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.

Citation Guide