Consular Notification and Assistance: 

A Basic Resource Guide for Consuls

December, 2001

 

prepared by: Mark Warren,

Human Rights Research

Tel: (613) 256-8308

E-mail

The Role of the Consul in Criminal Cases

Individual and Consular Rights Under the VCCR

Forms of Consular Assistance in Death Penalty Cases

Impact on Consular Programs

Consular Intervention in Clemency Campaigns

 

The Role of the Consul in Criminal Cases

Assisting its nationals in distress is one of the defining aspects of the consular service of every nation. Few nationals require that assistance more urgently than those who are arrested and face prosecution in a foreign country. Arrested foreigners are truly "strangers in a strange land", confronted by an unfamiliar legal system, far from home and at the mercy of the local authorities.

International law has long recognized that consuls have the right to visit, communicate with and assist their nationals who are jailed or imprisoned abroad. Indeed, the concept that all states are entitled to protect the interests of their nationals abroad is a basic principle of international consular law and diplomatic practice.

While consular assistance for detained nationals can take many forms, each intervention serves three basic purposes. The first is humanitarian: consuls provide detainees with access to the outside world (e.g. communicating with family and friends) and ensure that they have the basic necessities of life (e.g. in some countries, prisons do not provide adequate food or medicine).

The second purpose is protective: consular visits help to ensure that foreign nationals are not mistreated in custody. In many countries, unfortunately, timely consular assistance is all that stands between foreign prisoners and ill-treatment, torture, or even death in custody.

The final purpose is legal assistance: consuls acquaint their nationals with the basic procedures under the local legal system, provide them with lists of local lawyers to defend them and take other appropriate steps to ensure that their nationals receive fair and equal treatment under the laws of the arresting state.

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Article 36 of the Vienna Convention on Consular Relations (VCCR) confers  specific  rights on all foreign detainees and prisoners:

To be informed without delay by the arresting authority of the right to consular communication

To choose whether or not to have the consulate contacted

To have the consulate contacted promptly by the arresting authority

To communicate freely with the consulate

To accept or decline any offered consular assistance
 

Article 36 confers rights on consulates:

To communicate with and have access to their detained nationals

To be promptly informed of the detention, at the request of the national

To visit and correspond with the detainee at all stages of the case

To arrange for the detainee's legal representation

To provide other forms of humanitarian, protective or legal assistance, with the permission of the detainee
 

Combined rights under Article 36

"The rights referred to in paragraph 1 of this Article shall be exercisedin conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended." VCCR Article 36(2)
 

Common Misconceptions About Article 36

The treaty is not complied with if the authorities contact the consulate directly, without obtaining permission from the detainee.

Article 36 does not require that the consulate be notified, unless the detainee first requests consular notification.

Mandatory notification of the consulate is required under Article 37 of the VCCR in all cases involving the death of a foreign national, or where "the appointment of a guardian or trustee appears to be in the interests of a minor or other persons lacking full capacity." For example, the consulate must be notified whenever an unaccompanied juvenile national is detained or arrested.

The VCCR does not prevent foreign nationals from receiving a death sentence. A foreigner is subject to the same laws and punishments as any other person.

The VCCR does confer specific rights on foreign nationals who are detained, arrested or imprisoned. It is the violation of those rights and the effect that the treaty violation may have on the trial and its outcome which is the main subject of the legal appeals in the US courts.

Consular rights apply regardless of the immigration status or the length of time that a foreign national has resided in the arresting State.

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In a US death penalty case, consular  assistance can include:

-visiting and corresponding with the detainee on an ongoing basis;

- monitoring the treatment of the detainee in custody and protesting ill-treatment or lack of access;

- contacting friends and family in the home country;

- monitoring the performance of court-appointed attorneys;

- ensuring that the detainee and the defense attorney are in close contact;

- resolving problems that may arise between the lawyer and the national;

- interceding with prosecutors to avoid excessive punishment;

- attending court hearings;

- if necessary, arranging for the hiring of competent counsel for the accused;

- funding expert witnesses and investigators, where the courts deny adequate defense funding;

- notarizing and conveying documents from the home country (e.g. medical, educational, military records);

- funding or assisting mitigation investigations in the home country;

- bringing mitigation witnesses to testify;

- providing an affidavit to the defense attorney regarding consular protection services provided by the consulate to its detained nationals;

- testifying at court hearings into the treaty violation;

- retaining an attorney to represent the consular interest;

- submitting amicus briefs or motions based on any violations of international law;

- participating directly or indirectly in appellate review;

- petitioning for clemency;

- hosting press conferences or assisting in publicity;

- any other assistance necessary to ensure that the national receives fair, equal and humane treatment, both before trial and after sentencing.

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Sources for Information and Assistance

Human Rights Research acts as a clearinghouse of information and contacts on Article 36 issues. Among other services, it offers a free electronic newsletter on recent developments, access to an extensive electronic library, contacts with attorneys, law professors and NGOs with experience in this field. Please contact me for more details.

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The Impact on Consular Programs

Naturally, your resources are not infinite-and consulate perform many functions other than visiting and assisting detained nationals. But I would encourage you to consider ways to enhance your own consular protection programs, particularly in cases that could result in a death sentence or a life sentence without parole.

You might begin a review of your local policies and procedures by asking and answering some basic questions, such as:

1) What basic advice do you provide to detained nationals who contact you for assistance, either by phone or in person? Are other mission staff aware of the standard advice you provide?

2) Are you sufficiently familiar with the varying legal procedures (such as legal aid services) in each state within your district?

3) What procedures are in place to respond to after-hours requests or when the duty officer is unavailable?

4) If your consulate maintains an Internet site, does it include basic information about the rights of detainees and contact information?

5) Are you confident that local law enforcement agencies are aware of their consular obligations and know how to reach you? Have you developed an ongoing relationship with local law enforcement, prosecutors and lawyers' associations?

6) How would you respond to a request for assistance from a defense attorney? For example, could you provide them with a standard affidavit indicating the forms of assistance that you routinely provide to detained nationals, for use in court?

7) Are there legal issues relating to consular assistance on which you are unclear? For instance, if both defendants in a case are nationals, how would you render assistance to their respective (but competing) attorneys? If a detained national provides you with pertinent information about the crime circumstances, what are your legal obligations and privileges in disclosing that information?

8) Lastly, are you confident that your limited resources are directed to provide the most comprehensive possible assistance, relative to the circumstances of each case?

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The Importance of Consular Intervention in  Clemency Campaigns

Although executive clemency is relatively rare, consular support for a clemency campaign on behalf of a foreign national is still extremely valuable and significant. These interventions can:

-- Provide crucial moral support for the prisoner, their family and the defense attorneys

-- Emphasize the high importance your government places on protecting consular rights

-- Raise public awareness and media attention about VCCR violations in death penalty cases

-- Influence legislators, chiefs of police, judges and other decision-makers

-- Strengthen the efforts of other organizations which are also campaigning for clemency.

Forms of Consular Assistance

Depending on the case circumstances, consular involvement in a clemency campaign may include:

- Writing letters to the authorities, urging serious consideration of the clemency petition

- Providing assistance with publicity and press conferences, where appropriate

- Participating in events in support of clemency organized by other organizations

- Requesting support from influential individuals and community groups

- Soliciting support from other foreign governments, international leaders, non-governmental organizations, and inter- governmental organizations

- Testifying at clemency hearings

- Meeting with the Governor or other state officials to request a reprieve and/or commutation

- Providing support and assistance to the prisoner's family

- Visiting regularly with the prisoner and assisting with final requests

- Witnessing the execution

- Assisting with funeral arrangements
 

Preparing for a Clemency Campaign

While it is always possible that the courts may intervene by granting a last-minute stay of execution or by reversing the death sentence on appeal, effective clemency campaigning requires careful planning and preparation in advance.

>>Stay in close contact with the defense attorneys and begin discussing a possible clemency petition during the later stages of appeal.

>>Familiarize yourself with the local clemency procedures as well as the possible grounds for clemency and consider the roles that the consulate might play.

>>Discuss the options of publicity for the clemency petition. In many cases, a media strategy is an essential component of an effective clemency campaign. Not all cases, however, are suitable for a publicity campaign.

>>Develop a plan for consular involvement, including clear goals, strategies and resources.

>>Recognize that community groups and non-governmental organizations will also be involved in the campaign. Decide on the appropriate level of cooperation between the consulate and these groups.

>>Make arrangements for other staff to take over some of your regular functions during-and immediately after-a major clemency campaign.

>>Prepare yourself for the emotional impact of being in close contact with the prisoner, the family and the attorneys during a very stressful time.

>>Always remember that these efforts are never wasted, regardless of the outcome. Setting achievable goals beyond the commutation of the individual death sentence is an important part of clemency campaigning. Measure the results based on the other goals which you set in your campaign strategy: publicity results, for example, or the assistance obtained from other governments or community leaders.

>>Evaluate the results of the campaign and learn from the experience. What worked well, and what could be done better next time?
 

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