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

Special Thanks to Nancy S. Erickson

BAHAR sayisi web'dedir.



@The Light Millennium magazine was created and designed
by Bircan ÜNVER. 6th issue. Summer 2001, New York.
URL: http://www.lightmillennium.org