Defendants can't assert Vienna Convention.

• Author: Ziemer, David

Byline: David Ziemer

Article 36 of the Vienna Convention does not bestow a judicially enforceable individual right on foreign nationals who have been detained by police to consult with their foreign consulate, the Wisconsin Court of Appeals held on Feb. 19.

As a result, an alien cannot suppress a statement to police, based on the failure of police to notify him of this right.

In March 2001, Jose Carlos Navarro was arrested after a drug-related undercover police investigation. At the police station, Navarro was booked and interrogated after acknowledging and waiving his Miranda rights.

At the booking, the police learned that Navarro was not a citizen of the United States, but of Mexico. During the interrogation, Navarro made a potentially incriminating statement to the police. At no time did the police advise Navarro that he had the right to contact the Mexican consulate for assistance.

Navarro was later charged with various felony drug offenses, and moved to suppress his statements, asserting that the police had violated Navarro's right to consular assistance pursuant to Article 36.

At a hearing, Professor Douglass Cassel, an expert on international law and Mexican consular operations and procedures, testified that any statement made by Navarro without first notifying the Mexican consulate violated the Vienna Convention and should not be admitted into evidence.

The State stipulated that Article 36 required the police to notify Navarro of his right to consular notification and that, although the officers were aware that Navarro was a foreign national at the time of his booking, they did not notify him of his right. The State further stipulated that Navarro would have availed himself of consular assistance as guaranteed by the treaty had he known about it.

Nevertheless, Waukesha County Circuit Court Judge Mark Gempeler denied the motion to suppress, and Navarro pleaded guilty to one felony drug count. Navarro appealed, but the court of appeals affirmed in a decision by Judge Richard S. Brown.

Article 36

Article 36 of the Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820 provides in relevant part:

"1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person...