Consular Notification: Statutory and Regulatory Provisions

Last updated: February, 2016

prepared by: Mark Warren, Human Rights Research

U.S. Federal Regulations

Military Regulations

Internal Revenue Service

State Codes

Law Enforcement Accreditation Standards

Law Enforcement Manuals

Police Department Patrol Manuals

Procedural Rules for Judges

Professional Standards for Defense Counsel

Foreign Codes

Model Legislation

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.

 
 

Federal Regulations

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
 



Internal Revenue Service


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.


 

Federal Rules of Criminal Procedure (effective December 1, 2014)

 

In September 2013, the Judicial Conference of the United States adopted proposed changes to the Federal Rules of Criminal Procedure that would require federal magistrate judges to comply with consular information and notification obligations at the initial court appearance of a non-citizen. On April 25, 2014 the Chief Justice of the U.S. Supreme Court submitted the approved amendments to Congress, which enacted them effective December 1, 2014.

https://www.law.cornell.edu/rules/frcrmp/rule_5

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:

* * * * *
(D) any right to a preliminary hearing;

(E) the defendant’s right not to make a statement, and that any statement made may be used against the defendant; and

(F) that a defendant who is not a United States citizen may request that an attorney for the government or a federal law enforcement official notify a consular officer from the defendant’s country of nationality that the defendant has been arrested — but that even without the defendant’s request, a treaty or other international agreement may require consular notification.

 

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)  that a defendant who is not a United States citizen may request that an attorney for the  government or a federal law enforcement official notify a consular officer from the defendant’s country of nationality that the defendant has been arrested — but that even without the defendant's request, a treaty or other international agreement may require consular notification.


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.


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State Codes                                 
 

To date, six U.S. states are known to have codified consular notification obligations to any extent.

Legislation recently adopted in Illinois (reproduced below) requires that a consular rights advisement be given to all detainees, both by the detaining authorities and at the initial court appearance. It also allows for a judicial continuance when so requested by a foreign defendant who was not timely advised of consular notification and communication rights. This important amendment to the state’s Code of Criminal Procedure takes effect on 1 January 2016.

Despite some inconsistencies in its language regarding the basis for mandatory notification, California's codification of VCCR rights and obligations in 1999 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. A California law adopted in 2004 requires consular rights advisement when foreigners enter the state prison system; prison authorities must also inform the consulates of ‘mandatory notification’ countries of any prisoners who have self-identified as one of their nationals. (Mandatory notification of the consulate following the detention of a national abroad is a requirement under the terms of some bilateral consular treaties entered into by the United States).

Two states (Oregon and Nevada) have adopted statutes creating police training programs on Article 36 requirements. Statutes in Oregon and North Carolina also require consular notification when foreign nationals are involuntarily detained for mental health reasons. 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.  

 

ILLINOIS CODE OF CRIMINAL PROCEDURE (SEC. 103-1 AND SEC. 109-1)

http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=099-0190

Public Act 099-0190

 HB1337 Enrolled    LRB099 07209 RLC 27304 b

AN ACT concerning criminal law.

  Be it enacted by the People of the State of Illinois, represented in the General Assembly:

    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. It does not create any new substantive State right or remedy.

        (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 the 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. This subsection (b-5) does not create any affirmative duty to investigate whether an arrestee or detainee is a foreign national.

        (2) If the foreign national requests consular notification or the notification is mandatory by law, the law enforcement official in charge of the custodial facility shall ensure the 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.

 (Source: P.A. 81-1509.)

(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 the 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. Any delay caused by the granting of the request by a defendant shall temporarily suspend for the time of the delay the period within which a person shall be tried as prescribed by subsections (a), (b), or (e) of Section 103-5 of this Code and on the day of the expiration of delay the period shall continue at the point at which it was suspended.

(Source: P.A. 97-813, eff. 7-13-12; 98-143, eff. 1-1-14; revised 12-10-14.)

------------

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.

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NEVADA REVISED STATUTES

Title 18, Chapter 228

NRS 228.135  Establishment of program to assist law enforcement personnel and prosecuting attorneys in complying with Vienna Convention on Consular Relations; regulations.

 

1.  The Attorney General may establish a program to assist law enforcement personnel and prosecuting attorneys in complying with the requirements of Article 36 of the Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261.

 

2.  The Attorney General may adopt such regulations as necessary to carry out the provisions of subsection 1.

 

[In effect as of July 1, 2013]

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NORTH CAROLINA GENERAL STATUTES (2003)

Chapter 122C: Mental Health

§ 122C-344.  Citizens of other countries. [Involuntary Commitments]

In addition to the provisions of G.S. 122C-341 through G.S. 122C-343, if a 24-hour facility determines that a client is not a citizen of the United States, the facility shall notify the Governor of this State of the name of the client, the country and place of his residence in the country and other facts in the case as can be obtained, together with a copy of pertinent medical records.  The Governor shall send the information to the nearest consular office of the committed foreign national, with the request that the consular office tell the minister resident or plenipotentiary of the country of which the client is alleged to be a citizen. (1899, c. 1, s. 16; Rev., s. 4585; C.S., s. 6211; 1963, c. 1184, s. 1; 1985, c. 589, s. 2; 1993, c. 561, s. 86(a).)

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FLORIDA (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.

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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.
 
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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

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Law Enforcement Manuals                                                      

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.

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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, Washington, D.C., 20520

 

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.

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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.  

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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]

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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 United States

--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: California Peace Officer Compliance with “Consular Notification” Laws

 

California peace officers are reminded federal and state laws impose mandatory notification duties on officers when arresting foreign nationals. When known or suspected foreign nationals are taken into custody, their rights to consular notification and access should be observed.

 

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 United States citizens as well. Peace officer compliance with consular notification laws enhances the ability of the United States State Department to receive notice and access when Americans are arrested abroad. Failure of peace officers to comply with the treaty obligations makes protection of Americans abroad more difficult and may subject officers to civil liability based on Fourteenth Amendment prisoner protections.

 

Back to top  


 

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).

 

----------

 

Washoe County (Nevada) Sheriff’s Office Policy Manual

 

Arrest or Detention of Foreign Nationals

 

422.7.1 ARREST PROCEDURE

 

Whenever a deputy physically arrests or detains an individual for criminal investigation and

the deputy reasonably believes the person to be a foreign national, the deputy shall inquire

to determine the person's citizenship. This procedure applies to detentions of more than

60 minutes. An inquiry is not required if the individual is detained less than two hours for

criminal investigation.

 

If the individual indicates that he/she is other than a U.S. citizen, the deputy shall advise

the individual that he/she has a right to have the nearest appropriate embassy or consulate

notified of the arrest/detention. If the individual requests such notification, the deputy shall

contact Dispatch as soon as practicable and request the appropriate embassy/consulate

be notified. Deputies shall provide Dispatch with the following information concerning the

individual:

 

• Country of citizenship

• Full name of individual, including paternal and maternal surname if used

• Date of birth or age

• Current residence

• Time, date, place, location of incarceration/detention and the 24-hour telephone number

of the place of detention if different from the Department itself

 

If the foreign national claims citizenship of one of the countries mandating notification,

deputies shall provide Dispatch with the information above, as soon as practicable,

regardless of whether the individual desires the embassy/consulate to be notified. This

procedure is critical because of treaty obligations with the particular countries. The list of

specific countries that the United States is obligated to notify may also be found at the U.S.

Department of State website, http://www.travel.state.gov.

 

Deputies should attempt to provide Dispatch with request for embassy/consulate

notification at the same time they provide incarceration information in order to expedite

these notifications.

 

422.7.2 DOCUMENTATION

Deputies shall document on the face page and in the narrative of the appropriate

Arrest-Investigation Report the date and time Dispatch was notified of the foreign national's

arrest/detention and his/her claimed nationality.

 

 


 


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 current procedures vary widely, but some basic principles can be gleaned from these early efforts.

Those principles include:

1) All defendants should be advised that, if they are non-citizens, they also have a right to consular notification and communication;

2) At the first court appearance of the detainee, judges should determine that notification of consular rights has taken place;

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.

-------------------

AMENDMENT TO FEDERAL RULES OF CRIMINAL PROCEDURE

https://www.law.cornell.edu/rules/frcrmp/rule_5

In September 2013, the Judicial Conference of the United States adopted proposed changes to the Federal Rules of Criminal Procedure that would require federal magistrate judges to comply with consular information and notification obligations at the initial court appearance of a non-citizen. On April 25, 2014 the Chief Justice of the U.S. Supreme Court submitted the approved amendments to Congress, which enacted them effective December 1, 2014.

 

The changes include a revision to Rules 5 and 58 that require federal judges to advise all defendants of consular notification requirements at their initial appearance. This information is provided simultaneously with the advisement of other due process safeguards, such as the defendant’s right to notice of the charges, to the appointment of counsel and to remain silent.

 

The text reads:

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:

* * * * *
(D) any right to a preliminary hearing;

(E) the defendant’s right not to make a statement, and that any statement made may be used against the defendant; and

(F) that a defendant who is not a United States citizen may request that an attorney for the government or a federal law enforcement official notify a consular officer from the defendant’s country of nationality that the defendant has been arrested — but that even without the defendant’s request, a treaty or other international agreement may require consular notification.

 

 

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)  that a defendant who is not a United States citizen may request that an attorney for the  government or a federal law enforcement official notify a consular officer from the defendant’s country of nationality that the defendant has been arrested — but that even without the defendant's request, a treaty or other international agreement may require consular notification.

 

Committee Notes on Rules-2014 Amendment

Rule 5(d)(1)(F). Article 36 of the Vienna Convention on Consular Relations provides that detained foreign nationals shall be advised that they may have the consulate of their home country notified of their arrest and detention, and bilateral agreements with numerous countries require consular notification whether or not the detained foreign national requests it. Article 36 requires consular notification advice to be given "without delay," and arresting officers are primarily responsible for providing this advice.

Providing this advice at the initial appearance is designed, not to relieve law enforcement officers of that responsibility, but to provide additional assurance that U.S. treaty obligations are fulfilled, and to create a judicial record of that action. The Committee concluded that the most effective and efficient method of conveying this information is to provide it to every defendant, without attempting to determine the defendant's citizenship.

At the time of this amendment, many questions remain unresolved by the courts concerning Article 36, including whether it creates individual rights that may be invoked in a judicial proceeding and what, if any, remedy may exist for a violation of Article 36. Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006). This amendment does not address those questions. More particularly, it does not create any such rights or remedies.

Changes Made After Publication and Comment

In response to public comments the amendment was rephrased to state that the information regarding consular notification should be provided to all defendants who are arraigned. Although it is anticipated that ordinarily only defendants who are held in custody will ask the government to notify a consular official of their arrest, it is appropriate to provide this information to all defendants at their initial appearance. The new phrasing also makes it clear that the advice should be provided to every defendant, without any attempt to determine the defendant's citizenship. A conforming change was made to the Committee Note.

--------------

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.

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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.”

 

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State Bar of Texas

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.

 

 

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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.

 

  1. Counsel who is unable to obtain consent should exercise his or her best professional judgment under the circumstances. 

 

 


Foreign Codes 

 

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.

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Mexico

National Code of Penal Procedure (approved 5 February 2014)

Proyecto de Decreto por el que se Expide el Código Nacional de Procedimientos Penales

Article 11 of Mexico’s first national code of criminal procedures guarantees the full and unrestricted exercising of rights under treaties, while Article 18 guarantees the right to be informed of those rights.  Article 151 expressly enshrines a foreign detainee's rights of consular information, communication and notification:

Artículo 151. Asistencia consular

En el caso de que el detenido sea extranjero, se le hará saber sin demora y se le garantizará su derecho a recibir asistencia consular, por lo que se permitirá comunicarse a las embajadas o consulados de los países respecto de los que sea nacional; el Juez de control deberá notificar a las propias embajadas o consulados la detención do dicha persona, registrando constancia de ello.

El Ministerio Publico y la Policía deberán informar a quien lo solicite, previa identificación, si un extranjero está detenido y, en su caso, la autoridad a cuya disposición se encuentre y el motivo.

(Approximately translated as:

In the event that the detainee is a foreign national, he will be informed without delay and will be guaranteed his right to consular assistance, for which he will be allowed to contact the embassies or consulates of the countries for which he is a national; the  presiding Judge shall notify the appropriate embassies or consulates of the detention of the said person, recording it on the record.

The Public Ministry and the police must inform anyone who requests, upon identification, if an alien is arrested and, where appropriate, the authority at whose disposal they are and why.
)

 

"Manual sobre Acceso y Notificación Consulares," Primera edición, 2013, Secretaría de Relaciones Exteriores (in Spanish)

In December of 2013, the Mexican Ministry of Foreign Affairs issued a detailed instruction manual on consular notification and access for Mexican law enforcement agencies. Its instructions emphasize that consular information, notification and communication 'without delay' must be provided prior to any interrogation of the detainee. Loosely translated, the core instructions (on page 13) read:

IV. Procedure

1. Detentions and arrests

 

The detaining authority is obliged to inform a confined, detained or arrested foreigner without delay and preferably in writing of the right to have the consulate of their country notified of their status and to contact their consular representatives without delay.  If the alien does not speak Spanish, notification of the right to inform the consulate shall occur in their language.

 

“Without delay” is to be understood as informing of the right 1) upon confinement or detention, as soon as the officer or competent authority has established the minimum elements to presume that the detainee is a foreigner, or 2) before the detainee can be questioned, makes any formal statement, or before being submitted to an authority for such purposes.

 

It is assumed that an individual is a foreigner either by their own declaration, by speaking a foreign language, by speaking with a foreign accent, by carrying any identification or passport from another country, or by any element that permits you to infer that they are not a  national.

 

When a foreigner opts for the right to have the consulate of their country notified, the officer, agent or official before whom the detainee is presented shall notify the consulate / consular post without delay, preferably in writing.

 

Such notice may be sent by fax, email or other similar means of transmission capable of delivering a written record. In addition, Mexican authorities must keep a record of its delivery.

 

Communication. Before continuing with any questioning, a confined or detained foreigner must be granted the opportunity to communicate with or be interviewed by their consulate. If communication is not achieved through no fault of the Mexican authority, the [interrogation] procedure must follow its course.

 

Secured or detained foreigners have the right to communicate with and receive visits from their consular officer. Communications of the Embassies and Consulates with the detained alien are considered privileged, so that they must not be monitored..

 

 

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Australia

Federal law requires full compliance with Article 36 obligations prior to an interrogation; several states have also adoped similar provisions that differ slightly from Article 36 by requiring that foreign detainees be given 'reasonable facilities' to contact their consulates (i.e., rather than requiring that the detaining authorities themselves notify the consulate if the detainee so requests).

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.

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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.

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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.

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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 any 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.

 

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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).

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Canada                

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, most domestic police departments appear to have no guidelines for consular advisement and notification when foreigners are detained or arrested. The comparatively few law enforcement agencies that participate in the CALEA accreditation program should have written standards in place.

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.”

 

Vancouver Police Department

This procedure makes a commendable attempt to comply with Article 36 obligations, but erroneously places the onus to notify the consulate on the detained national rather than on the detaining authority:

Regulations and Procedures Manual

1.6.10 (iii) Foreign Nationals

(Effective: 2003.01.22)

 

Procedure When Arrested

3. In accordance with the Vienna Convention on Consular Relations, when a foreign national is arrested, imprisoned or otherwise detained, the arresting member shall:

 

a. Advise the person of their right to contact their embassy or consulate by telephone or by mail; and

b. Facilitate the phone call to the embassy or consulate, if the arrested party so desires.

 

4. The Jail OIC shall post a notice near the telephone intended for use by the prisoners that shall read as follows:

 

IF YOU ARE NOT A CITIZEN OF CANADA, YOU HAVE THE RIGHT TO NOTIFY YOUR EMBASSY OR CONSULATE AND SEEK ASSISTANCE FROM THEM IN RELATION TO YOUR ARREST.

 

Correctional Services Canada

http://www.csc-scc.gc.ca/text/plcy/cdshtm/704-cd-eng.shtml

CD 704 - INTERNATIONAL TRANSFERS

PRINCIPLES

4. Foreign national offenders within the jurisdiction of the Service are entitled to all the rights, privileges and amenities afforded to all offenders. In addition, pursuant to the Vienna Convention on Consular Relations, they are entitled to contact with their consular representatives and they may have access to the international transfer program.

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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)

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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.

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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.                  

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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.
 
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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.

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