7th Circuit rules foreign national not advised of right to contact consulate can sue for damages.

• Author: Ziemer, David

Byline: David Ziemer

A foreign national who is not advised of his right to contact his consulate for assistance can sue for damages, the Seventh Circuit held on Sept. 27.

Since 1969, the United States has been a party to the Vienna Convention on Consular Relations (Vienna Convention), Apr. 24, 1963, 21 U.S.T. 77, TI.A.S. No. 6820, 596 U.N.T.S. 261. Article 36 of the Convention requires host states to ensure that a foreign national charged with a crime knows that he has the right to contact an official representative of his or her native country for assistance with legal proceedings.

Tejpaul S. Jogi is a citizen of India who was arrested and convicted of aggravated battery with a firearm in Illinois state court. Jogi pleaded guilty to the crime and served six years of a 12-year sentence; at that point, he was removed from the United States to India.

No state official ever advised him of his right under the Vienna Convention to contact the Indian consulate for assistance, although the detectives knew he was Indian.

Jogi filed suit in federal court, seeking compensatory, nominal, and punitive damages. The district court dismissed the action. Jogi appealed, and the Seventh Circuit reversed in a decision by Judge Diane P. Wood.

Jurisdiction

The court began by concluding that it had subject matter jurisdiction, pursuant to the recent U.S. Supreme Court decision in Sosa v. Alvarez-Machain, 124 S.Ct. 2739 (2004).

The court concluded, "His complaint alleges that he is the victim of a tort committed in violation of a treaty of the United States - the Vienna Convention. He does not assert that his claim arises under customary international law, and so the knotty question of the degree to which customary international law is in fact federal law, or federal common law as opposed to state common law, need not detain us. The [Alien Tort Statute] confers jurisdiction on the federal district courts to adjudicate this type of case. Indeed, so does 28 U.S.C. 1331, which today says that '[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.'"

Individual Right

The court then concluded that the treaty creates an individual right that can be enforced in court, and is not limited to rights between nations.

The court acknowledged that the preamble appears to deny that it confers individual rights, by stating that the convention, "realiz[es] that the purpose of such...