Sat, Mar. 01, 2008

Violation of Consular Rights

CK - Washington.   The ICJ LeGrand decision against the United States provided the German Supreme Court, Bundesgerichtshof, with an opportunity to explore the remedies available to compensate for evidence obtained from foreigners before they received advice on their right to consular notification.

German customs agents had interrogated appellants crossing the border and explained their Miranda-type rights through an interpreter. In the arraignment proceeding and after appellants had made statements relating to a violation of narcotics laws, the judge advised the appellants of their right of consular notification under article 36 of the Vienna Convention on Consular Relations of 1963. The appellants waived notification and continued to make statements. The resulting criminal conviction was based in part on their statements. An appeal to the Supreme Court followed.

In the matter 3 StR 318/07, the court noted that the failure to advise appellants of their treaty right--as soon as the customs agents realized appellants were foreigners--was inexcusable. It examined the treaty obligations and remedies for the use of the poisonous fruit in the criminal case, especially in light of the Avena and LeGrand decisions of the International Court of Justice.

Analyzing the LeGrand ruling, the court held that the ICJ had opened a path to various remedies available to the United States; the reversal of a conviction is only one of them. Considering also human rights conventions and precedent from the European human rights court, the court concluded that the specific facts did not warrant any compensatory remedy and upheld the conviction on December 20, 2007.


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