.
International Law That Protects
Individual Rights Not Applied,
The Right To Contact A Home Country Is Undermined
Sanchez-Llamas v. Oregon, June, 2007
http://www.supremecourtus.gov/opinions/05pdf/04-10566.pdf
VIENNA CONVENTION RULE
Under the Vienna Convention, ("Convention"), an international treaty approved by the United States in 1969, a foreign person who is arrested must be notified "without delay" of his right to seek assistance from his home country and its consul office. Local laws and rules govern this process, as long as local laws and rules give "full effect" to this right. (Vienna Convention, Article 36). The United States also signed on to the Optional Protocol portion, which gave the International Court Of Justice (ICJ) the authority to interpret the Convention.
FACTS OF THE CASES
In two separate state court cases, foreign nationals were arrested. Sanchez-Llamas was from Mexico. In an "exchange of gunfire with the police,...one officer suffered a gunshot wound in the leg." Sanchez-Llamas was taken into custody, read his Miranda rights in English and Spanish, and questioned through a police interpreter. After the arrest, he asked the court to use the exclusionary rule to suppress a confession because he was not afforded rights under the Convention. The court did not suppress the information, and proceeded to trial using the information against him. He was later convicted of the crime.
Bustillo was from Honduras. He was in a restaurant when someone was struck and killed with a baseball bat. He was arrested for murder. Eyewitnesses said he was the one with the baseball bat, but he claimed it was someone else. Neither the authorities nor his attorney advised him of his rights under the Vienna Convention. He was convicted too. He filed a writ of habeus corpus to ask the court to provide a remedy for the failure of the state to notify him of his Vienna Convention rights, also claiming that his lawyer was ineffective. A writ of habeus corpus is filed by someone who claims to be held unlawfully. The writ was denied.
SUPREME COURT ANALYSIS
Both cases came together in appeals to the Supreme Court. Chief Justice John Roberts wrote the decision. Roberts said that there was no remedy available for violations of the Convention by states because the Convention did not guarantee foreign nationals any assistance at all. Roberts failed to recognize that the Convention did not require that a person be guaranteed assistance, but only that the person be informed of his right to ask for assistance.
LIKELIHOOD OF VIOLATIONS
Roberts said that a failure to provide a person with his Convention rights would be "unlikely, with any frequency, to produce unreliable confessions...[P]olice win little, if any, practical advantage in obtaining incriminating evidence from violating the Convention rule." However, the questioning of Sanchez-Llamas, apparently with a police translator, may very well have given police that "practical advantage," but Roberts did not consider this. Roberts did not show any concern about rights being violated in the two cases in front of him.
REMEDIES FOR VIOLATIONS
Roberts assumed that there were remedies available for such a violation under the usual state procedures. Under the "procedural default rule," the usual state rules govern actions in state courts. The Supreme Court normally reviews cases where a federal right like a constitutional right or a convention right violation was claimed. Roberts did not examine the state rules to see if they included an enforcement mechanism or a remedy for a violation of the Convention. Since the state rules were not reviewed for compliance, Roberts deemed the Convention right meaningless.
Justice Stephen Breyer, in his dissenting opinion, discussed the history of the Convention. The Convention was passed in the late 1960s, when communist nations were powerful. The phrase in the Convention requiring that "laws and regulations must enable full effect to be given" to the rights provided in it was supported by most signers of the Convention. The United Kingdom supported this language while countries like the Union of Soviet Socialist Republics, communist satellite countries like Czechoslovakia and Romania, and the Congo opposed the "full effect" term. Despite opposition, the language was adopted. Now, Roberts, aligning with the communist countries of an earlier era, decides that the "full effect" is really no effect.
Breyer's dissent pointed out that the Convention, by including the language "full effect," means that there has to be some remedy for violations of the Convention.
Breyer suggested that he would have sent the case back to the lower court to take a look at the Convention rule, and determine whether there was an appropriate remedy under state laws. Since the prior court case records did not fully consider possible state remedies or safeguards, the lower courts should be required to take another look at the cases.
INTERNATIONAL COURT OF JUSTICE VIEW
The International Court Of Justice (ICJ) had written decisions to support Breyer's dissenting view. Where the Convention was violated, there had to be some kind of "review" of the "conviction and sentence by taking account of the violation" of the Convention. LaGrand Case (F.R.G. v. U.S.) 201 I.C.J. 466 (Judgment of June 27). Roberts discounted the ICJ by saying "although the ICJ's interpretation deserves 'respectful consideration,...' we conclude that it does not compel us."
Conveniently, just months before the Supreme Court wrote this decision and well after these cases started, Secretary of State Condoleezza Rice sent a letter to the United Nations withdrawing from the Optional Protocol portion of the Convention. This section of the Convention required signers to apply ICJ interpretation to the Convention. The withdrawal allowed Roberts to say "it is doubtful that our courts should give decisive weight to the interpretation of a tribunal whose jurisdiction in this area is no longer recognized by the United States."
Roberts also said that the Convention did not give people a right to sue to protect their rights. He said the Convention only applied to states--not to people. However, Breyer pointed out in the dissent that the ICJ had "allow[ed] foreign nationals to bring claims based on ... violations." Case Concerning Avena and other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. No. 128 (Judgment of Mar. 31).
THE EXCLUSIONARY RULE
After minimizing the ICJ decisions, Roberts said he should look at domestic law. Domestic law included the exclusionary rule. This rule was used by courts sometimes to prevent the admission of illegally obtained evidence into court. Roberts said the exclusionary rule was out of proportion to the violation and should not be used here.
Having decided to use the domestic exclusionary rule, Roberts immediately turned to what foreign countries were doing. Generally, foreign countries were not using our domestic rule. That could have been expected since they have their own rules. In fact, other governments use an eintrely different system, an inquisitorial system, whereas the United States uses an adversarial system. Nevertheless, Roberts said the domestic law was not appropriate because foreign countries under very different systems were not using it.
Breyer, in his dissent, pointed out that the exclusionary rule was not specifically required by the Convention. The Convention merely required that there be some method of upholding people's rights. In an adversarial system, like the United States, the judge sat passively while the parties did the work, and usually the jury decided. Evidence was routinely excluded from trials for various reasons. Most other countries used the inquisitorial system. In that system, the judge asked questions and played an active role in the trial. The judge, being trained in the law, presumably knew which evidence to consider and which to excluded. Consideration of evidence depended on "rules of decision rather than rules of exclusion." Parties then had the right to appeal. Apparently, there has been no case where a judge failed to consider the Convention rule; but, should a case arise, the inquisitorial system itself might be considered an appropriate remedy for violations of the Convention.
MIRANDA WARNINGS
The discussion in this case also included the famous Miranda rights. Miranda v. Arizona, 384 US 436 (1966). Miranda considered the principle that people must be notified of rights or they may not be able to exercise the rights. Since the Convention rule required that a foreign national be notified of his right to contact his home country, the best insurance that the person would be able to exercise the Convention right would be to tell the person that he had the right. Add the Convention rights notification after the Miranda warning. Neither the Roberts decision nor the Breyers dissent seriously suggested this.
RESPECT FOR INTERNATIONAL LAW
It is curious that Roberts says near the end of the case, "Our holding in no way disparages the importance of the Vienna Convention." This statement appears empty after Roberts refuses in every way possible to allow for any remedy for a violation of the law of where it was created to prevent treading upon individual rights.
NOTE: THE RISK OF GIVING UP SOVEREIGNTY TO A FOREIGN COURT
If the Supreme Court had decided to support the ICJ's intepretation of the Convention, would that have submitted the United States to foreign control? No. The Vienna Convention is a treaty ratified by Congress. The treaty went through the normal course of the constitutional requirements, and became the Supreme law of the land. The Supreme Court, by refusing to provide any remedy for violations of this treaty, did not uphold this treaty which is also domestic law. It is curious that this particular treaty provision happened to protect individual rights, not business rights.
Since this treaty was made effective by Congress and the President, it can be changed under the usual process at any time. There would have been no risk whatsoever to domestic sovereignty had the Supreme Court either sent these cases back to the states for a determination considering whether there is an appropriate remedy in either state or applied a test similar to the Miranda case. If Congress and the President were unhappy with the decision, they could have then changed the law through the ordinary process. Since this was not a constitutional issue, the Supreme Court decision may be effectively overriden by an act of Congress.
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