On June 28, 2006, the U.S. Supreme Court decided two consolidated cases involving the Vienna Convention on Consular Relations. In both cases, the foreign nationals were arrested but not informed by police officers of their consular rights under the Convention to ask that their respective consulates be notified of their detention. The Court concluded that statements made by foreign nationals do not need to be suppressed, even though the defendants were not informed of their consular rights.

The consolidated cases were: Sanchez-Llamas v. Oregon (No. 04-10566) and Bustillo v. Johnson. In the first case, Moises Sanchez-Llamas, a Mexican national, was arrested after an exchange of gunfire with police. The officers did not inform him of his rights under Article 36(1)(b) of the Vienna Convention, namely his right to ask that the Mexican Consulate be notified of his detention. He made incriminating statements about the shootout during interrogation, but the state court denied his motion to suppress those statements on the ground that the authorities failed to comply with Article 36. Sanchez-Llamas was convicted and sentenced to prison. The Oregon Supreme Court affirmed his conviction, concluding that Article 36 does not create rights to consular access or notification that a detained individual can enforce in a judicial proceeding.

In the second case, Mario Bustillo, a Honduran national, was arrested and charged with murder, but the police officers also never informed him of his consular rights. He was convicted and sentenced to prison. After his conviction and sentence were affirmed on appeal, Bustillo filed a habeas petition in state court, claiming for the first time that his consular rights under Article 36 were violated. The Virginia Supreme Court found no reversible error in the state court’s dismissal of the claim as procedurally barred because he had failed to raise it at trial or on appeal.

The U.S. Supreme Court held (6-3) that suppression of evidence is not an appropriate remedy for a violation of a treaty, even under the assumption that the Convention creates judicially enforceable rights. The Court found that neither the Vienna Convention nor the Court’s precedents applying the exclusionary rule support suppression or any other specific remedy, but expressly leaves Article 36’s implementation to domestic law. Because the Vienna Convention does not provide a particular remedy, the Court reasoned that it is not for the federal courts to impose a remedy on the states. The Court also noted that Article 36 has nothing to do with searches or interrogations, so the exclusionary rule, which has been used primarily to deter certain Fourth and Fifth Amendment violations, should not apply.

The Court held that states may subject Article 36 claims to the same procedural default rules that apply generally to other federal-law claims. The Court based its holding on Breard v. Greene (1998) (a capital case) in which it had held that the petitioner’s failure to raise an Article 36 claim in a state court prevented him from having the claim heard in a subsequent federal habeas proceeding. The Court followed its reasoning in Breard that in international law, absent a clear and express statement to the contrary, the procedural rules of the forum state govern the implementation of the treaty in that state. The Court also indicated that treaty protections, such as Article 36, are like the provisions of the Constitution, to which rules of procedural default apply.

In a dissent joined by two other justices, Justice Breyer criticized the majority for not deciding whether a criminal defendant may, at trial or in a post-conviction proceeding, raise the claim that state authorities violated the Convention. The majority assumed the answer to be “yes,” but did not decide the matter because it concluded that in any event the foreign nationals in the two cases were not entitled to the remedies they sought. However, Justice Breyer concluded that a criminal defendant may have judicially enforceable rights under the Convention. He examined the Convention provisions and determined that the nature of the provisions indicated that they were intended to set forth standards that are judicially enforceable. Justice Ginsburg, though siding with the majority, also said that the treaty establishes individual rights.

Breyer also asserted that suppression of evidence may sometimes provide an appropriate remedy. Miranda warnings guarantee that police will inform an arrested foreign national of his right to contact a lawyer, but “one cannot guarantee in advance that Miranda will adequately cure every seriously prejudicial failure to inform an arrested person of his right to contact his consular post.” He reasoned that a person who fully understands his Miranda rights, but does not fully understand the implications of his consular rights in our legal system, may have a claim under the Vienna Convention. In such a case, suppression may prove to be the only effective remedy.

See Supreme Court and Foreign Nationals. There are over 100 foreign nationals on death rows across the country, most of whom were also not informed of their rights under the Vienna Convention.