Consular Notification: Statutory and Regulatory Provisions
Updated September, 2009
prepared by: Mark Warren, Human Rights Research
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As a ratified treaty of the United States, the Vienna Convention on Consular Relations (VCCR) is part of the "supreme Law of the Land" under art. 6 of the U.S. Constitution and is thus binding on all federal, state and local authorities. Moreover, the treaty is recognized by the USA as entirely self-executing (in the sense that no enabling legislation is required to give its provisions the full force of law). Despite this exalted status, practical considerations have prompted the creation of a number of federal regulations, state statutes and local guidelines requiring compliance with the consular notification provisions of the Vienna Convention.
Bilateral consular treaties entered into by the USA typically require mandatory notification of the consulate following the national's arrest, irrespective of the detainee's wishes (unlike article 36 of the multilateral VCCR, which makes notification of the consulate obligatory only upon the informed request of the national). These separate bilateral obligations are frequently recognized in compliance provisions by listing all such "mandatory notification" countries in the instructions provided to law enforcement agencies. The distinction between the mandatory notification provisions of many bilateral treaties and the VCCR requirement of notification only at the national's request has resulted in some unnecessarily cumbersome advisement procedures. According to the U.S. Department of State, for example, arresting police should first determine a non-citizen's actual nationality, then consult a list of mandatory notification countries and only then provide one of two recommended advisements of consular rights, depending on which treaty applies to the detainee.
A multi-stage process of full identification followed by advisement is likely to result in either incomplete or delayed compliance. A simpler approach would be to advise all foreign detainees that they have the right to communicate with their consulates and to have the consulate notified of their arrest. Once the police have verified the actual nationality of a non-citizen, mandatory notification of the consulate (if required) could then be provided, with an appropriate advisement to the detainee that a bilateral treaty required that notification irrespective of the national's wishes. Simpler still would be to add a line to the Miranda advisement provided to all detained persons prior to interrogation, irrespective of their nationality, that "if you are not a U.S. citizen, you also have the right to communicate with your consulate and to have us notify the consulate of your arrest." That approach would eliminate any concerns over police questioning of detainees to ascertain their citizenship status, which might give rise to accusations of invasion of privacy or ethnic profiling.
This collection is a work in progress; it does not yet include, for example, all of the growing number of arrest guidelines and patrol manuals issued by municipal police departments that require compliance with the VCCR when arresting foreign nationals. As more information becomes available, the collection will be expanded.
The United States has adopted federal regulations that require notification of consular rights and consular access when foreign nationals are arrested by agents of the Department of Justice or the Bureau of Immigration and Customs Enforcement (formerly the INS). See 28 C.F.R. § 50.5(a); 8 C.F.R. § 236.1(e). The Department of Justice regulation reads as follows:
Notification of Consular Officers upon the arrest of foreign nationals 28 C.F.R.§ 50.5
a) This statement is designed to establish a uniform procedure for consular notification where nationals of foreign countries are arrested by officers of this Department [of Justice] on charges of criminal violations. It conforms to practice under international law and in particular implements obligations undertaken by the United States pursuant to treaties with respect to the arrest and detention of foreign nationals. Some of the treaties obligate the United States to notify the consular officer only upon the demand or request of the arrested foreign national. On the other hand, some of the treaties require notifying the consul of the arrest of a foreign national whether or not the arrested person requests such notification.
(1) In every case in which a foreign national is arrested the arresting officer shall inform the foreign national that his consul will be advised of his arrest unless he does not wish such notification to be given. If the foreign national does not wish to have the consul notified, the arresting officer shall also inform him that in the event there is a treaty in force between the United States and his country which requires such notification, his consul must be notified regardless of his wishes and, if such is the case, he will be advised of such notification by the U.S. Attorney.
2) In all cases (including those where the foreign national has stated that he does not wish his consul to be notified) the local office of the Federal Bureau of Investigation or the local Marshal's Office, as the case may be, shall inform the nearest U.S. Attorney of the arrest and of the arrested person's wishes regarding consular notification.
3) The U.S. Attorney shall then notify the appropriate consul except where he has been informed that the foreign national does not desire such notification to be made. However, if there is a treaty provision in effect which requires notification of consul, without reference to a demand or request of the arrested national, the consul shall be notified even if the arrested person has asked that he not be notified. In such case, the U.S. Attorney shall advise the foreign national that his consul has been notified and inform him that notification was necessary because of the treaty obligation.
b) The procedure described by this statement shall not apply to cases involving arrests made by the Immigration and Naturalization Service in administrative or exclusion proceedings, since that Service has heretofore established procedures for the direct notification of the appropriate consular officer upon such arrest. With respect to arrests made by the Service for violations of the criminal provisions of immigration laws, the U.S. Marshal, upon delivery of the foreign national into his custody, shall be responsible for informing the U.S. Attorney of the arrest in accordance with numbered paragraph 2 of this statement.
A condensed version of this statement also appears in the Department of
Justice Legal Handbook for Special Agents [of the FBI], Mar. 31, 1983, section
3-10: "Foreign Nationals"
BICE (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.
Military Regulations Back to top
Perhaps not surprisingly, the most explicit and detailed instructions are found in US military regulations.
http://books.usapa.belvoir.army.mil/cgi-bin/bookmgr/BOOKS/afr11013/CONTENTS
Title: Consular Protection of Foreign Nationals Subject to the Uniform Code of Military Justice
Authors: Army Publications and Printing Command
Document Number: AR 27-52
AR 27-52 * 5 November 1968 * Unclassified
Summary: This regulation prescribes the policy and procedures under which foreign consular offices are to be given notice of the apprehension, confinement, or trial by court-martial of their fellow nationals servicing the United States Armed Forces, and are to be provided the opportunity to visit, communicate with, and otherwise safeguard the interests of such foreign nationals.
Applicability: This regulation applies only within the territory of the United States.
Suggested improvements: The Army office of primary interest in this Joint publication is the
Office of The Judge Advocate General. Army users are invited to send comments and suggested improvements to The Judge Advocate General, ATTN: JAGX-M, Department of the Army, Washington, D.C. 20310.
1.1 Purpose and scope.
This regulation prescribes the policy and procedures under which foreign consular offices are to be given notice of the apprehension, confinement, or trial by court-martial of their fellow nationals servicing the United States Armed Forces, and are to be provided the opportunity to visit, communicate with, and otherwise safeguard the interests of such foreign nationals.
1.2 Explanation of terms.
For the purpose of this regulation, the following explanations apply:
a. "Consul" -The official representative of a foreign country, who is charged with consular matters for the locale in which a circumstance requiring notification occurs.
b. "Foreign national" -Any member of the Armed Forces of the United States who is a national of a foreign country and who is not also a citizen or national of the United States.
c. "Notifying officer" -The officer exercising court-martial jurisdiction over the foreign national. For the Army and Navy and the Marine Corps, the notifying officer is the officer exercising general court martial jurisdiction. For the Air Force, the notifying officer is the officer exercising special court-martial jurisdiction.
d. "Territory of the United States" -The 50 States and the District of Columbia.
1.3 Applicability.
This regulation applies only within the territory of the United States.
1.4 Notification
a. Circumstances requiring notification. Notification is required whenever a foreign national is apprehended under circumstances likely to result in confinement or trial by court-martial and states that he is a foreign national, or is ordered into arrest or confinement, or is held for trial with or without any form of restraint, or when court-martial charges against him are referred for trial.
b. By whom made. Except as otherwise provided herein, the notifications and reports required by this regulation will be made by the notifying officer. Notification shall be given only when any of the circumstances specified in a above occurs within the territory of the United States.
c. Exceptions to notification requirements.
(1) At sea. If any of the circumstances specified in a above occurs aboard a ship at sea, notification is not required while the ship is at sea. "At sea," as used here, does not include a harbor or, except on a then outbound ship, territorial waters of the United States.
(2) Number of notifications. Once notification is given, it need not be repeated at subsequent stages of the same case.
(3) Disciplinary action. This regulation does not require notification when disciplinary action under Article 15 of the Uniform Code of Military Justice or administrative action is taken against a foreign national or if he is apprehended or confined in anticipation that only such actions will be taken against him. If disposition of the foreign national's case by court-martial is thereafter contemplated, the notifying officer will at that time comply with paragraphs 4 through 6 of this regulation, as applicable.
(4) Civil authorities. This regulation does not require notification when a foreign national is charged with a crime, arrested, confined, or detained in custody by the civil authorities of the United States, or any political subdivision, possession or territory thereof, or by the authorities of any foreign government.
(5) Dispute as to foreign nationality. For the purpose of this regulation, any serviceman who claims to be a foreign national shall be so considered unless such claim is inconsistent with his military records or other pertinent evidence. Whenever charges against an serviceman are referred for trial, his military records shall be examined to ascertain his nationality even if he has not entered a claim of foreign nationality. In the event that the serviceman's claim of foreign nationality is disputed, the notifying officer shall dispatch a telegraphic report thereon, as appropriate, to--
(a) HQDA (DAJA-IA) WASH WASHINGTON, D.C. 20310 (Army). (Correction from C 1.)
(b) The Judge Advocate General, JAGN (Navy and Marine Corp);
(c) HQ USAF, AFJALB (Air Force). If it is determined that the serviceman is a foreign national, the required notification shall be given to the consul by the Judge Advocate General of the military department concerned.
d. Objection to notification by foreign national. When a circumstance requiring notification arises, the foreign national shall be advised that notification will be given to his consul unless he objects and, in case he does object, that the Judge Advocate General will determine whether an applicable treaty requires notification irrespective of the wishes of the foreign national concerned. If the foreign national objects to notification being given to his consul, the notifying officer shall send a report by telegraphic means to the appropriate Judge Advocate General as set forth in c(5), above. If an applicable treaty requires notification irrespective of the wishes of the foreign national, notification will be given to the consul by the Judge Advocate General of the military department concerned.
e. Notification procedure.
(1) When a circumstance requiring notification occurs, the notifying officer will immediately communicate by telegram directly with the consul of the foreign country concerned nearest the locale in which the circumstances requiring notification occur. Address of foreign consulates are listed in the appendix.
(2) An information copy of such communication shall, at the same time, be directed to the appropriate Judge Advocate General as set forth in c(5), above. Except that for Air Force, such communications shall be directed to HQ USAF, AFJALB and AFJAMD.
(3) When a circumstance requiring notification occurs in an Army, Navy, or Marine Corps command below the level of general court-martial convening authority, the facts shall be reported by the commanding officer or officer in charge immediately concerned to the officer normally exercising general court-martial jurisdiction over that command. The report shall include the items listed in f, below.
f. Contents of notice. The notice to the consul shall: Identify the foreign national by name, grade, service number (numerical personnel identifier), and organization; specify the foreign country of which he is a national; contain a concise statement of relevant facts relating to the cause for which he has been apprehended or ordered into arrest or confinement and held for trial, or for which he is held for trial with or without any form of restraint; and, if applicable, the nature of the offense(s) for which he is being held for trial or upon which charges against him have been referred for trial; specify the name of his military and/or civilian defense counsel, if any; and specify where the foreign national may be found. The notice shall also offer to technical consul the assistance of the notifying officer.
1.5. Consular Access Rights
a. Consular visits. Under circumstances requiring notification, or when a foreign national is confined in a military confinement facility, the consul shall, upon proper identification to the notifying officer, have the right to visit the foreign national without delay. Such visits shall be conducted in accordance with confinement facility regulations, which shall permit reasonable access to, and the opportunity of privately conversing with, the foreign national. The consul shall also be allowed, subject to confinement facility regulations, to transmit communications between the prisoner and other persons.
b. Communications between consul and foreign national. Whether or not a foreign national is confined, he shall have a right to communicate either orally, including telephonically, or in writing with the consul and to receive such communications from the consul. All such communications shall be treated as privileged and not subject to inspection or monitoring, except in those exceptional cases in which the notifying officer determines that national security considerations are involved..
c. Other consular rights. The consul shall be given full opportunity to safeguard the interests of the foreign national concerned. The consul has the right to confer with, to interview, to advise, to arrange legal representation for, to make inquiries to incidents affecting the interest of, and to otherwise assist foreign nationals, the consul or other official representative of the foreign country shall be treated with the dignity and courtesy befitting his office.
1.6 Record of trial.
A copy of the notice made pursuant to this regulation will be incorporated as part of the allied papers of the court-martial record of trial, if any.
1.7 Inquiries.
All inquiries concerning the interpretation and application of this regulation should be addressed to the appropriate Judge Advocate General as set forth in paragraph 4c(5).
A.0 Appendix A. LIST OF FOREIGN CONSULATES IN THE UNITED STATES
The IRS has developed what may well be the most workable and consistent
approach to advisement of consular rights, by requiring its agents to
immediately inform all detained foreigners of their right to consular
notification and contact, irrespective of whether some of those detainees are
later found to fall under the provisions of bilateral treaties requiring
mandatory notification of the consulate. Unlike the two-part
process recommended by the State Department (in which police must first
determine whether the VCCR or a bilateral treaty applies and then provide the
appropriate advisement), this 'tell everyone' approach is easy to administer
and minimizes delays that might otherwise arise due to uncertainty over a
non-citizen's actual nationality.
http://www.irs.gov/irm/part9/ch04s15.html#d0e27694
Internal Revenue Manual
Chapter 9 Criminal Investigation
9.4.12.9 (07-30-2004)
Arrest or Detention of Foreign Nationals
1. A foreign national is defined as any person who is not a United
States citizen.
2. Treaty obligations of the United States require Federal law
enforcement officers to notify certain foreign authorities when foreign
nationals have been arrested or detained in the United States.
3. To ensure that Americans abroad obtain the treatment to which they are
entitled, it is essential that the United States not violate any of its
obligations under these treaties.
4. When special agents arrest or otherwise detain a foreign
national, the arresting special agent must promptly inform the detainee of
his/her right to have his/her government informed of such event and that he/she
has a right to consular access. In most cases, the foreign national has the
option to decide whether to have consular officials notified. Some agreements
with certain countries require mandatory notification when their nationals are
arrested or detained. See Exhibit 9.4.12-2, Mandatory Notification Countries
and Jurisdictions. In these instances, the foreign national has no choice
regarding notification and the arresting or detaining special agent will notify
the consulate or the embassy of the situation without delay. See Exhibit
9.4.12-3, Suggested Statements to Arrested or Detained Foreign Nationals, which
provides suggested statements that may be used to advise foreign nationals of
consular rights.
5. If the detainee requests notification, the arresting or detaining
special agent must ensure that notification is immediately given to the nearest
consulate or embassy of the detainee's country. The physical addresses and
telephone/fax numbers of the foreign consular offices in the United States can
be obtained from the internet site, http:www.state.gov.
6. Foreign consular officers have the right to visit their
nationals who are in prison, custody, or detention to converse and correspond
with them and to arrange for their legal representation, unless the person
being held expressly opposes these actions. They must refrain from acting on
behalf of a foreign national if the foreign national opposes their involvement.
In addition, consular officers may not act as attorneys for their nationals.
7. Special agents should keep written records sufficient to
show compliance with the notification requirements. These records should show
all notifications to foreign consular representatives. In addition, in cases in
which notification is at the discretion of the detained foreign national, these
records should show that the foreign national was informed of the option of
consular notification, the date when the foreign national was so informed, and
whether or not the foreign national requested that consular officials be
notified. If confirmation of receipt of notification is available, it should be
saved if possible. See Exhibit 9.4.12-4, Suggested Fax Sheet for Notifying
Consular Officers of Arrests or Detentions, for appropriate document to record
compliance with the notification requirements.
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To date, only 3 U.S. states are known to have codified consular notification obligations. The Florida statute predates U.S. ratification of the VCCR and is more reflective of consular obligations under customary international law than of the more specific provisions adopted under the Vienna Convention .
Despite some inconsistencies in its language regarding the basis for
mandatory notification, California's recent codification of VCCR rights and
obligations marked an important step toward improved compliance. The provision
specifies no penalties for its breach; presumably, any available remedies would
need to be determined by the state courts.
FLORIDA STATUTE (1965)
Recognition of International Treaties Act (1965), Chapter 901.26
('Arrests') of the Florida Statute.
Key words: identification certificate; notification upon arrest.
(1) The following shall be known as the "Recognition of International Treaties Act".
(2) The Department of State may, upon application, issue identification certificates to those official representatives of sovereign nations that are on official business within the boundaries of Florida.
(3) Wherever in the state a citizen of any sovereign nation to which the United States extends diplomatic recognition shall be arrested or detained for any reason whatsoever, the official who makes the arrest or detention shall immediately notify the nearest consul or other officer of the nation concerned or, if unknown, the Embassy in Washington, D.C. of the nation concerned or, if unknown, the nearest state judicial officer who shall in turn notify either of the above. Failure to give notice shall not be a defense in any criminal proceedings and shall not be cause for the citizen's discharge from custody.
Amended in 2000 to read:
901.26 Arrest and detention of foreign nationals.--Failure to provide
consular notification under the Vienna Convention on Consular Relations or
other bilateral consular conventions shall not be a defense in any criminal
proceeding against any foreign national and shall not be cause for the foreign
national's discharge from custody.
CALIFORNIA PENAL CODE (1999)
834c. (a) (1) In accordance with federal law and the provisions of this section, every peace officer, upon arrest and booking or detention for more than two hours of a known or suspected foreign national, shall advise the foreign national that he or she has a right to communicate with an official from the consulate of his or her country, except as provided in subdivision (d). If the foreign national chooses to exercise that right, the peace officer shall notify the pertinent official in his or her agency or department of the arrest or detention and that the foreign national wants his or her consulate notified.
(2) The law enforcement official who receives the notification request pursuant to paragraph (1) shall be guided by his or her agency's procedures in conjunction with the Department of State Guidelines Regarding Foreign Nationals Arrested or Detained in the United States, and make the appropriate notifications to the consular officers at the consulate of the arrestee.
(3) The law enforcement official in charge of the custodial facility where an arrestee subject to this subdivision is located shall ensure that the arrestee is allowed to communicate with, correspond with, and be visited by, a consular officer of his or her country.
(b) The 1963 Vienna Convention on Consular Relations Treaty was signed by 140 nations, including the United States, which ratified the agreement in 1969. This treaty guarantees that individuals arrested or detained in a foreign country must be told by police "without delay" that they have a right to speak to an official from their country's consulate and if an individual chooses to exercise that right a law enforcement official is required to notify the consulate.
(c) California law enforcement agencies shall ensure that policy or procedure and training manuals incorporate language based upon provisions of the treaty that set forth requirements for handling the arrest and booking or detention for more than two hours of a foreign national pursuant to this section prior to December 31, 2000.
(d) Countries requiring mandatory notification under Article 36 of the Vienna Convention shall be notified as set forth in this section without regard to an arrested or detained foreign national's request to the contrary. Those countries, as identified by the United States Department of State on July 1, 1999, are as follows:
[LIST OF 56 MANDATORY NOTIFICATION COUNTRIES]
However, any countries requiring notification that the above list does not
identify because the notification requirement became effective after July 1,
1999, shall also be required to be notified.
CALIFORNIA PENAL CODE (2004)
Section 5028 of the Penal Code is amended to read:
5028. (a) Upon the entry of any person who is currently or was previously a foreign national into a facility operated by the Department of Corrections, the Director of Corrections shall inform the person that he or she may apply to be transferred to serve the remainder of his or her prison term in his or her current or former nation of citizenship. The director shall inform the person that he or she may contact his or her consulate and shall ensure that if notification is requested by the inmate, that the inmate's nearest consulate or embassy is notified without delay of his or her incarceration.
(b) Upon the request of a foreign consulate representing a nation that requires mandatory notification under Article 36 of the Vienna Convention on Consular Relations Treaty listed in subdivision (d) of Section 834c, the Department of Corrections shall provide the foreign consulate with a list of the names and locations of all inmates in its custody that have self-identified that nation as his or her place of birth.
(c) The Department of Corrections shall implement and maintain
procedures to process applications for the transfer of prisoners to their
current or former nations of citizenship under subdivision (a) and shall
forward all applications to the Governor or his or her designee for appropriate
action.
OREGON REVISED STATUTES (2003)
Chapter 181 — State Police; Crime Reporting and Records; Public Safety Standards and Training
181.642 Training relating to Vienna Convention and crimes motivated by prejudice or that constitute abuse. The Board on Public Safety Standards and Training shall ensure that all police officers and certified reserve officers are trained to:
(1) Investigate, identify and report crimes:
(a) Motivated by prejudice based on the perceived race, color, religion, national origin, sexual orientation, marital status, political affiliation or beliefs, membership or activity in or on behalf of a labor organization or against a labor organization, physical or mental handicap, age, economic or social status or citizenship of the victim; and
(b) That constitute abuse, as defined in ORS 419B.005, or domestic violence.
(2) Understand the requirements of the Vienna Convention on Consular Relations and identify situations in which the officers are required to inform a person of the person’s rights under the convention. [1989 c.1028 §3; 1995 c.128 §1; 1995 c.624 §3; 2003 c.109 §1]
SECTION 2. ORS 426.228 is amended to read:
426.228. (1) A peace officer may take into custody a person who the officer has probable cause to believe is dangerous to self or to any other person and is in need of immediate care, custody or treatment for mental illness. As directed by the community mental health and developmental disabilities program director, a peace officer shall remove a person taken into custody under this section to the nearest hospital or nonhospital facility approved by the Department of Human Services. The officer shall prepare a written report and deliver it to the treating physician. The report shall state:
[...]
(9)(a) When a peace officer takes a person into custody under this section, and the peace officer reasonably suspects that the person is a foreign national, the peace officer shall inform the person of the person’s right to communicate with an official from the consulate of the person’s country.
(b) A peace officer is not civilly or criminally liable for failure to
provide the information required by this subsection. Failure to provide the
information required by this subsection does not in itself constitute grounds
for the exclusion of evidence that would otherwise be admissible in a
proceeding.
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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.
The linchpin in compliance with VCCR art. 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 65-page guide
provides the most comprehensive instructions, another good example is the
manual prepared by the Georgia Department of Community Affairs. The manual was
amended in 1996 to include procedures during 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]
STATE DEPARTMENT NOTICE TO LAW ENFORCEMENT
(These periodic notices are sent to mayors and police departments in all major U.S. cities, as well as 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.
STATE DEPARTMENT MANUAL
(As part of its efforts to enhance awareness of the VCCR and to improve domestic compliance, the State Department issued a 72-page manual for law enforcement in 1998. The following excerpt 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
Released January 1998
U.S. Department of State
http://travel.state.gov/law/consular/consular_753.html
Summary of Requirements Pertaining to Foreign Nationals
When foreign nationals are arrested or detained, they must be advised of the right to have their consular officials notified. In some cases, the nearest consular officials must be notified of the arrest or detention of a foreign national, regardless of the national's wishes. Consular officials are entitled to access to their nationals in detention, and are entitled to provide consular assistance.
-When a government official becomes aware of the death of a foreign national, consular officials must be notified.
-When a guardianship or trusteeship is being considered with respect to a foreign national who is a minor or incompetent, consular officials must be notified.
-When a foreign ship or aircraft wrecks or crashes, consular officials must be notified.
These are mutual obligations that also pertain to American citizens abroad. In general, you should treat a foreign national as you would want an American citizen to be treated in a similar situation in a foreign country. This means prompt, courteous notification to the foreign national of the possibility of consular assistance, and prompt, courteous notification to the foreign national's nearest consular officials so that they can provide whatever consular services they deem appropriate.
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:
Offer, without delay, to notify the foreign national's consular officials of the arrest/detention. For a suggested statement to the foreign national, see "statements", Statement 1. Translations of the statement into selected foreign languages are in Part Four of this publication. If the foreign national asks that consular notification be given, notify the nearest consular officials of the foreign national's country without delay. For phone and fax numbers for foreign embassies and consulates in the United States, see Part Six of this publication. A suggested fax sheet for making the notification is also included.
3. If the foreign national's country is on the list of mandatory notification countries:
Notify that country's nearest consular officials, without delay, of the arrest/detention. Phone and fax numbers are in Part Six, and you may use the suggested fax sheet for making the notification.
Tell the foreign national that you are making this notification. A suggested statement to the foreign national is found at Statement 2, and translations into selected languages are in Part Four.
4. Keep a written record of the provision of notification and actions taken.
Suggested Statements to Arrested or Detained Foreign Nationals
Statement 1
When Consular Notification is at the Foreign National's Option (For Translations, See Part Four)
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:
When Consular Notification is Mandatory (For Translations, See Part Four)
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.
Suggested Fax Sheet for Notifying Consular Officers of Arrests or Detentions
Date: __________
Time:__________
To: Embassy of __________________________________,Washington, DC
or
Consulate of _______________, _________________, ______________
(Country) (City) (State)
From:
Name: _____________________________________________________
Office: _____________________________________________________
Street Address: ______________________________________________
City: ______________________________________________________
State: _____________________________________________________
ZIP Code: __________________________________________________
Telephone: (____)____________________________________________
Fax: (____)_________________________________________________
Subject: NOTIFICATION OF ARREST/DETENTION OF A NATIONAL OF YOUR COUNTRY
We arrested/detained the following foreign national, whom we understand to be a national of your country, on _____________, ______________.
Mr./Ms. ____________________________________________________
Date of birth: _______________________________________________
Place of birth: _______________________________________________
Passport number: ___________________________________________
Date of passport issuance: _____________________________________
Place of passport issuance: _____________________________________
To arrange for consular access, please call ______________________________
between the hours of ___________ and __________. Please refer to case number ______________________when you call.
Comments:
Record keeping
Law enforcement agencies should keep written records sufficient to show compliance with the above 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 a confirmation of receipt of notification is available, it should be saved if possible.
If you have questions not addressed on this site, write or call:
Office of Public Affairs and Policy Coordination for Consular Affairs
CA/P, Room 6831
U.S. Department of State
Washington, D.C. 20520
telephone 202-647-4415; fax 202-736-7559
You may also reach us by e-mail at: consnot@state.gov
For urgent telephone inquiries after normal business hours, you may call the State Department Operations Center at 202-647-1512.
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]
---------------
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.
--------------
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.
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
Procedural Rules and Guidelines for
Judges
While the obligation to inform foreign nationals of their consular rights without delay rests with the arresting authorities, judicial oversight of the process serves to ensure full and prompt compliance by local law enforcement. The development of local procedural rules for judges is still at an early stage of development and the current suggested procedures vary widely, but some basic principles can be gleaned from these early efforts.
Those principles include:
1) The nationality of defendants should be established for the record at the earliest opportunity by the presiding judge;
2) Judges should determine that notification of consular rights has taken place at the first court appearance of the detainee;
3) The formal notification of consular rights and any follow-up actions should be filed as part of the case record and conveyed to the trial court;
4) Judges should be prepared to stay the proceedings or take any other corrective measures they deem to be appropriate in order to safeguard and vindicate the consular rights of defendants and consulates;
5) Consular representatives should be afforded standing before the courts,
whenever the consulate is intervening to assist its
national.
----------------------------
From: Consular Notification and Access, U.S. Department of State
http://travel.state.gov/law/consular/consular_753.html
How quickly do I need to inform the detainee of the right to consular notification?
The VCCR requires that a foreign national be notified "without delay" of the right to consular assistance. There should be no deliberate delay, and notification should occur as soon as reasonably possible under the circumstances. Once foreign nationality is known, advising the national of the right to consular notification should follow promptly.
In the case of an arrest followed by a detention, the Department of State would ordinarily expect the foreign national to have been advised of the possibility of consular notification by the time the foreign national is booked for detention. The Department encourages judicial authorities to confirm during court appearances of foreign nationals that consular notification has occurred as required.
What is the responsibility of judicial officials and prosecutors for notification of arrests and detentions?
Because they do not hold foreign nationals 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. The Department also encourages prosecutors to make similar inquiries. Inquiries such as these will help promote compliance with the consular notification procedures and facilitate the provision of consular assistance by foreign governments to their nationals.
-----------------
TEXAS ATTORNEY GENERAL MANUAL
In January 2000, the Office of the Texas Attorney General printed and distributed a manual entitled Magistrate's Guide to Consular Notification Under the Vienna Convention. The manual provides instructions and information to Texas judicial authorities on obligations under the VCCR and outlines suggested notification procedures. Curiously, the manual suggests that the obligation to inform foreign nationals of their consular rights and to notify the consulate should rest with the arraigning magistrate-contrary to the instructions provided by the US Department of State.
From: Magistrate's Guide to Consular Notification Under the Vienna Convention
http://www.oag.state.tx.us/newspubs/publications.html
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.
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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.
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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.
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MICHIGAN SUPREME COURT MEMO
http://www.courts.michigan.gov/scao/resources/other/scaoadm/2002/2002-09.pdf
Michigan Supreme Court
State Court Administrative Office
M E M O R A N D U M
DATE: July 26, 2002
TO: Chief Judges
cc: Circuit Court Administrators, Probate Court Administrators, Probate
Registers,
District Court Administrators
FROM: John D. Ferry, Jr.
SUBJ: SCAO Administrative
Memorandum 2002-09
Consular Notification and Access
Introduction
The United States is subject to various international legal obligations requiring in certain situations affecting a foreign national in this country that the foreign national’s consulate be contacted. One of these legal obligations comes from the United States being a signatory to the Vienna Convention on Consular Relations (VCCR). Other such obligations arise from numerous bilateral agreements the United States has entered into with individual nations. The VCCR and the bilateral agreements have the status of treaties for purposes of international law and Article VI, clause 2, of the United States Constitution. As such, they are binding on federal, state, and local government officials to the extent they pertain to matters within such officials’ competence. Court-relevant consular notification requirements arise in four types of situations: arrests and detentions of foreign nationals; deaths of foreign nationals; appointments of guardians or trustees for foreign nationals; and accidents involving foreign ships or aircraft.
Arrests and Detentions of Foreign Nationals [...]
The United States Department of State, through its publication, Consular Notification and Access (hereafter, CNA), indicates that the term “competent authorities” is “understood to mean those officials, whether federal, state, or local, who are responsible for legal action affecting the foreign national and who are competent, within their legal authorities, to give the notification required.” [CNA, p.18] Hence, the “law enforcement officers who actually make the arrest or who assume responsibility for the alien’s detention ordinarily should make the notification” in cases of arrest or detention. [CNA, p.18] In these types of cases, however, the State Department does suggest a role for the judiciary:
Because they do not hold foreign national in custody, judicial officials and prosecutors are not responsible for notification. The Department of State nevertheless encourages judicial officials who preside over arraignments or other initial appearances of aliens in court to inquire at that time whether the alien has been provided with consular notification as required by the VCCR and/or any bilateral agreement providing for mandatory notification. [CNA, pp.18-19]
The State Department indicates that detention prompting consular notification can include detention in a hospital, “if the foreign national is detained pursuant to governmental authority (law enforcement, judicial, or administrative) and is not free to leave.” [CNA, p.19] Hence, it would appear that in cases of the court ordered involuntary commitment of a mentally ill foreign national to a hospital that the relevant court may be the competent authority for consular notification purposes.
Professional Standards for Defense
Counsel
Illinois Institute for Continuing Legal Education, Guide for Defending Illinois Criminal Cases, § 4.2 (2003):
“Attorneys should advise all non-citizens clients that they have the right to consular notification of
their arrest under the Vienna Convention and that such
notification request should be made part of any assertion of rights to silence and
counsel . . . . [A]ttorneys representing non-citizens
clients should advise them to invoke the Vienna Convention rights to the police
and prosecutors at the police station and to the judge at the initial court
appearance and should raise the issue during any motion to suppress
statements.”
------
State Bar of 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.
------
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.
a. Counsel who is unable to obtain consent should exercise his or her best professional judgment under the circumstances.
Australia
CRIMES ACT 1914 - SECT 23P
Right of non-Australian nationals to communicate with consular office
(1) Subject to section 23L, if a person who is under arrest or a protected suspect is not an Australian citizen, an investigating official must, as soon as practicable:
(a) inform the person that if he or she requests that the consular office
of:
(i) the country of which he or she is a citizen; or
(ii) the country to which he or she claims a special connection;
be notified that he or she is under arrest or a protected suspect (as the case
requires), that consular office will be notified accordingly; and
(b) if the person so requests—notify that consular office accordingly;
and
(c) inform the person that he or she may communicate with, or attempt to
communicate with, that consular office; and
(d) give the person reasonable facilities to do so; and
(e) forward any written communication from the person to that consular office;
and
(f) allow the person a reasonable time to, or to attempt to, communicate with
that consular office.
(2) Without limiting subsection (1), an investigating official must not start to question the person unless paragraphs (1)(c), (d) and (f) have been complied with.
--------------
New South Wales Consolidated Acts
CRIMES ACT 1900 - SECT 356O
Right of foreign national to communicate with consular official
356O Right of foreign national to communicate with consular official
(1) This section applies to a person who is detained under this Part and who is not an Australian citizen or a permanent Australian resident.
(2) Before any investigative procedure in which a person to whom this section applies is to participate starts, the custody manager for the person must inform the person orally and in writing that he or she may:
(a) communicate, or attempt to communicate, with a consular official of the
country of which the person is a citizen, and
(b) ask the consular official to attend at the place where the person is being
detained to enable the person to consult with the consular official.
(3) If the person wishes to communicate with such a consular official, the custody manager must, as soon as practicable:
(a) give the person reasonable facilities to enable the person to do so, and
(b) allow the person to do so in circumstances in which, so far as is
practicable, the communication will not be overheard.
(4) The custody manager must defer for a reasonable period any investigative procedure in which the person is to participate:
(a) to allow the person to make, or attempt to make, the communication
referred to in subsection (2), and
(b) if the person has asked any consular official so communicated with to
attend at the place where the person is being detained:
(i) to allow the consular official to arrive at that
place, and
(ii) to allow the person to consult with the consular official.
(5) If the person has asked a consular official communicated with to attend at the place where the person is being detained, the custody manager must allow the person to consult with the consular official in private and must provide reasonable facilities for that consultation.
(6) An investigative procedure is not required to be deferred under subsection (4) (b) (i) for more than 2 hours to allow a consular official that the person has communicated with to arrive at the place where the person is being detained.
(7) An investigative procedure is not required to be deferred to allow the person to consult with a consular official who does not arrive at the place where the person is being detained within 2 hours after the person communicated with the consular official.
(8) After being informed orally and in writing of his or her rights under this section, the person is to be requested to sign an acknowledgment that he or she has been so informed.
(9) This section does not apply if the custody manager did not know, and could not reasonably be expected to have known, that the person is not an Australian citizen or a permanent Australian resident.
-----------
Victoria Consolidated Acts
CRIMES ACT 1958 - SECT 464F
464F. Right of foreign national to communicate with consular office
(1) If a person in custody is not a citizen or permanent resident of Australia, the investigating official in whose custody the person then is must, before any questioning or investigation under section 464A(2) commences, inform the person in custody that he or she may communicate with or attempt to communicate with the consular office of the country of which the person is a citizen and, unless the investigating official believes on reasonable grounds that-
(a) the communication would result in the escape of an accomplice or the fabrication or destruction of evidence; or
(b) the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed-
the investigating official must defer the questioning or investigation for a time that is reasonable in the circumstances to enable the person to make, or attempt to make, the communication.
(2) Subject to sub-section (1), if a person referred to in that sub-section wishes to communicate with the consular office of the country of which he or she is a citizen, the investigating official in whose custody the person then is must afford the person reasonable facilities as soon as practicable to enable the person to do so.
(3) This section does not apply to questioning
or investigation in connection with an offence under section 49(1) of the Road
Safety Act 1986.
-------------
Queensland Police Powers and
Responsibilities Act 2000
Right of visiting foreign national to communicate with
embassy etc.
(1) This section
applies to a relevant person who is not—
(a) an Australian
citizen; or
(b) a foreign national
with a right of residence in Australia.
(2) Before a police
officer starts to question the person, the police officer must inform the
person that he or she may telephone, or attempt to telephone, the embassy or
consular office of the country of which the person is a citizen.
(3) If the person
wishes to telephone the appropriate embassy or consular office, the police
officer must—
(a) as soon as
practicable, make available to the person reasonable facilities for the
purpose; and
(b) delay the questioning
for a reasonable time to allow the person to telephone, or attempt to
telephone, the appropriate embassy or consular office.
Police Powers and Responsibilities Regulation 2000
Schedule 10
Right of visiting foreign national to communicate with
embassy etc.
(1) This section applies if a police officer reasonably suspects a relevant
person may have the right to telephone or attempt to telephone the embassy
or consular office of the country of
which the person is a citizen.
(2) For deciding whether the relevant person has the right to telephone or attempt to telephone an embassy or consular office, a police officer may ask the relevant person a question, other than a question related to the person's involvement in the 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.
-------------
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 which require changes to domestic policies or procedures are enacted through separate implementing legislation.
The rules governing apprehension, arrest, detention, questioning and other situations surrounding the custody of an individual in England and Wales are set down in the Police and Criminal Evidence Act of 1984 (PACE). The act is supplemented by the Codes of Conduct, which give practical guidance in the treatment of suspects, prisoners and defendants. Where a citizen of an independent Commonwealth country or a national of a foreign country is in police detention, that person has the right to contact his High Commission or consulate as provided for in Code C, Section 7. This is a codification of the right to consular notification as required by the VCCR.
Section 7.1 states:
A citizen of an independent Commonwealth country or a national of a foreign country (including the Republic of Ireland) may communicate at any time with his High Commission, Embassy or Consulate. He must be informed of this right as soon as practicable. He must also be informed as soon as practicable of his right, upon request to have his High Commission, Embassy or Consulate told of his whereabouts and the grounds for his detention. Such a request should be acted upon as soon as practicable.
Section 7.4 states:
Any other foreign national who is detained must be informed as soon as practicable of his right to communicate with his consul if he so wishes. He must also be informed that the police will notify his consul of the arrest if he wishes.
Code D, paragraph 7.2 provides that if a person is a citizen of a country that has a bilateral consular convention or agreement, the embassy should be informed of the detention as soon as practicable. However, this requirement is subject to Code C, paragraph 7.4, which provides that where the person is a political refugee (whether for reasons of race, nationality, political opinion or religion) or is seeking asylum, a consular official must not be informed or given information unless the detained person requests it.
Both the language and intent of these provisions are remarkably similar to US federal regulations governing arrest procedures for federal agencies. As with the Department of Justice and military regulations, the language of the procedure to be followed is explicit and mandatory. The procedure established by these regulations closely adheres to the plain language of VCCR Articles 36(1) and (2).
Canada
RCMP Operational Manual
Canada ratified the VCCR without reservations in 1974. While other core provisions of the treaty have been incorporated into domestic law via the Foreign Missions and International Organizations Act (1991), the Convention’s requirements that foreign detainees be advised of their consular rights without delay have not been incorporated. In consequence, there is no domestic legal requirement that police provide timely advisement, and Canadian courts have typically found no grounds for judicial remedies when the treaty was breached. See, e.g., R. v. Partak, [2001] 160 C.C.C. (3d) 553; Canada v. Van Bergen, 261 A.R. 387, 390 (2000); but see Omar Khadr v. Minister of Foreign Affairs, 2004 FC 1145 (recognizing the holding of the International Court of Justice in LaGrand that VCCR article 36 confers rights on individuals).
There is empirical evidence that domestic non-compliance is widespread. However, apart from a brief reference in the operational manual of the Royal Canadian Mounted Police (Canada's federal police agency), most domestic police departments appear to have no guidelines for consular advisement and notification when foreigners are detained or arrested.
RCMP Operational Manual OM-111.2F
An RCMP officer making an arrest "should immediately inform a person who is not a Canadian citizen/landed immigrant of his/her right to contact a representative of his country."
New Zealand Bill of
Rights Act (BORA) notification form
NOTICE TO PERSON IN CUSTODY
As an accused person you are entitled to communicate without delay with, and be visited by, a solicitor of your choice.
If you are an accused person on overnight arrest you are also entitled to communicate with and be visited by your family or a friend; if no family is available, a medical practitioner, minister of religion, andif you are an alien, by your diplomatic or consular representative. If you are an accused person in custody for a longer period you are also entitled to be visited by your friends and social workers.
The visits referred to in the above paragraph are subject to the necessity of the Police to prevent interference with witnesses, the suppression of evidence, or the passing of information which may assist you to escape or assist your accomplices.
The Police (unless forbidden to do so by you) will contact a nominated relative or friend for you, unless impractical and inform him of your arrest, the charges, and whether you are bailable.
However, if you are under 17 years of age, your spouse, parent or guardian will be informed irrespective of your wishes.
I have read the above information._________________________________
(Signature) (Date)
Ireland
CRIMINAL JUSTICE ACT, 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SÍOCHÁNA STATIONS)
REGULATIONS 1987 - REG 14
14 Foreign nationals. 14. (1) The member in charge shall without delay inform or cause to be informed any arrested person who is a foreign national that he may communicate with his consul and that, if he so wishes, the consul will be notified of his arrest. The member in charge shall, on request, cause the consul to be notified as soon as practicable. Any communication addressed to him shall be forwarded as soon as practicable.
(2) Consular officers shall be entitled to visit one of their nationals, or a national of another State for whom, by formal or informal arrangement, they offer consular assistance, who is an arrested person and to converse and correspond with him and to arrange for his legal representation.
(3) This Regulation is without prejudice to the application to a national of a foreign country of the provisions of a consular convention or arrangement between the State and that country.
(4) If the member in charge has reasonable grounds for believing that an arrested person who is a foreign national is a political refugee or is seeking political asylum, a consular officer shall not be notified of his arrest or given access to or information about him except at the express request of the foreign national.
(5) A record shall be made of the time when a foreign national was informed or notified in accordance with this Regulation, when any request was made, when the request was complied with and when any communication was forwarded to a consul.
(6) In this Regulation "consul" means, in relation to a foreign national, the diplomatic or consular representative of that person's own country either in the State or accredited to the State on a non- residential basis, or a diplomatic or consular representative of a third country which may formally or informally offer consular assistance to a national of a country which has no resident representative in the State.
Constitution of Venezuela (1999)
Article 44: Personal liberty is inviolable, therefore:
3) Any person under arrest has the right to communicate immediately with members of his or her family, an attorney or any other person in whom he or she reposes trust, and such persons in turn have the right to be informed where the detainee is being held, to be notified immediately of the reasons for the arrest and to have a written record inserted into the case file concerning the physical or mental condition of the detainee…
(4) In the case of the arrest of foreign nationals, applicable provisions of international treaties concerning consular notification shall also be observed.
References to the VCCR in UN Convention Against Torture compliance reports
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, [annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984)], entered into force June 26, 1987.
All parties to the UN Convention Against Torture (CAT) are required under
Article 19 to submit periodic reports on the measures they have taken to give
effect to the Convention's provisions. Article 6(3) of the Convention
requires that "Any person in custody [for the crime of torture] shall be
assisted in communicating immediately with the nearest appropriate
representative of the State of which he is a national...".
Country compliance reports frequently refer to their observance of CAT
Article 6(3) in the context of regulations enforcing the provisions of Article
36 of the VCCR.
REPUBLIC OF KOREA
Republic of Korea, initial report to the Committee Against Torture
CAT/C/32/Add.1
30 May 1996
130. In accordance with the Constitution, the Vienna Convention on Consular Relations, which the Republic of Korea acceded to, ratified and promulgated, has the same effect as the domestic laws of the Republic of Korea.
131. Therefore, consular officers shall be free to communicate with nationals of the sending State and shall have access to them. In a case in which a national of the sending State is arrested, imprisoned, in custody pending trial, or is detained in any other manner, the competent authorities of the receiving State shall immediately inform the consular post of the sending State, if the detainee so requests. Any communication addressed to the consular post by the detainee shall also be forwarded by the said authorities without delay. In addition, consular officers shall have the right to visit a national of the sending State who is imprisoned, in custody or in detention for the purpose of communicating and conversing with him, and arranging for his legal representation.
132. Guidelines for the Ministry of Justice of the Republic of Korea (BOP KOMI No. 01129-299), entitled "Directives for the Investigation of Crimes Committed by Foreigners", dated 30 April 1993, stipulate the following:
(a) When investigative agencies arrest or detain a foreigner, they shall
immediately inform him that he is entitled to freely interview and communicate
with consular or honorary consular officers of his home State stationed in the
Republic of Korea, and that at his request, the consular officers or the
honorary consular officers shall be immediately notified of his arrest or
detention;
(b) In addition, if the person arrested or detained so requests, the
investigative agencies shall send a communiqué containing the detainee's
personal data and the particulars of his case, including his commission of a
crime, the date and location of his arrest or detention, his current location,
etc. to the head of honorary head of the consular post.
GUATEMALA
third periodic report to the Committee Against Torture
CAT/C/49/Add.2
21 June 2000
37. As regards the guarantee contained in article
6, paragraph 3, of the Convention, the State of Guatemala is a party to the
Vienna Convention on Consular Relations article 36 of which states:
On the basis of the obligation assumed under this article, when a foreigner is arrested by National Civil Police officers, he is informed by them of his right to communicate with the consular authorities of his country of origin.
38. In order to strengthen compliance with this obligation, COPREDEH has designed a leaflet with the information that the National Civil Police must furnish to detainees, specifically concerning the following articles of the Guatemalan Constitution: 7 (Notification of the grounds for arrest), 8 (Rights of arrested persons), 13 (Grounds for ordering imprisonment) and 14 (Presumption of innocence and public nature of court proceedings). An extract from article 36 of the Vienna Convention on Consular Relations is also included. The leaflet was published by COPREDEH with financial support from the European Economic Community. In February this year COPREDEH provided the National Civil Police with 25,000 leaflets (a copy of the leaflet is contained in the annexes to this report).
[The right to consular communication is also enshrined in the constitution]
8. In order to protect the physical and mental integrity of detained persons or prisoners, the Constitution of the Republic of Guatemala states:
(c) Prisoners shall have the right to communicate, on request, with their relatives, their defence counsel, a chaplain or doctor and, where appropriate, with the diplomatic or consular representative of their country.
Failure to observe any of the rules laid down in this article shall give a prisoner the right to claim compensation from the State for any damage caused and the Supreme Court of Justice shall order his immediate protection.
The State
shall create and foster conditions for full compliance with the provisions of
this article.
AZERBAIJAN
(initial CAT report)
CAT/C/37/Add.3
17 March 1999
158. With reference to article 6, paragraphs 3 and 4, of the Convention, we
consider it necessary to point out that under article 93 of the Code of
Criminal Procedure, the detention or arrest of foreign nationals and stateless
persons must be immediately notified to the appropriate authorities. The
Azerbaijan Republic is a party to the Vienna Convention on Consular Relations
of 24 April 1963, to which it acceded by decision No. 224 of the Milli Mejlis (Parliament) dated
21 July 1992. Article 36, paragraph 1 (b), of that Convention provides as
follows:
ESTONIA
(initial CAT report)
CAT/C/42/Add.2
20 September 2001
62. In 1991, Estonia acceded to the
Vienna Convention on Consular Relations (RT II 1993,
23, 53), according to which consular representatives of foreign States can
freely communicate with citizens of their State. The relevant authorities
will inform immediately the consular representation on the latter’s
request if in the consular area a citizen of that State has been detained or
sent to prison or has been detained pending trial or has been taken in custody
in any other way. Any notices sent by the detained person will be
immediately forwarded to the consular establishment. Upon detention the
person will be informed of the right to contact consular representation.
Consular officials of a foreign State have the right to visit citizens of their
State who are in prison, in custody, or in a penal institution, as well as the
right to talk to them and have correspondence with them and arrange their
representation in court. A consular official has the right to visit any
citizen of his/her State in the respective consular area who is in prison, in
custody or in a penal institution, upon court decision.
LATVIA
(initial CAT report)
CAT/C/21/Add.4
30 August 2002
1. As of 14 March 1992 the 1963 Vienna Convention on Consular Affairs [sic] is binding upon Latvia. The treaty provides for the right of persons detained in another country to contact the consular officer of the country of their nationality or permanent residence. Latvia has concluded several bilateral agreements concerning consular affairs that in general repeat the norms of the Vienna Convention, but simultaneously specify issues of importance for both parties. One of the most important provisions of the bilateral agreements provides for the obligation of the receiving State to inform the competent consular officer about the apprehension or detention of a person of the sending State’s nationality, thereby extending the scope of the provisions of the Vienna Convention. Bilateral agreements of this kind have been concluded with Estonia and Lithuania, as well as with Russia and Poland.
2. Every foreigner who has been detained, including persons detained on the State border for more than three hours, is given the opportunity to contact the embassy of his/her country by telephone. In cases where the person expresses the wish to meet the representatives of the embassy, it is ensured that this request is complied with.
3. The National Police within 24 hours informs the Consular Department of
the Latvian Ministry of Foreign Affairs on every occasion when a national of
another country has been apprehended or detained as a suspect. According
to section 2 of article 78 of the Criminal Procedure Code, if a foreign
national is detained as a suspect, accused person or defendant, a copy of the
detention order is sent to the Ministry of Foreign Affairs. His/her right
to submit a written application to the embassy of his/her country of
nationality are explained to the foreigner after he/she is placed in the
isolator. Persons whose country of nationality does not have diplomatic
or consular representation in Latvia and refugees are informed of their right
to submit written applications to the embassy of the State authorized to
represent their interests, or to the Latvian State institutions, or to
international institutions whose task is to protect their interests.
SRI LANKA
(initial CAT report)
CAT/C/28/Add.3
21 November 1997
86. Section 6 of the CAT Act provides that where a person who is not a
citizen of Sri Lanka is arrested for the offence of torture, he is entitled to
communicate without delay with the nearest appropriate representative of the
State of which he is a national.
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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.