Friday, July 31, 2015

Illinois Enacts Law to Better Implement Consular Notification

The issue of consular notification and access has been much in the news and in the courts in the United States over the last fifteen years.  The United States has been brought before the International Court of Justice three times (in Breard, LaGrand and Avena) for its failure to provide consular notification to foreign defendants arrested and tried in the United States as required by article 36 of the Vienna Convention on Consular Relations (VCCR). Implementation of the ICJ's decision in Avena resulted in the well known U.S. Supreme Court case, Medellin v. Texas (2008). 

Most arrests are made by local and state police officers in the United States and thus are handled at a sub-federal level.  Much of the litigation has revolved around the issue of exactly who is to give consular notice and how quickly notice must be given.  In an effort to better educate local and state law enforcement about the duty of consular notification and to increase clarity of the law and compliance with the VCCR, the state of Illinois recently adopted  a new law that specifies which law enforcement officer is to give notice, how quickly that notice must be given, and provides that judges must also ensure that notice have been given when a defendant appears in state court.

Mores specifically, Illinois Public Act 099-0190 amends the Illinois Criminal Code to require that the "law enforcement official in charge of a custodial facility shall ensure that any individual booked and detained at the facility, within 48 hours of booking or detention, shall be advised that if that individual is a foreign national, he or she has a right to communicate with an official from the consulate of his or her country. . . If the foreign national requests consular notification or the notification is mandatory by law, the law enforcement official in charge of the custodial facility shall ensure the notice is given to the appropriate officer at the consulate of the foreign national in accordance with the U.S. Department of State Instructions for Consular Notification and Access."

The new law further provides that: "At the initial appearance of a defendant in any criminal proceeding, the court must advise the defendant in  open court that any foreign national who is arrested or detained has the right to have notice of the arrest or detention given to his or her country's consular representatives and the right to communicate with those consular representatives if the notice has not already been provided. The court must make a written record of so advising the defendant. . .If consular notification is not provided to a defendant before his or her first appearance in court, the court shall grant any reasonable request for a continuance of the proceedings to allow contact with the defendant's consulate."  

It is hoped that the Illinois law will provide a model for other states. By increasing compliance with consular notification in the United States, the United States will be living up to its international obligations and setting a good example, which will hopefully lead to better compliance in other countries.


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