for Detained Foreign Nationals
MODEL STANDARDS FOR LAW
DRAFT FOR DISCUSSION
September 6, 2001
Updated: July 4, 2018
Prepared by: Mark Warren
Human Rights Research
tel: (613) 256-8308
Some 170 countries are parties to the 1963 Vienna Convention on Consular Relations (VCCR), which codifies the rights, privileges and functions of consular missions and their personnel under international law. Since a core consular function is to provide assistance to nationals in distress while abroad, the VCCR also outlines consular notification procedures to be followed by local authorities in special circumstances, such as the arrest or detention of foreign citizens.
Under Article 36 of the VCCR, local authorities must notify all detained, arrested or imprisoned foreigners "without delay" of their right to have their consulate informed of their detention and of their right to communicate with their consulate. At the request of the national, the authorities must then contact the consulate without delay, facilitate consular communication and grant consular access to the detainee. Consuls are empowered to arrange for their nationals' legal representation and to provide a wide range of humanitarian and other assistance, with the consent of the detainee. Local laws and regulations must give "full effect" to the rights enshrined in Article 36.(1)
Canada acceded to the VCCR in 1974; its provisions apply under international law to all local, provincial and federal authorities, including law enforcement personnel. Canadian nationals and diplomatic missions abroad are afforded these same rights under the VCCR. The integrity of this reciprocal system of rights and duties depends on full compliance with the provisions of the VCCR by law enforcement agencies in all countries, including Canada.(2)
Article 36 recognizes that foreign citizens may face unique disadvantages when confronted with prosecution and imprisonment under the legal system of another nation. Consular communication and visits may also ensure that foreigners are not subject to discriminatory or abusive treatment while in custody. In 1999, the Inter-American Court of Human Rights held that the provisions of Article 36 safeguard the legal and human rights of detained foreigners and that notification of consular rights must take place upon detention and prior to interrogation .(3)
In June of 2001, the International Court of Justice (ICJ) issued a binding
judgment on the interpretation and application of VCCR Article 36. The ICJ
determined that the treaty confers specific rights on individual foreign
nationals; a nation which fails to notify detainees of these rights must
provide review and reconsideration of all such cases resulting in prolonged
detention or severe sentences. The ICJ decision provides definitive guidance
for the application and interpretation of the treaty provision in all UN member
Human Rights Standards
The right to consular notification and assistance is also widely enshrined in international human rights standards relating to law enforcement and the treatment of all people in custody. For example, the UN Standard Minimum Rules for the Treatment of Prisoners (1957) stipulates in Rule 38(1) that "prisoners who are foreign nationals shall be allowed reasonable facilities to communicate with the diplomatic and consular representatives of the State to which they belong."
Principle 16(2) of the UN Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment (1988) stipulates that "if a detained person is a foreigner he shall also be promptly informed of his right to communicate by appropriate means with a consular post or the diplomatic mission of the state of which he is a national."
Article 2 of the UN Code of Conduct for Law Enforcement Officials (1979) states that, in the performance of their duty, "law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons." The Vienna Convention on Consular Relations is among the international instruments listed as protecting basic human rights.
Research by Amnesty International in other countries (notably the USA) strongly indicates that many police departments and individual officers at all levels are not familiar with the application of these crucially important consular obligations to arrest and detention procedures.(5)
It falls largely on individual arresting officers to ensure that the guaranteed right to prompt consular notification and access is respected. In turn, the likelihood that police officers will know, understand and properly apply these treaty obligations is heavily dependent on training and written instructions.
Codes of conduct adopted by the United Nations require all law enforcement officials to respect and apply international human rights standards in the course of their work. That obligation includes safeguarding the rights to consular information, notification and access. Given the many levels of law enforcement agencies which coexist in Canada, compliance with Article 36 would be best achieved through the application of a uniform and comprehensive procedure. The following Proposed Model Standards for Law Enforcement on the consular rights of detained foreign nationals are therefore submitted for review and comment.
ARRESTS OF FOREIGN NATIONALS
1.Citizens of other nations who reside in or are visiting Canada are subject to Canadian law and, except as indicated below, foreign nationals who are arrested will be treated in the same manner as Canadian citizens.
(1).A foreign national who is arrested or detained (taken into custody) will be informed that he or she has the right under a treaty to which Canada is a party, 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 or detention. The advisement should include explanatory language, such as:
"As a foreign citizen who is being arrested or detained, you are entitled to have us notify your country's consular representatives here in Canada. A consular official from your country may be able to help you obtain legal counsel, may assist you in contacting 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 representatives are notified, they may call or visit you. Do you want us to notify your country's consular officials?"
(2). A notation should be made in the case file of the fact that the detainee was advised of his or her rights under the Vienna Convention on Consular Relations and whether or not the detainee requested that the embassy/consulate be contacted.
(3). If the foreign national asks that their embassy or consulate be notified, it is the detaining authority's responsibility to contact the consulate or embassy without delay. Unless the detainee is a national from the countries listed in section 3 below, do not notify the embassy/consulate unless the detainee requests they be notified. The notification should be made by direct telephone contact with a consular representative. If no duty officer is available at the consulate or embassy to take the call, notification should be made by facsimile message followed by telephone contact as soon as possible.
2.An updated listing of consulates and embassies in Canada can be found at:
(Click on: "Consular Posts")(6)
3. Under bilateral consular agreements to which Canada is a party, if a citizen of the following countries is taken into custody, the supervisor or his or her designee will notify the nearest consulate or the embassy of the detention without delay in all cases.
(1).The detained foreign national 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. A supervisor should contact the [Department of Citizenship and Immigration] at [TEL>] for additional guidance if the detainee indicates a fear of persecution or mistreatment by his or her government or also requests asylum. In cases of mandatory notification of the consulate, the detainee should be advised of their consular rights as follows:
"Because of your nationality, we are required to notify your country's consular representatives here in Canada 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, to contact your family and visit you in detention, among other things. We will be notifying your country's consular officials as soon as possible."(7)
[LIST OF MANDATORY NOTIFICATION COUNTRIES]
4. Diplomatic and consular officers have the right to consult with their citizens who are detained by federal, provincial or local authorities. 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, with the proviso that local regulations must give "full effect" to the rights enshrined in Article 36 of the VCCR.
(3). Whenever possible a senior officer or prosecuting attorney should brief the diplomatic or consular officer on the fact and circumstances of an arrest and the legal process which will be followed in the case.
5. If the foreign national who is taken into custody is in possession of a passport or visa, the arresting officer shall make a photostatic copy of the documents and attach them to the arrest/booking report. A copy should also be made of any other identity or travel documents in the possession of the detainee.
6. 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.
7. The officer who contacts an embassy or consulate on behalf of a detained 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.
8. If the detained foreign national is a juvenile who is not accompanied by a parent or legal guardian, the [Department of Foreign Affairs ?] [CONTACT INFO] will be notified at the same time as the local juvenile authorities. It is the responsibility of the [Department of Foreign Affairs ?] to contact the embassy of the detained juvenile's nation, irrespective of the detainees wishes.
9. If the foreign national is unable to communicate in English, a supervisor will be contacted and every effort made to obtain a translator. Notifications of legal and consular rights must be translated before a questioning can begin. 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.
10 . Any questions regarding the proper application of these procedures
should be addressed to: [FULL CONTACT INFO-LEGAL AFFAIRS BUREAU?] [AFTER HOURS
Relevant Provisions of the Vienna Convention on Consular Relations
Article 36: Communication and Contact With Nationals of the Sending State
1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;
(c ) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.
2. The rights referred to in paragraph 1 of this Article shall be exercised in 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.
Article 5: Consular Functions
Consular functions consist in:
(a) protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law;
(e) helping and assisting nationals, both individuals and bodies corporate, of the sending State;
(g) safeguarding the interests of nationals, both individuals and bodies corporate, of the sending State in cases of succession 'mortis causa' in the territory of the receiving State, in accordance with the laws and regulations of the receiving State;
(h) safeguarding, within the limits imposed by the laws and regulations of the receiving State, the interests of minors and other persons lacking full capacity who are nationals of the sending State, particularly where any guardianship or trusteeship is required with respect to such persons;
(i) subject to the practices and procedures obtaining in the receiving State, representing or arranging appropriate representation for nationals of the sending State before the tribunals and other authorities of the receiving State, for the purpose of obtaining, in accordance with the laws and regulations of the receiving State, provisional measures for the preservation of the rights and interests of these nationals, where, because of absence or any other reason, such nationals are unable at the proper time to assume the defence of their rights and interests;
(j) transmitting judicial and extra-judicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending State in accordance with international agreements in force or, in the absence of such international agreements, in any other manner compatible with the laws and regulations of the receiving State;
Article 37: Information in Cases of Deaths, Guardianship or Trusteeship
If the relevant information is available to the competent authorities of the receiving State, such authorities shall have the duty:
(a) in the case of the death of a national of the sending State, to inform without delay the consular post in whose district the death occurred;
(b) to inform the competent consular post without delay of any case where
the appointment of a guardian or trustee appears to be in the interests of a
minor or other person lacking full capacity who is a national of the sending
State. The giving of this information shall, however, be without prejudice to
the operation of the laws and regulations of the receiving State concerning
1 . The right to consular information notification and access is widely regarded as a requirement under customary international law and should thus be afforded to all foreign detainees, including citizens of countries which are not parties to the VCCR.
2. The full text of the Convention is reproduced in Schedule II of the Foreign Missions and International Organizations Act, 1991, c. 41, available on the Canadian Department of Justice website at: http://laws-lois.justice.gc.ca/eng/acts/F-29.4/page-5.html
3. The Inter-American Court is the judicial arm of the Organization of American States responsible for the interpretation and enforcement of hemispheric human rights standards. The Court's full opinion is available at:www.corteidh.or.cr/docs/opiniones/seriea_16_ing.pdf
5. For example, see 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, at https://www.amnesty.org/en/documents/amr51/106/2001/en/
6. Many consular missions to Canada also maintain Internet sites which may provide additional contact information. See http://w05.international.gc.ca/protocol-protocole//Consular-Consulats.aspx
7. The U.S. Department of State web site offers translations of suggested consular rights warnings for both categories of detainees in most major languages, at: https://travel.state.gov/content/travel/en/consularnotification.html