Can foreign nationals now challenge convictions in the US if denied consular notification and access?

Last Thursday the Massachusetts Supreme Court made a unanimous decision in the case of Commonwealth v Amaury Gautreaux, which finally recognised the need for a remedy in cases where foreign nationals are convicted without having the opportunity to notify and access their Consulates.

Simply put, foreign nationals convicted of a crime without being able to notify or have access to their Consulate may use that as a basis to challenge the soundness of their conviction, if there’s a substantial risk of a miscarriage of justice because of that breach.

The United States ratified the Vienna Convention on Consular Relations (VCCR) in 1969. Under Article 36 of the VCCR, foreign nationals must be able to communicate without delay with their Consulate on arrest or detention, and be informed of their right to do so. Likewise US citizens have the same rights when in other countries that have ratified the VCCR.

For foreign nationals who have suddenly lost their freedom, been plunged into an alien legal system and possibly accused of the most horrific crimes, assistance from the Consulate is extraordinarily important. They can provide a wealth of assistance at all stages of the process, providing everything from family contact to supporting petitions for clemency.

However, ever since the VCCR was ratified, the consequences in US domestic law of breaching the treaty has been unclear. A string of cases have been brought by the governments of Paraguay, Germany, and Mexico before the International Court of Justice (ICJ) between 1998 and 2004. These cases led the ICJ to conclude that the US must provide ‘review and reconsideration’ in cases where individuals have been sentenced to death after a breach of the VCCR.

Although the ICJ rulings were binding on the US as a matter of international law, the US Supreme Court had never ruled directly on whether the right to consular notification and access was judicially enforceable in US courts by the individual affected. In fact, the Court’s strenuous efforts to avoid addressing the question in the past have resulted in a mess, and no guarantee that any court would enforce the duty to inform a Consulate. The duty has been frequently ignored, for example, the Canadian Stanley Faulder was executed in 1999, having been held for fifteen years before Canada was informed of his whereabouts. The Texan authorities’ failure to fulfil their obligations became a major diplomatic issue between Canada and the US, prompting then Secretary of State Madeleine Albright to write to Governor Bush and to the Texas Board of Pardons and Paroles forcefully advocating a 30-day reprieve and full clemency review.

The judgment in Gautreaux finally addresses this question directly and gives people the power to challenge convictions where they are unfairly affected by a failure to inform them of their rights. This is a welcome development and a sign that obligations under the VCCR are finally being taken seriously. That said, it was also held in Gautreaux that the defendant failed to meet the ‘substantial risk of a miscarriage of justice’ test. It will be interesting to see how courts dealing with cases in the future approach this test, as it seems to be particularly ill-defined. For instance, the court formulated the test in three different ways, and the existing case law on the application of this test is equally vague. In all its forms the test seems to set the bar high for defendants, and the question we are left with is whether it will be difficult or extremely difficult for the accused to show the outcome of their trial was sufficiently affected by lack of consular access and notification for a review to be necessary.

It also remains to be seen whether this judgment will stand. Prosecutors are already raising concerns about what they call the limitless flood of appeals that this ruling will allow. We can only hope that the courts and the US recognise that it is in their interests to safeguard the same rights at home that their citizens benefit from when abroad.