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Vienna Convention on Consular Relations
Dear Bircan,
You might want to mention the issue of the Vienna
Convention in the Light Millennium.
See paragraph 2, which indicates that Germany has sued the US in the
International Court of Justice. It is even possible, although not likely,
that the decision of the International Court could help Fugen's case.
The Turkish government could have done what Germany did, but the only
thing they have ever done on this issue is write a letter!
Nancy S.Erickson
Vienna Convention on Consular Relations:
Arizona executed German citizens Karl and Walter LaGrand in 1999 for
the 1982 murder of a bank manager during a bungled robbery attempt.
The 2 brothers were executed less than 2 weeks apart. Germany had tried
unsuccessfully to stop the executions, telling American authorities
that the LaGrands were not advised of their right to consular assistance
soon
after their arrest, a right guaranteed under the Vienna Convention on
Consular Relations.
In an effort to get the United States to comply with the international
treaty, Germany sued the U.S. in the International Court of Justice
(the World Court in The Hague, The Netherlands). Oral arguments were
heard last November, and the court is expected to reach a decision before
next summer, said Laurence Blairon, an information officer with the
Court.
Under Article 36 of the Vienna Convention on Consular Relations, a treaty
signed by more than 160 countries and ratified by the U.S. in 1969,
law enforcement authorities must inform arrested or detained foreign
nationals "without delay" of their right to consular assistance.
The Vienna treaty is meant to ensure that nationals get proper legal
assistance when detained abroad. That includes adequate legal representation
and interpreters, contact with family members, and access to consular
officials who can explain the differences between respective legal systems.
Germany, which opposes the death penalty, maintains that Arizona prosecutors
violated the treaty because they knew the LaGrands were foreign nationals
and did not inform German authorities of the arrests until nearly a
decade later. Germany is now asking the U.S. for assurances, reparations
and a guarantee it will not repeat unlawful acts in future cases involving
German nationals. Germany is also asking the court to declare that the
U.S. violated the treaty by applying domestic rules of law, and that
the criminal liability of Karl and Walter LaGrand be declared void.
The case marks the 1st time in history the International Court of Justice
will rule on an international treaty as it applies to domestic use of
the death penalty, and it illustrates the growing dissatisfaction of
foreign governments towards repeated treaty violations by the U.S.,
especially in cases involving death sentences. "What the LaGrand
case shows is the degree to which the U.S. is determined to use capital
punishment, which puts a lot of strain on democratic progressive countries,"
said John Cary Sims, a law professor at the University of the Pacific.
"Germany is persisting, and I think
that's a reflection of the European attitude of bewilderment of why
the U.S. chooses to give up influence with its allies."
Germany is not the first country to try to prevent the U.S. government
from executing one of its nationals. In 1998, Paraguay tried to block
the execution of Angel Breard, a Paraguayan citizen, in Virginia. Breard
was convicted in 1992 and sentenced to death for the murder of a Virginia
woman, but law enforcement officials had failed to notify him of his
right to consular access. The Paraguayan government learned of Breard's
conviction years later. As a result, they asked the World Court to intervene.
Despite a request by the Court that the U.S. take "all measures
at its disposal" to prevent
the execution until it determined whether the U.S. violated the Vienna
treaty, the governor of Virginia and the U.S. Supreme Court chose not
delay Breard's execution.
The U.S. government, meanwhile, continues to address treaty violations
through apologies and diplomatic channels. In a letter to Paraguay,
the U.S. stated that Mr. Breard was not informed of his rights to consular
access and that the U.S. government had unquestionably violated the
Vienna treaty. After apologizing to Paraguay, the letter went on to
read:
"We fully appreciate that the United States must see to it that
foreign nationals in the United States receive the same treatment that
we expect for our citizens overseas. We cannot have a double standard."
At present, 89 foreign nationals representing 31 countries are on death
row in the U.S., according to the Death Penalty Information Center,
a research organization based in Washington, D.C. 15 have been executed
in the past decade, including 12 in the last 3 years. Legal experts
say that in almost all cases, these defendants were not notified after
arrest of
their right to consular assistance. "In virtually every case they
were effectively deprived of consular assistance," said Mark Warren,
an Ottawa resident who monitors cases of foreign nationals for Amnesty
International. "You can't exercise a right that you're not aware
of and most foreign nationals are genuinely not aware of that right."
Warren said much of the problem stems from the U.S. government's insistence
that no punishment exists for treaty violations. "If there was
a penalty for non-compliance then I think you would see a marked improvement,"
Warren said. "The most effective way of compliance is by means
of a court order." But it is precisely in the U.S. courts where
the vast majority of problems occur. In most cases, defense attorneys
fail to introduce the Vienna Convention treaty in the trial court because
they are unfamiliar with it. The same goes for many local law enforcement
officials. By the time cases reach the appellate level, invoking the
treaty is too late and dismissed by procedural default, which basically
means the defendant failed to raise his claim in state court. "You
can't fail to make an argument and then raise it in federal court,"
said Sims, who specializes in U.S. constitutional law. "You have
to make your arguments in a timely fashion." Sims said that everyone
agrees the
Vienna treaty is routinely violated, but the procedural default issue
comes up when thinking about possible remedies.
In recent years the State Department has stepped up its efforts to
raise awareness of the treaty. It has produced a booklet of instructions,
which it distributes to federal, state and other local law enforcement
officials regarding treaty obligations. It has also produced thousands
of wallet- sized notification cards for police officers, which were
sent to all state attorneys general for distribution. But some question
whether these efforts have reached the lowest levels of law enforcement.
Warren, of Amnesty International, said he sees no significant evidence
of that. "We still receive routine reports on non-consular access,"
Warren said. "The lowest levels (of law enforcement) need to be
attacked. The only other mechanism for complying with the treaty is
through judicial intervention." But the U.S. government's stance
is that the federal courts have no jurisdiction over treaty violations.
And others say awareness of the treaty has only really emerged in the
last 3 or 4 years. "Prior to 1996, most judges and defense attorneys
were unaware (of the treaty)," said Linda Carter, a death penalty
expert and former Utah public defender. "I think the judiciary
is better educated now. The problem is whether it filters down to the
police level."
Some states and local jurisdictions are beginning to make greater efforts
to comply with the treaty, but these initiatives have been scattered.
California has passed legislation, for example. State law now requires
full compliance with the treaty. Police officers must notify foreign
nationals of their consular rights within 2 hours of detention. There
are
23 foreign nationals on death row in California.
In September, the Chicago Sun-Times reported that the Chicago police
decided to print notices in Polish and Spanish in the lockups of the
city's 25 police districts after Mexico and Poland complained that their
citizens' rights
were being violated. The signs are reported to have the numbers of the
Mexican and Polish consulates in Chicago. Both countries have nationals
on death row in Illinois.
In Indiana, none of the state's 44 death row inmates are foreign nationals,
according to the Indiana Department of Correction. Anthony Sommer, an
attorney and major on the Indiana State Police Force, said the heads
of all law enforcement agencies and police departments have received
the U.S. State Department's instructional booklet on the treaty. Sommer
noted that the instructions have been especially helpful in finding
interpreters for arraignments in the courts.
"One of the key things that happens in the whole process from my
point of view is getting interpreters," he said.
Sommer said the search for interpreters is worked out through a dialogue
between the person arrested, consular officials and the U.S. State Department.
Often, the interpreters are found in local universities. But while the
World Court's 15 judges deliberate on the LaGrand case, many foreign
governments are keeping a close eye. Under the treaty, the U.S. has
a binding obligation to the court, and how the U.S. will respond to
a ruling in Germany's favor could have significant implications on future
diplomacy. Yet another concern is how Americans detained abroad could
be affected should the U.S. not take its international treaty obligations
seriously.
"It could very seriously affect Americans abroad," Carter
said. "I think you are seeing foreign governments getting quite
upset with this."
Still others say the problem will only get worse before it gets better,
regardless of how the LaGrand case turns out.
"I don't think this issue will go away," Warren said. "This
isn't rocket science. You do need to ensure that a foreign national
has consular assistance." (source for both: The Synapse)
Martin Yant
Author, Journalist & Private Investigator
PO Box 14306
Columbus, OH 43214
Phone: 614-447-8456
Fax: 614-447-8465
http://truthinjustice.org/yant/
Special Thanks to Nancy S. Erickson
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