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Departments : Point of Law

Arresting Foreign Nationals

Special guidelines often apply when taking foreigners into custody.

April 01, 2005  |  by Devallis Rutledge - Also by this author


The world is, as they say, getting smaller. International travel and relocation are commonplace, which means that police officers everywhere are more likely to encounter crime victims, witnesses, and suspects who are not U.S. citizens. Because of federal law, special procedures may sometimes apply when dealing with foreign nationals.

Vienna Convention on Consular Relations

Under Article VI of the U.S. Constitution, treaties signed by the United States are the supreme law of the land. Where a treaty imposes a duty on local police officers, it is as binding as any federal statute or constitutional provision. One such treaty is the Vienna Convention on Consular Relations, which this country ratified in 1969.

Picture this: You are traveling on vacation in a foreign country and find yourself in the custody of the local constabulary, whether because of drunk driving, misbehavior, or misunderstanding. The locals are not impressed with your badge and probably don’t understand when you try to tell them in your native language about your involvement in some questionable circumstances. Who you gonna call?

If you happen to be in one of the 195 countries that have signed the Vienna Convention, you’re going to call the American consul, who will be allowed to visit you and get assistance started. The consul will arrange legal counsel and bail, get word to your family, communicate with local officials about your need for medical care or other accommodation, and help to correct misunderstandings, if possible. At such a time, you will be very thankful for the protection of the Vienna Convention.

Treaties are Reciprocal

Far more likely than the scenario just described is this one: You arrest and jail a foreign national on suspicion of having committed a crime in your jurisdiction. He gets arraigned in a day or two and criminal proceedings are scheduled. In the meantime, he’s unable to communicate that he is a diabetic and needs insulin. He becomes very ill and has to be hospitalized.

Provisions of the Vienna Convention were designed to allow foreign-custody situations to be handled like the former scenario, rather than the latter. The treaty is binding on all countries that have signed it, but if American officials fail to comply it is more difficult for the United States to demand compliance from other countries where our citizens’ rights are involved.

Notice and Access

The essential provisions of the Vienna Convention are notice and access. When you arrest a person who is a suspected foreign national from any of the signatory countries, it is your legal obligation to provide the notices and rights of access guaranteed by the treaty. This includes a duty to inform the arrestee of his right to consular notification. (To obtain a complete list of participating countries and additional information, contact the U.S. State Department at 202-647-4415 or 202-647-1512, or visit http://travel.state.gov/consul_notify.html)

In some cases, it is mandatory that you notify the appropriate consul of the arrest (or death) of a foreign national. In other cases, this notice is optional, depending upon whether or not the arrested person requests it. However, the notification rules do not apply to temporary detention for traffic citation.

At least 58 countries have entered into reciprocal agreements with the U.S. for mandatory notifications. This list includes such nations as China, the Philippines, Russia, and the United Kingdom. If you take one of their nationals into custody, you are required to notify their consul.

If the arrestee is not from one of the mandatory-notification countries but is from another signatory country (such as Canada or Mexico), you must offer the person the opportunity to have his consul informed of his arrest and location. If he so elects, you must provide prompt notification and allow access, subject to reasonable restrictions as to time, place, and security. Sample advisement cards and fax notification forms and numbers are available from the State Department.

Tags: Point of Law


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