Consular Notification and Assistance:
A Basic Resource Guide for Consuls
prepared by: Mark Warren,
Human Rights Research
Tel: (613) 256-8308
The Role of the Consul in Criminal Cases
Individual and Consular Rights Under the VCCR
Forms of Consular Assistance in Death Penalty Cases
Sources for Information and Assistance
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.
The Mexican Capital Legal Assistance Program is an initiative funded by the Mexican Foreign Ministry to provide various forms of support to attorneys representing Mexican nationals facing the death penalty in the USA. Its services include a team of attorneys experienced in raising Vienna Convention and other international law claims, model briefs and motions, amicus briefs and assistance in working with local Mexican consular officials. For more information, contact the Program Director, Sandra L. Babcock, at firstname.lastname@example.org, 612/871-5080, Fax. 612/872-4967
Assistance for detained foreign nationals may also be available from other organizations, including cultural, religious and special interest groups. For a detailed list of these groups in the USA by nationality, see: The Vienna Convention, Consular Access and Other Assistance Available to Foreign Nationals: A Guide for Criminal and Immigration Lawyers, by Lara A. Ballard, Columbia Human Rights Law Review (1998). Also available on-line at: www.gacdl.org.
In some cases, jail or prison authorities have refused to allow consular access to prisoners or communications between the consulate and the detainee. The State Department's Bureau of Consular Affairs will undertake to remedy consular access problems, at the request of the affected diplomatic post. To register a complaint regarding consular notification or access, the consulate should contact the Office of Public Affairs, Outreach Liaison, (202) 647-2606.
[N.B. The US Government's position is that the treaty confers no judicially-enforceable rights on individual nationals and that no judicial remedies are available for its violation-so the consulate should not discuss the case circumstances or legal strategies when registering a complaint.]
- data on death-sentenced foreign nationals in the USA and other background material:
- US Department of State manual for law enforcement on Article 36, covering common questions and answers, legal framework, notification forms and procedures:
- The Office of the Texas Attorney General has 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 their obligations under the VCCR and outlines suggested notification procedures. However, the manual requires only that local magistrates ensure that notification is provided to foreign nationals at the time of their arraignment in court, rather than at the time of their detention (as required by the VCCR).
- Material from the International Court of Justice on the LaGrand case:
-A survey of all cases in which US courts have addressed language difficulties as grounds for failing to understand Miranda rights (available as a download file in Adobe Acrobat format)
- Amnesty International reports on death-sentenced foreign nationals include:
United States of America: A Time for Action__ Protecting the consular rights of foreign nationals facing the death penalty AI Index: AMR 51/106/2001
Saudi Arabia: Execution of Nigerian Men and Women AI Index MDE 23/49/00
United States of America: Worlds Apart. Violations of the Rights of Foreign Nationals onDeath Row Cases of Europeans AI Index AMR 51/101/00
The Execution of Angel Breard: Apologies Are Not Enough AI Index AMR 51/27/98
Angel Francisco Breard: Facing Death in a Foreign Land AI Index AMR 51/14/98
Adding Insult to Injury: the case of Joseph Stanley Faulder AI Index AMR 51/86/98
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Consular Assistance in Death Penalty Cases: Trends, Opportunities and Challenges
When the issue of consular rights violations first surfaced in US death penalty case 10 years ago, virtually no one in the USA had ever heard of the Vienna Convention on Consular Relations, aside from the consular community.
What a difference a decade has made. Lawyers, academics, the media, police departments and non-governmental organizations here and abroad are increasingly aware of the significance of these rights. Much of that new awareness is due to the efforts of consulates across the country. That education process is essential-and constantly increasing.
In the aftermath of September the 11th, it's more important than ever before that the consular rights of detained foreign citizens are understood and respected by the police-and that consulates work closely with defense attorneys to support those rights.
As you may have noticed from recent media reporting, more than 1,000 foreigners were detained indefinitely following the September 11thattacks. At least seven foreign governments have raised strong protests with the State Department over the slow processing of the cases and the almost universal failure to provide prompt consular notification and access. In one case, a Pakistani national died in custody-and the consulate was unaware of the detention until reporters called asking for a comment on the death!
So, despite all of our efforts, this problem persists: violations of Article 36 obligations happen every day in the USA, and consulates thus remain unaware that their nationals are facing charges which could carry the death penalty until weeks, months or even years after the arrest. Much work remains to be done-but we can also point to many accomplishments.
While the growing awareness of consular rights is positive and encouraging, it will also impact on the work that you do.
>>Police departments will be notifying you more frequently, as compliance with the treaty improves.
>>Attorneys will be calling to seek your assistance, as awareness of the legal issues grows.
>>Reporters will call about high-profile cases involving foreign defendants.
Developments under International Law-Interventions by Foreign Governments
-The Inter-American Court of Human Rights held that the right of detained foreigners to consular information and contact protects the fundamental human right to a fair trial. Notification of consular rights must take place immediately upon arrest, and before any interrogation. The execution of a foreign national who was not promptly notified of their consular rights would be illegal under international law, requiring remedies and reparations.
-In June, the International Court of Justice issued a binding judgement against the United States for failing to respect the consular rights of two German nationals who were executed in Arizona. The Court held that the Vienna Convention confers rights on individual nationals, that domestic legal procedures must give full effect to those rights and that the USA must provide the means for review and reconsideration of sentences in similar cases.
-The United Nations General Assembly adopted a resolution on the human rights of migrant workers, requiring full compliance with the consular notification rights enshrined in article 36 of the Vienna Convention on Consular Relations. The only opposing vote came from the United States.
-The Organization of American States has endorsed resolutions requiring all member States to respect the human rights of all migrant workers and their families, including full compliance with Article 36.
-In consecutive sessions, the UN Human Rights Commission adopted resolutions requiring full respect for the consular rights of foreign nationals as an essential safeguard for the application of the death penalty worldwide.
-The European Union routinely intervenes to seek clemency in cases of foreign nationals facing execution, where consular rights were not respected. Compliance with Article 36 is seen by the EU as a minimum requirement for all nations which still retain the death penalty.
- The Inter-American Commission on Human Rights has on several occasions issued precautionary measures in response to the imminent executions of foreign nationals in the United States who were not notified of their consular rights. The Commission deplored the execution of Mexican national Miguel Flores, stating that the United States "as a Member State of the Organization of American States, is subject to the Commission's jurisdiction to receive and investigate human rights complaints lodged against it.
The impact of consular interventions in the USA
- California became the first US state to pass a law requiring that foreign nationals are informed of their right to consular contact within two hours of arrest. The law also requires that police training and policy manuals must include instructions on respecting consular treaty obligations. Publicity surrounding the execution of a Thai national and the interventions by consular and diplomatic officials directly contributed to the introduction of the new law.
-Following meetings with consular officials, police departments in Chicago
and several other US cities upgraded their notification procedures for
arrested foreigners. Signs in several languages are now being posted in
Chicago police stations, advising arrested foreigners of their consular
-The US Department of State has expanded its training and information procedures for US law enforcement in the area of consular rights. Some 60,000 manuals and 400,000 information cards have been distributed to US law enforcement personnel nation wide.
-The State Department has recently expanded its Consular Affairs program and is working closely with state Attorneys-General to improve compliance with the treaty.
-In June, the Oklahoma pardons board recommended clemency in the case of Mexican national Gerardo Valdez, the first time that any clemency authority has recognized that a violation of consular rights in a death penalty case requires a remedy.
- The cases of Mexican and Canadian nationals executed in Texas prompted widespread national media attention and court challenges to state death penalty procedures. 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 their obligations under the VCCR and outlines suggested notification procedures. It represents a significant step to enhance compliance with consular obligations at state and local levels.
-Earlier this year, a bill was introduced in the Texas Legislature which would require local and state police to comply fully with their obligations under Article 36. Although the bill did not advance out of committee, it will almost certainly be reintroduced in the next legislative session.
-Last year, the Resolutions Committee to the Convention of the Texas Democratic Party approved a declaration calling for a moratorium on all executions, until new policies were implemented that would prevent the execution of juvenile offenders, mentally disabled persons and foreign nationals whose consular rights were violated.
- Several city councils (including Austin, Texas) have passed resolutions endorsing full compliance with consular obligations.
- Dozens of law review articles have appeared discussing various aspects of Article 36 and the decisions of the international courts-all published within the last decade.
- Every major media organization in the Western world has covered one or more of these cases in the USA or other countries. Editorials calling for full compliance with the treaty have appeared in the NY Times, Washington Post, Chicago Tribune, Detroit Free Press, LA Times, Dallas Morning News and many other newspapers.
- Several foreign consular services in the United States have recently upgraded and expanded their consular assistance programs, or are improving the efficiency of those programs within their existing resource constraints. Colombia and Canada are just two examples.
-Some foreign ministries have produced special publications for the benefit of their citizens travelling abroad. Some of these publications refer specifically to Article 36, or advise citizens of their consular rights in the event of an arrest. For example, a booklet distribute by the Canadian Department of Foreign Affairs lists the range of consular services that detained Canadians may request and advises them not to make "any special arrangements with the police or prosecutors without the advice and guidance of your lawyer"
- In 1996 the Georgia Department of Community Affairs issued model consular notification guidelines for use by state and local police who might detain foreign visitors during the Atlanta Olympics
- A trial court in Delaware suppressed the confession of a Salvadorean national, because the arresting police failed to notify him of his consular rights.
- A court in New York City has just ruled that a German national may
sue the police department for violating his Article 36 rights. Evidence
produced at an earlier lawsuit had revealed that the NYPD had failed to
comply with Article 36-and their own patrol manual-in more than 99% of
cases in which foreigners were arrested.
-The Oklahoma Court of Criminal Appeals granted a last-minute stay of execution to Mexican national Gerardo Valdez Maltos, in order to consider the "complex issues of international law" raised by the LaGrand decision of the International Court of Justice.
- Courts in Colorado and New Jersey have ordered local police departments to comply with Article 36 obligations, following consular interventions by Mexico and Equador.
-Amnesty International has issued a series of reports on consular rights violations in US death penalty cases, has lobbied at the UN Human Rights Commission, the UN General Assembly and the Council of Europe for resolutions linking Article 36 to minimum human rights safeguards.
-Human Rights Watch, the American Civil Liberties Union, the American Bar Association and the National Association of Criminal Defense Lawyers have issued press releases prior to the executions of foreign nationals, calling for commutation.
-A number of these organizations-and several others-have intervened by signing on to amicus curiae briefs to support legal appeals based on this issue.
- The Council of Foreign Relations, one of the most influential think tanks in Washington has pointed out the negative consequences for US foreign policy if the Vienna Convention is not respected.
-The Human Rights Committee of the International Law Society-which includes some of the leading US professors of international law-has drafted or signed joint appeal letters calling for clemency.
-The Vatican has intervened in several cases of foreign nationals, as have many other religious and cultural organizations within the USA and abroad.
-In total, we can call on some 40 non-governmental organizations around the world for various forms of assistance when this issue arises.
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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 these recent developments in terms of your own consular protection programs.
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 Mexicans 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'
6) How would you respond to a request for assistance from a defence attorney? For example, could you provide them with a standard affidavit indicating the forms of assistance that you routinely provide to detained Canadians, 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 Mexicans, how would you render assistance to their respective (but competing) attorneys? If a detained Mexican 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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