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Defendants can’t assert Vienna Convention

Brown

“Nowhere in the text of the treaty can we find a statement or even a suggestion that the signatory nations intended to provide for a private right of enforcement of the provisions in the courts of the receiving states in criminal cases.”

Judge Richard S. Brown
Wisconsin Court of Appeals

Article 36 of the Vienna Convention does not bestow a judicially enforceable individual right on foreign nationals who have been detained by police to consult with their foreign consulate, the Wisconsin Court of Appeals held on Feb. 19.

As a result, an alien cannot suppress a statement to police, based on the failure of police to notify him of this right.

In March 2001, Jose Carlos Navarro was arrested after a drug-related undercover police investigation. At the police station, Navarro was booked and interrogated after acknowledging and waiving his Miranda rights.

At the booking, the police learned that Navarro was not a citizen of the United States, but of Mexico. During the interrogation, Navarro made a potentially incriminating statement to the police. At no time did the police advise Navarro that he had the right to contact the Mexican consulate for assistance.

Navarro was later charged with various felony drug offenses, and moved to suppress his statements, asserting that the police had violated Navarro’s right to consular assistance pursuant to Article 36.

At a hearing, Professor Douglass Cas-sel, an expert on international law and Mexican consular operations and procedures, testified that any statement made by Navarro without first notifying the Mexican consulate violated the Vienna Convention and should not be admitted into evidence.

The State stipulated that Article 36 required the police to notify Navarro of his right to consular notification and that, although the officers were aware that Navarro was a foreign national at the time of his booking, they did not notify him of his right. The State further stipulated that Navarro would have availed himself of consular assistance as guaranteed by the treaty had he known about it.

Nevertheless, Waukesha County Cir-cuit Court Judge Mark Gempeler denied the motion to suppress, and Navarro pleaded guilty to one felony drug count. Navarro appealed, but the court of appeals affirmed in a decision by Judge Richard S. Brown.

Article 36

What the court held

Case: State of Wisconsin v. Jose Carlos Navarro, No. 02-0850-CR.

Issue: Does Article 36 of the Vienna Convention bestow a judicially enforceable individual right upon foreign nationals who have been detained to consult with the consular officials of their country?

Holding: No. The Convention creates no private rights that individuals can enforce in a criminal proceeding.

Counsel: Michael S. Holzman, Waukesha, for appellant; Paul E. Bucher, Waukesha; Maura F.J. Whelan, Madison, for respondent.

Article 36 of the Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820 provides in relevant part:

"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."

Standing

The court determined that an individual foreign national does not have standing to assert a violation of Article 36 in a domestic criminal case.

The court acknowledged that several federal district courts have held that the Convention does confer an enforceable right on individuals. Nevertheless, the Fifth Circuit and Sixth Circuit have both held to the contrary.

The court agreed with those circuit courts, concluding, "in light of the well-established principles of international law that guide judicial construction of a treaty, we are convinced that the Vienna Convention does not confer standing on an individual foreign national to assert a violation of the treaty in a domestic criminal case."

The court noted that, although a treaty becomes the law of the land and is on equal footing with federal statutes, international treaties generally do not create personal rights that an individual may enforce in the courts of its signatory nations.

Citing the United States Supreme Court decision in Edye v. Robertson, 112 U.S. 580, 598 (1884), the court iterated: "A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamation, so far as the injured parties choose to seek redress, which may in the end be enforced by actual war.

It is obvious that with all this the judicial courts have nothing to do and can give no redress."

Also, for a treaty to permit a private right of action, the treaty must explicitly so provide. Furthermore, if a treaty is ambiguous, the presumption against implying private rights applies.

Applying these general principles, the court stated, "Nowhere in the text of the treaty can we find a statement or even a suggestion that the signatory nations intended to provide for a private right of enforcement of the provisions in the courts of the receiving states in criminal cases."

Furthermore, the preamble unambiguously renounces any such intent, providing, "the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States."

Quoting U.S. v. Li, 206 F.3d 56, 66 (1st Cir. 2000)(Selya & Boudin, JJ., concurring), the court stated, "Of course, there are references in the [treaty] to a ‘right’ of [consular] access, but these references are easily explainable. The contracting States are granting each other rights, and telling future detainees that they have a "right" to communicate with their consul is a means of implementing the treaty obligations as between States. Any other way of phrasing the promise as to what will be said to detainees would be both artificial and awkward."

The court further noted that sensitive matters of international relations are implicated, warranting deferral to the position of the State Department, which has consistently taken the position that, although implementation of the treaty may benefit foreign nationals, it does not create judicially enforceable individual rights that can be remedied in the criminal justice systems of the member states.

In addition, the court found that no country remedies violations of the Convention through its criminal justice system, concluding, "These practices evidence a belief among Vienna Convention signatory nations that the treaty can be enforced, violations remedied, and future infractions prevented without invading the province of a sovereign nation’s criminal courts."

The LaGrand Case

The court then rejected an argument by Navarro based on the decision of the International Court of Justice in the LaGrand Case, Germany v. U.S.A., 2001 I.C.J. 104 (June 27, 2001).

In LaGrand, Germany complained before the ICJ that the U.S. had violated the consular rights of the German government itself and of the LaGrands, two German nationals who were not informed of their consular rights until many years after their arrest for murder in Arizona.

In LaGrand, the ICJ concluded, "Article 36, paragraph 1, creates individual rights, which … may be invoked in [the ICJ] by the national State of the detained person." LaGrand, 2001 I.C.J. 104 at par. 77.

The court of appeals concluded, however, that nothing in the statement referring to ICJ proceedings suggests that the Convention creates legally enforceable individual rights that a defendant may assert in a domestic criminal proceeding to reverse a conviction.

Breard v. Greene

The court next found that the U.S. Supreme Court decision in Breard v. Greene, 523 U.S. 371 (1998), did not support Navarro’s position, either. There, the Court acknowledged that the Convention, "arguably confers on an individual the right to consular assistance following arrest."

However, the Court ultimately concluded that the defendant procedurally defaulted his Article 36 claim, and declined to address the question. In addition, the Court suggested that the Convention does not provide a state a private right of action to seek a remedy for a violation in the federal courts.

Links

Wisconsin Court of Appeals

Related Article

Case Analysis

From this, the court of appeals concluded, "With the Supreme Court having expressed doubt that a foreign sovereignty to whose benefit the Vienna Convention inures would have a private right of action in domestic courts, it seems highly unlikely that an individual foreign national could pursue an action."

Concluding, the court stated, "In the absence of explicit language in the treaty granting individual foreign nationals a right of enforcement and a definitive directive from the United States Supreme Court, we can see no reason to depart from the well-established general principles of international law, the expressed position of the State Department, and the apparent long-standing practices of the international community to find that Navarro has a private right of action he can enforce in a state criminal proceeding. Further, such a conclusion would risk our interfering in the nation’s foreign affairs and it is beyond question that ‘[i]ncalculable mischief can be wrought by gratuitously introducing into this often delicate process court enforcement at the instigation of private parties.’ See Li, 206 F.3d at 68 (Selya & Boudin, JJ., concurring)."

Accordingly, the court held that Navarro lacked standing to enforce the convention, and therefore, his motion to suppress was properly denied.

Click here for Case Analysis.

David Ziemer can be reached by email.

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