Does a Violation of a Right Provided by the Vienna Conventions Implicate the Exclusionary Rule?

Sanchez-Llamas v. Oregon

The Vienna Conventions require that if someone is detained in a foreign country, upon their request, the consulate of their own country will be informed without delay, and the detainee will be informed (without delay) of his rights under the Convention. The Convention also provides that the rights contained within it shall be exercised “in conformity with the laws and regulations of the receiving state, subject to the proviso, however, that the said law and regulations must enable full effect to be given to the purposes for which the rights accorded under [the] Article are intended.” On March 7, 2005 the United States withdrew from the Optional Protocol, giving the ICJ authority over disputes of interpretation of the Convention. Sanchez-Llamas, who was arrested after a shootout with the police, moved to suppress his incriminating statements made during interrogation because, though he was read his Miranda rights, he claims that his statements were made involuntarily and because the authorities failed to comply with the Convention. The Oregon Supreme Court concluded that the Convention does not grant rights to consular access or notification that are enforceable by detained individuals in a judicial proceeding.” Meanwhile, Bustillo argues that his right to consular notification was violated, but does so by writ of habeas corpus. Under Sanchez-Llamas the Court considers (1) whether the Convention creates judicially enforceable rights; and (2) whether suppression of evidence is the proper remedy for the violation of those rights. As to Bustillo, the Court considers whether a claim under Article 36 of the Convention may be deemed procedurally barred for failure to raise it at trial.

The United States argues that “there is a presumption that a treaty will be enforced through political and diplomatic channels, rather than through the courts.” The Court assumes an affirmative answer to the first question, because the second two fail.

The Vienna Convention does not set out specific remedies, and it would be implausible to assume that its signatories endorsed the exclusionary rule as a remedy since the rule is entirely unique to American jurisprudence. The Court rejects the idea that it maintains supervisory authority over state courts, and looks for authority in the Treaty itself. “Where a treaty does not provide a particular remedy, either expressly or implicitly, it is not for the federal courts to impose one on the States.” Sanchez-Llamas argues that the words “full effect” imply a judicial remedy. The Court reads the provision that Article 36 rights “shall be exercised in conformity with the laws and regulations of the receiving state” to mean that the domestic law governs the remedy, and …wait for it… “Under our domestic law, the exclusionary rule is not a remedy we apply lightly.” The only statutory violations that implicate the exclusionary rule do so by implicating important constitutional protections. The justification for some applications of the exclusionary rule are given: coerced confessions tend to be unreliable, excluding the fruits of unreasonable searches provides a strong deterrent. In the majority’s opinion the interests protected by the rights under the Convention are simultaneously protected by the Bill of Rights.

Regarding Bustillo; claims not raised on direct appeal are barred from collateral appeal unless the defendant can show “cause” and “prejudice.” Bustillo argues that the procedural default violates the “full effect” requirement of the Convention. Precedent dictates that, absent a clear and express statement to the contrary, procedural rules govern the implementation of the treaty. The Court dismisses Bustillo’s attempt to distinguish precedents on the basis that the ruling was unnecessary to the result, because “it is no answer to argue … that the holding in Breard was ‘unnecessary’ simply because the petitioner in that case had several ways to loose.”

Bustillo also claims that since Breard the ICJ has interpreted the Convention to bar the procedural default rule under the theory that such a rule violates the “full effect” requirement. The Court holds that those decisions are not binding because it is the supreme judicial body. Besides, the ICJ decisions have “no binding force except between the parties and in respect of that particular case,” meaning that the decisions are not even binding precedent as to the ICJ. The ICJ’s reasoning also fails to recognize that an adversarial system relies on the parties to advance facts and arguments, and to encourage parties to raise their claims promptly, as well as bring finality to judgments. The Court also rejects the idea that the failure to disclose Article 36 rights is tantamount to a Brady violation (failure to disclose exculpatory evidence) because in a Brady violation the defendant cannot know, as a factual matter that a violation has occurred, whereas in an Article 36 violation, what escapes the defendant is the legal significance.

Justice Ginsburg, concurring, distinguishes Miranda warnings and the rights at issue here. She also argues that a defendant could gain the full effect of Article 36 by using it to argue against the voluntariness of his statements to the police, and warns against the a ruling recognizing that the Convention’s bar on the procedural default rule only applies to the states because a later federal statute overrode that command.

Justice Breyer, dissenting, cites an ICJ decision noting that “as a matter of international law, breach of a treaty ordinarily ‘involves an obligation to make reparations in an adequate form” which should consist in an obligation to permit review and reconsideration by the United States courts in order to ascertain whether the violation “caused actual predjudice.” The means by which the United States my provide this remedy, which the ICJ believe to be implied in the treaty, were left to the United States. The ICJ also decided that the Convention only barred a procedural default rule in cases where “the authorities’ failure to inform the foreign national of his rights prevented him from timely raising his claim.”

Under Article VI cl. 2 “all Treaties made … under the Authority of the United States, shall be the supreme Law of the Land and the Judges in every State shall be bound thereby.” When a treaty is self executing it bears the force of a congressional act, and under the Head Money Cases, the question becomes whether the treaty obligations provide rights to individuals which are “of a nature to be enforced in a court of justice” (eg: not a matter for the military). The dissent is of the opinion that the rights set forth in the Convention do not differ in kind from those enforced by the judiciary on a regular basis, and that the rights are clearly those of individuals as opposed to those of the “member nations,” consular officers, contracting parties, etc. This conclusion, Justice Breyer argues, is consistent with the case law and the way that the United States treats other provisions in the Convention. The United States argues that Article 36 is concerned with the rights of states, based on a presumption that international treaties do not create judicially enforceable rights (a presumption the dissent does not find in the case law) and that the Executive interpretation of the treaty is entitled to great weight (which the dissent acknowledges, but finds insufficient).

Justice Breyer agrees with the ICJ as to the prohibition on the procedural default rule when the fault rests with the United States, and bolsters his reading with the observation that previous drafts only prohibited noncompliance (“not nullify”), rather than requiring that the treaty be given its “full effect.” The change was made, in part, on the basis of the observation that “rights could become seriously impaired without becoming inoperative.” Justice Breyer also articulates the reasons for respecting the ICJ’s decision in this case, and in general, despite the recognition that its decisions are not binding precedent.

The dissent also notes that the procedural default rule, as a federal statute, may have overridden incompatible rules in the Convention, but what is at issue here is a state practice. Justice Breyer also rejects the idea that Breard requires a clear statement rule.

As for suppression, where suppression would prove to be the only effective remedy Justice Breyer is willing to accept that it is required by the Convention. He takes issue with the suggestion that suppression is an entirely American creature, and points to the fundamental differences in legal systems to explain why suppression would be necessary here but not somewhere else.