I joined the Public Law Team at Hardwicke in April 2011 and I am now on sabbatical having secured a Research Fellowship with Reprieve, an NGO which advocates for the human rights of prisoners on death row worldwide, in secret prisons and those detained in Guantanamo Bay.
I am working on a project to identify and assist foreign nationals on death row in the USA and I am based full time in New Orleans, Louisiana. I have been allocated a number of states within which I will be surveying the death row population for foreign nationals and cultivating relations with public and private capital defenders. The work so far has taken me to Kentucky and Florida, and while the project has generally had a positive reception from defence lawyers, we continue to face both logistical and legal challenges which I will address in future articles. In this article I present an introduction to the EC Project and the work that Reprieve does.
A Brief Introduction to the Reprieve EC Project
Reprieve has over ten years of experience working on the cases of British nationals sentenced to death in the U.S. and around the world. During this time, Reprieve has helped to coordinate timely and effective intervention by the British government from the pre-trial stage to clemency, including the filing of amicus briefs, making high level diplomatic representations, and providing investigation and litigation assistance. In 2009, Reprieve’s work was extended following the launch of a three year project, largely funded by the European Commission. This project is designed to identify and assist other foreign nationals facing the death penalty in the US and to facilitate consular intervention in their cases.
Reprieve’s work relies on the Vienna Convention on Consular Relations 1963 (“VCCR”) – an international treaty which codified the minimum international requirements for all consular functions. The US unconditionally ratified the VCCR in 1969 and by doing so, made the consular requirements contained therein legally binding on all US law enforcement authorities1.
Specifically, Article 36 broke new ground by enshrining the right of foreign nationals to be informed that they may choose to have their consulate informed of their detention and by entitling consular officers to communicate and assist their detained nationals.
Article 36 of the VCCR provides that:
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 be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;
(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.
As is clear from the wording of the Article, the treaty does not require or compel a consulate to take any action on behalf of their nationals. However, many countries highly value the right to provide consular services to their detained nationals, particularly where the individual is facing the death sentence.
The problem with Article 36, however, is that law enforcement authorities often fail to comply with it. It was this widespread failure in the US which led the American Bar Association (“ABA”) to adopt Guideline 10.6 which provides:
A. Counsel at every stage of the case should make appropriate efforts to determine whether any foreign country might consider the client to be one of its nationals.
B. Unless predecessor counsel has already done so, counsel representing a foreign national should:
1. immediately advise the client of his or her right to communicate with the relevant consular office; and
2. obtain the consent of the client to contact the consular office. After obtaining consent, counsel should immediately contact the client’s consular office and inform it of the client’s detention or arrest.
a. Counsel who is unable to obtain consent should exercise his or her best professional judgment under the circumstances.”
Although the onus under the VCCR is clearly on the detaining authority to advise foreigners of their consular rights and to notify consulates, the ABA Guidelines recognize that defence counsel may instead need to provide the required consular information to clients and notify consulates on their behalf.
Subsection A is included in the Guideline to emphasize that the determination of nationality may require some effort by counsel. Many foreign nationality laws are surprisingly flexible and a person whose foreign nationality connections go back generations may be able to have their nationality recognized. A foreign government might recognize a US citizen as one of its nationals on the basis of an affiliation (e.g. one grandparent of that nationality) that would not be apparent at first glance. For example, the “Spanish Memory Law” provides that descendants of Spaniards who fled the country between 1936 and 1955 out of fear of economic hardship or political persecution can apply to have their Spanish citizenship recognized. Similarly, descendants of Germans who were deprived of their citizenship on political, racial or religious grounds between 1933 and 1945 can have their German citizenship recognized.
Reprieve are working hard to ensure that defence teams, from pre-trial to clemency, properly investigate the background of their clients to determine whether or not they have any foreign ties which may entitle them to recognition as a foreign national.
There a number of things that a consulate can do to assist their foreign nationals detained abroad. These include: providing direct legal representation, facilitating funds to the defence, explaining the legal procedures of the detaining country (which can be vitally important where a foreign national is detained in an alien legal system), providing interpreters, helping individuals to get in touch with or stay in touch with family members, and generally by acting as a cultural bridge between the detainee and his/her defence team.
Consequently, any failure of local US authorities to comply with their obligations under the VCCR is likely to have both practical and legal implications for a detained foreign national. Simply put, foreign nationals convicted of a crime without being able to notify or have access to their Consulate may use that breach to challenge the soundness of their conviction if there is a substantial risk that the breach resulted in or contributed to a miscarriage of justice.
Until recently, US domestic courts have been unwilling to rectify the failure of the US to honour its consular treaty commitments. As a result, a string of cases have been brought by the governments of Paraguay, Germany and Mexico before the International Court of Justice (“ICJ”) to compel the US to provide an effective remedy where provisions of the VCCR have been breached. The ICJ decisions in these cases focus on Article 36 and recognize the central role that consular assistance may play in capital trials. In LaGrand2, for example, the ICJ held that the VCCR violations “prevented Germany, in a timely fashion, from retaining counsel for [their nationals] and otherwise assisting in their defence as provided for by the Convention.” 3
Although the ICJ rulings were legally binding on the US as a matter of international law, the US Supreme Court has not yet directly ruled on whether or not the right to consular notification and access is judicially enforceable in US courts. Instead, in June 2011, Senator Patrick Leahy proposed new legislation, the Consular Notification Compliance Bill, to address US compliance with the VCCR. If enacted, the Bill will give jurisdiction to federal courts to review the cases of foreign nationals currently on death row in the United States who did not receive consular access as required by the VCCR. The legislation will also provide that courts must ensure that all foreign nationals charged with a capital offense are informed of their right to contact their consulate.
What Reprieve does to help
While the legal position for remedying a breach is still unresolved, Reprieve continues to engage foreign governments in cases where a detainee has foreign ties. The role that Reprieve plays is decided on a case by case basis and we are always guided by defence counsel in our work. Some examples of what Reprieve have done in the past include: records collection and investigation in the country of origin, assisting individual’s to have their nationality formally recognized, locating cultural experts to help in the mitigation process, assisting with amicus briefs, and making diplomatic representations.
Evidently there are significant challenges involved in defending a foreign national. However, these challenges can be overcome with the assistance of conscientious capital defence teams. Reprieve is working to ensure that defence teams in the US are adequately informed and resourced to ensure that foreign nationals facing the death penalty can effectively defend themselves.
Article by Anna Tkaczynska
1 – Article 36 obligations are binding on state, local governments and the federal government, primarily by virtue of the Supremacy Clause in Article VI of the US Constitution
2 – (FRG v US), 2001 ICJ 466, (June 27)
3 – Id at 497-498