Staying in Touch: Article 36 of the Vienna Convention

As noted in the Afo-odjebiti case, the defendant raised the Article 36-access to consular officials claim based on the Vienna Convention to which the U.S. is a signatory.

There's an excellent article on Vienna cases in the Wisconsin Law Journal. The writer states that failure to comply with Article 36 is no longer without consequences when police agencies arrest a foreign national. The undecided issue is what remedies are provided.

In Sanchez-Llamas v. Oregon, Nos. 04-10566 & 05-51 (June 28, 2006) the United States Supreme Court held that application of the exclusionary rule is not an appropriate remedy for Article 36 violations. However, in Jogi v. Voges, No. 01-1657 (7th Cir. 2005) it was found that Article 36 conferred a private right of action for money damages to a foreign national defendant who'd not been informed of his rights under the Convention.

The takehome for all Iowa law enforcement officers and the agencies is clear. When there is the slightest doubt as to whether a person being arrested is a U.S. citizen, common sense should tell you that the arrestee should be afforded the knowledge necessary to make an informed decision to either contact consular authorities or to knowingly and intelligently waive that right on the record, just as we do with the other rights articulated in Miranda v. Arizona.

Article 36 of the Vienna Convention states the following:

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."

The Convention is accompanied by an Optional Protocol Concerning the Compulsory Settlement of Disputes, to which these three states are also parties. Article I of the Optional Protocol provides: "Disputes arising out of the interpretation or application of the [Vienna] Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol."