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January 21, 2006

Virginia Supreme Court rejects novel Vienna Convention remedy

As detailed in this post, earlier this month a state court judge in Virginia issued an interesting and ground-breaking opinion which declared that prosecutors could not seek the death penalty in a capital murder case because police had violated the defendant's Vienna Convention rights.  But, earlier this week, as detailed in this Washington Post article, the Virginia Supreme Court reversed this ruling and declared "that prosecutors can ask for the death penalty in the case of a Vietnamese man accused of strangling a Fairfax County woman and her 22-month-old daughter."

January 21, 2006 at 03:13 PM | Permalink

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Does anyone know of a published case in any other country where a punishment has been precluded or a confession suppressed as a remedy for a Vienna Convention violation alone? I have found cases where consular notification issues were included in an amalgam of other violations which would have been sufficient by themselves, but none for this issue alone or even principally.

Posted by: Kent Scheidegger | Jan 22, 2006 1:26:47 PM

So far violations of Article 36 of the VCCR have been raised in reported cases from Australia, Canada, Germany, Italy, Singapore and United Kingdom. (Interestingly Sigapore's ratification postdates the court case.) None of these courts decisions provided a remedy affecting the admission of evidence or punishment based solely on the treaty violation.

The fundamental problem with using supression as a remedy is that it assumes that the foreign national will chose to notify the consulate of his/her situation. At the request of the Dept of State, Georgia studied this issue. We tracked all detentions of foreign nationals in city and county jails for a 14 day period. Only 13.9% of foreign nationals from non-mandatory countries wanted their consulates notified of their arrest and detention. The second problem with the remedy is that it assumes that every foreign consulate will promptly respond to a request for assistance from one of their nationals. The reality is far different. Many consulates (and embassies) do very little for their nationals who are arrested. Our experience is that the nature of the crime, the potential penalty (death, life or a term of years), the resources of the consulate, the distance from the detention center, and the priorities of the consulate determine how much help, if any, the individual detainee will get. Even the ICJ in Avena held that interrogation does not have to stop while the consulate is notified and decides to get involved. If that is the case, then showing that the defendant was harmed merely because the defendant wasn't told he/she could communicate with the consulate is speculative at best. I have been involved with the VCCR for over 20 years and even with prompt notification, it is often days or weeks before the staff of a consulate gets around to following up on the notices they receive.


Chuck Olson
General Counsel
Prosecuting Attorneys' Council of Georgia
Atlanta, GA 30303 USA

Counsel of record for the National District Attorneys Association, amicus in Medellin v. Dretke

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Posted by: richard | Jun 26, 2007 1:52:50 PM

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