“In the absence of any administrative or other alternative to measures we have already rejected (such as suppression of evidence), a damages action is the only avenue left.”
Hon. Diane P. Wood
A foreign national who is not advised of his right to contact his consulate for assistance can sue for damages, the Seventh Circuit held on Sept. 27.
Since 1969, the United States has been a party to the Vienna Convention on Consular Relations (Vienna Convention), Apr. 24, 1963, 21 U.S.T. 77, TI.A.S. No. 6820, 596 U.N.T.S. 261. Article 36 of the Convention requires host states to ensure that a foreign national charged with a crime knows that he has the right to contact an official representative of his or her native country for assistance with legal proceedings.
Tejpaul S. Jogi is a citizen of India who was arrested and convicted of aggravated battery with a firearm in Illinois state court. Jogi pleaded guilty to the crime and served six years of a 12-year sentence; at that point, he was removed from the United States to India.
No state official ever advised him of his right under the Vienna Convention to contact the Indian consulate for assistance, although the detectives knew he was Indian.
Jogi filed suit in federal court, seeking compensatory, nominal, and punitive damages. The district court dismissed the action. Jogi appealed, and the Seventh Circuit reversed in a decision by Judge Diane P. Wood.
The court began by concluding that it had subject matter jurisdiction, pursuant to the recent U.S. Supreme Court decision in Sosa v. Alvarez-Machain, 124 S.Ct. 2739 (2004).
The court concluded, His complaint alleges that he is the victim of a tort committed in violation of a treaty of the United States the Vienna Convention. He does not assert that his claim arises under customary international law, and so the knotty question of the degree to which customary international law is in fact federal law, or federal common law as opposed to state common law, need not detain us. The [Alien Tort Statute] confers jurisdiction on the federal district courts to adjudicate this type of case. Indeed, so does 28 U.S.C. 1331, which today says that [t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.
The court then concluded that the treaty creates an individual right that can be enforced in court, and is not limited to rights between nations.
What the court held
Case: Tejpaul S. Jogi v. Tim Voges, No. 01-1657.
Issue: Can a foreign national sue for civil damages if he is arrested and not informed of his right to notification of his consulate?
Holding: Yes. Article 36 confers individually enforceable rights, not merely rights between nations.
The court acknowledged that the preamble appears to deny that it confers individual rights, by stating that the convention, realiz[es] that 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.
However, in two places, the convention singles out individual rights, one of them being Article 36(b): if [a foreign national] 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.
Article 36(c)1 further provides that the laws of the receiving State must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.
Acknowledging the tension between the preamble and the language of Article 36, the court concluded the specific article confers individual rights, stating, It is a mistake to allow general language of a preamble to create an ambiguity in specific statutory or treaty text where none exists. Courts should look to materials like preambles and titles only if the text of the instrument is ambiguous.
The court also looked to the treatys negotiation history, and found it replete with concern about individual rights. When Venezuela proposed an amendment that would have eliminated the individual right of consular communication, it received strong opposition, and was withdrawn.
The court also noted that Department of Justice and Department of Homeland Security regulations suggest the right belongs to the individual; the State Department sends regular notices to state and local officials reminding them of their notification obligations; and the United States has repeatedly invoked Article 36 on behalf of American citizens detained abroad but not granted the right of consular access.
Finally, although the United States has recently withdrawn its consent to the jurisdiction of the International Court of Justice over disputes, the president announced at the same that foreign nationals should be advised of their rights.
Turning to the issue of remedy, the court concluded it must permit an action for damages, because no other remedy exists. Like every other circuit to consider the issue, the Seventh Circuit held in U.S. v. Chaparro-Alcantara, 226 F.3d 616 (7th Cir. 2000), that application of the exclusionary rule is not an appropriate remedy for an Article 36 violation.
Citing the language in Article 36(c) that a states laws must enable full effect to be given to the purposes for which the rights accorded under this Article are intended, the court concluded, This means that a country may not reject every single path for vindicating the individuals treaty rights. In the absence of any administrative or other alternative to measures we have already rejected (such as suppression of evidence), a damages action is the only avenue left.
Accordingly, the court reversed the district court, and remanded the case for further proceedings, after first noting that the defendant may raise the statute of limitations and qualified immunity as defenses.
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David Ziemer can be reached by email.