requirements that foreign detainees be advised of their
consular rights without delay have not been incorporated. In consequence, there
is no domestic legal requirement that police provide timely advisement, and
Canadian courts have typically found no grounds for judicial remedies when the
treaty was breached. See, e.g., R. v. Partak, [2001] 160 C.C.C. (3d) 553;
Canada v. Van Bergen, 261 A.R. 387, 390 (2000); but see Omar Khadr v. Minister
of Foreign Affairs, 2004 FC 1145 (recognizing the holding of the
International Court of Justice in LaGrand that VCCR article 36 confers rights
on individuals).
There is empirical evidence that
domestic non-compliance is widespread. However, apart from a brief reference in
the operational manual of the Royal Canadian Mounted Police (Canada’s
federal police agency), most domestic police departments appear to have no
guidelines for consular advisement and notification when foreigners are
detained or arrested.
RCMP Operational Manual OM-111.2F
An RCMP officer making an
arrest “should immediately inform a person who is not a Canadian
citizen/landed immigrant of his/her right to contact a representative of his
country.”
----------------
New Zealand Bill of
Rights Act (BORA) notification form
NOTICE TO PERSON IN CUSTODY
As an accused person you are entitled to
communicate without delay with, and be visited by, a solicitor of your choice.
If you are an accused person on
overnight arrest you are also entitled to communicate with and be visited by your family or a friend;
if no family is available, a medical practitioner, minister of religion, andif
you are an alien, by your diplomatic or consular representative. If you are
an accused person in custody for a longer period you are also entitled to be
visited by your friends and social workers.
The visits referred to in the above
paragraph are subject to the necessity of the Police to prevent interference
with witnesses, the suppression of evidence, or the passing of information
which may assist you to escape or assist your accomplices.
The Police (unless forbidden to do so by
you) will contact a nominated relative or friend for you, unless impractical
and inform him of your arrest, the charges, and whether you are bailable.
However, if you are under 17 years of
age, your spouse, parent or guardian will be informed irrespective of your
wishes.
I have read the above
information._________________________________
(Signature) (Date)
------------
Ireland
CRIMINAL JUSTICE ACT, 1984 (TREATMENT OF
PERSONS IN CUSTODY IN GARDA SÍOCHÁNA STATIONS) REGULATIONS 1987 - REG 14
14 Foreign nationals. 14. (1) The member
in charge shall without delay inform or cause to be informed any arrested
person who is a foreign national that he may communicate with his consul and
that, if he so wishes, the consul will be notified of his arrest. The member in
charge shall, on request, cause the consul to be notified as soon as
practicable. Any communication addressed to him shall be forwarded as soon as
practicable.
(2) Consular officers shall be entitled
to visit one of their nationals, or a national of another State for whom, by
formal or informal arrangement, they offer consular assistance, who is an
arrested person and to converse and correspond with him and to arrange for his
legal representation.
(3) This Regulation is without prejudice
to the application to a national of a foreign country of the provisions of a
consular convention or arrangement between the State and that country.
(4) If the member in charge has
reasonable grounds for believing that an arrested person who is a foreign
national is a political refugee or is seeking political asylum, a consular
officer shall not be notified of his arrest or given access to or information
about him except at the express request of the foreign national.
(5) A record shall be made of the time
when a foreign national was informed or notified in accordance with this
Regulation, when any request was made, when the request was complied with and
when any communication was forwarded to a consul.
(6) In this Regulation
"consul" means, in relation to a foreign national, the diplomatic or
consular representative of that person's own country either in the State or
accredited to the State on a non- residential basis, or a diplomatic or consular
representative of a third country which may formally or informally offer
consular assistance to a national of a country which has no resident
representative in the State.
---------------
Constitution of
Venezuela (1999)
Article 44: Personal liberty is inviolable, therefore:
3) Any person under
arrest has the right to communicate immediately with members of his or her
family, an attorney or any other person in whom he or she reposes trust, and
such persons in turn have the right to be informed where the detainee is being
held, to be notified immediately of the reasons for the arrest and to have a
written record inserted into the case file concerning the physical or mental
condition of the detainee…
(4) In the case of the
arrest of foreign nationals, applicable provisions of international treaties
concerning consular notification shall also be observed.
References to the VCCR in UN
Convention Against Torture compliance reports
Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, [annex,
39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984)], entered into
force June 26, 1987.
All parties to the UN Convention
Against Torture (CAT) are required under Article 19 to submit periodic reports
on the measures they have taken to give effect to the Convention's
provisions. Article 6(3) of the Convention requires that "Any person in
custody [for the crime of torture] shall be assisted in communicating immediately
with the nearest appropriate representative of the State of which he is a
national...". Country compliance reports frequently refer to
their observance of CAT Article 6(3) in the context of regulations
enforcing the provisions of Article 36 of the VCCR.
REPUBLIC OF KOREA
Republic of Korea, initial report to the
Committee Against Torture
CAT/C/32/Add.1
30 May 1996
130. In accordance with the
Constitution, the Vienna Convention on Consular Relations, which the Republic of
Korea acceded to, ratified and promulgated, has the same effect as the domestic
laws of the Republic of Korea.
131. Therefore, consular officers shall
be free to communicate with nationals of the sending State and shall have
access to them. In a case in which a national of the sending State is arrested,
imprisoned, in custody pending trial, or is detained in any other manner, the
competent authorities of the receiving State shall immediately inform the
consular post of the sending State, if the detainee so requests. Any
communication addressed to the consular post by the detainee shall also be
forwarded by the said authorities without delay. In addition, consular officers
shall have the right to visit a national of the sending State who is
imprisoned, in custody or in detention for the purpose of communicating and
conversing with him, and arranging for his legal representation.
132. Guidelines for the Ministry of
Justice of the Republic of Korea (BOP KOMI No. 01129-299), entitled
"Directives for the Investigation of Crimes Committed by Foreigners",
dated 30 April 1993, stipulate the following:
(a) When investigative agencies arrest
or detain a foreigner, they shall immediately inform him that he is entitled to
freely interview and communicate with consular or honorary consular officers of
his home State stationed in the Republic of Korea, and that at his request, the
consular officers or the honorary consular officers shall be immediately
notified of his arrest or detention;
(b) In addition, if the person arrested or detained so requests, the
investigative agencies shall send a communiqué containing the detainee's
personal data and the particulars of his case, including his commission of a
crime, the date and location of his arrest or detention, his current location,
etc. to the head of honorary head of the consular post.
GUATEMALA
third periodic report to the Committee
Against Torture
CAT/C/49/Add.2
21 June 2000
37. As regards the guarantee contained in
article 6, paragraph 3, of the Convention, the State of Guatemala is a party to
the Vienna Convention on Consular Relations article 36 of which states:
On the basis of the obligation assumed
under this article, when a foreigner is arrested by National Civil Police
officers, he is informed by them of his right to communicate with the consular
authorities of his country of origin.
38.
In order to strengthen compliance with this obligation, COPREDEH has designed a
leaflet with the information that the National Civil Police must furnish to detainees,
specifically concerning the following articles of the Guatemalan
Constitution: 7 (Notification of the grounds for arrest), 8 (Rights of
arrested persons), 13 (Grounds for ordering imprisonment) and 14 (Presumption
of innocence and public nature of court proceedings). An extract from
article 36 of the Vienna Convention on Consular Relations is also
included. The leaflet was published by COPREDEH with financial support
from the European Economic Community. In February this year COPREDEH
provided the National Civil Police with 25,000 leaflets (a copy of the leaflet
is contained in the annexes to this report).
[The right to consular communication is
also enshrined in the constitution]
8.
In order to protect the physical and mental integrity of detained persons or
prisoners, the Constitution of the Republic of Guatemala states:
(c) Prisoners shall have the right to
communicate, on request, with their relatives, their defence counsel, a
chaplain or doctor and, where appropriate, with the diplomatic or consular
representative of their country.
Failure to observe any of the rules laid down in this article shall give a
prisoner the right to claim compensation from the State for any damage caused
and the Supreme Court of Justice shall order his immediate protection.
The State shall create and foster conditions for full compliance with the
provisions of this article.
AZERBAIJAN
(initial CAT report)
CAT/C/37/Add.3
17 March 1999
158. With reference to article 6,
paragraphs 3 and 4, of the Convention, we consider it necessary to point out
that under article 93 of the Code of Criminal Procedure, the detention or
arrest of foreign nationals and stateless persons must be immediately notified
to the appropriate authorities. The Azerbaijan Republic is a party to the
Vienna Convention on Consular Relations of 24 April 1963, to which it acceded
by decision No. 224 of the Milli Mejlis (Parliament) dated 21 July 1992.
Article 36, paragraph 1 (b), of that Convention provides as follows:
ESTONIA
(initial CAT report)
CAT/C/42/Add.2
20 September 2001
62.
In 1991, Estonia acceded to the Vienna Convention on Consular Relations (RT II
1993, 23, 53), according to which consular representatives of foreign States
can freely communicate with citizens of their State. The relevant
authorities will inform immediately the consular representation on the
latter’s request if in the consular area a citizen of that State has been
detained or sent to prison or has been detained pending trial or has been taken
in custody in any other way. Any notices sent by the detained person will
be immediately forwarded to the consular establishment. Upon detention
the person will be informed of the right to contact consular representation.
Consular officials of a foreign State have the right to visit citizens of their
State who are in prison, in custody, or in a penal institution, as well as the
right to talk to them and have correspondence with them and arrange their
representation in court. A consular official has the right to visit any
citizen of his/her State in the respective consular area who is in prison, in
custody or in a penal institution, upon court decision.
LATVIA
(initial CAT report)
CAT/C/21/Add.4
30 August 2002
1. As of 14 March 1992 the 1963 Vienna
Convention on Consular Affairs [sic] is binding upon Latvia. The treaty
provides for the right of persons detained in another country to contact the
consular officer of the country of their nationality or permanent residence.
Latvia has concluded several bilateral agreements concerning consular affairs
that in general repeat the norms of the Vienna Convention, but simultaneously
specify issues of importance for both parties. One of the most important
provisions of the bilateral agreements provides for the obligation of the
receiving State to inform the competent consular officer about the apprehension
or detention of a person of the sending State’s nationality, thereby
extending the scope of the provisions of the Vienna Convention. Bilateral
agreements of this kind have been concluded with Estonia and Lithuania, as well
as with Russia and Poland.
2. Every foreigner who has been
detained, including persons detained on the State border for more than three
hours, is given the opportunity to contact the embassy of his/her country by
telephone. In cases where the person expresses the wish to meet the
representatives of the embassy, it is ensured that this request is complied
with.
3. The National Police within 24 hours
informs the Consular Department of the Latvian Ministry of Foreign Affairs on
every occasion when a national of another country has been apprehended or
detained as a suspect. According to section 2 of article 78 of the
Criminal Procedure Code, if a foreign national is detained as a suspect,
accused person or defendant, a copy of the detention order is sent to the
Ministry of Foreign Affairs. His/her right to submit a written
application to the embassy of his/her country of nationality are explained to
the foreigner after he/she is placed in the isolator. Persons whose
country of nationality does not have diplomatic or consular representation in
Latvia and refugees are informed of their right to submit written applications
to the embassy of the State authorized to represent their interests, or to the
Latvian State institutions, or to international institutions whose task is to
protect their interests.
SRI LANKA
(initial CAT report)
CAT/C/28/Add.3
21 November 1997
86. Section 6 of the CAT Act provides
that where a person who is not a citizen of Sri Lanka is arrested for the
offence of torture, he is entitled to communicate without delay with the
nearest appropriate representative of the State of which he is a national.
Back to top
Model Legislation Implementing Article 36 of
the Vienna Convention on Consular Relations
Prepared by: William J. Aceves
Associate Professor of Law
California Western School of Law
San Diego, CA 92101-3090
(619) 525-1589
Section 1
(A) Upon the arrest or detention of a foreign
national, every law enforcement officer shall advise the foreign national that
he or she has a right to communicate with a consular official from his or her
country. Such notice must be provided immediately and no later than within two
hours of arrest or detention.
(B) If the foreign national chooses to exercise that right, the law
enforcement officer, or a designated representative, shall notify the pertinent
consular officials that their foreign national has been detained and wishes to
communicate with them. If the foreign national chooses to decline this right,
the pertinent consular officials must not be notified, except as provided in
subsection (D).
(C) The law enforcement official in charge of the
custodial facility where a foreign national is located shall ensure that the
foreign national is allowed to communicate with, correspond with, and be
visited by, consular officials.
(D) Countries requiring mandatory notification under
bilateral consular agreements or other treaty obligations shall be notified
without regard to an arrested or detained foreign national's request to the
contrary. Those countries, as identified by the United States Department of
State on July 1, 1999, are as follows
[LIST OF MANDATORY NOTIFICATION
COUNTRIES]
Any countries requiring notification
that the above list does not identify because the notification requirement
became effective after July 1, 1999, shall also be required to be notified.
Section 2
When a foreign national is arrested or
detained by law enforcement officers, no waiver of rights, including consent to
search, and no statement or admission made by the foreign national in response
to interrogation shall be admissible for any purpose, unless the foreign
national had actual and meaningful communication with a consular official or
voluntarily declined the offer of consular notification, prior to making the
waiver, consent statement or admission.
Section 3
State law enforcement agencies shall
ensure that all policy and training manuals fully describe and explain the
consular notification and access requirements set forth herein.