A right to information on consular assistance
A detained foreign national has a right to be informed without delay that they may receive consular assistance if they so choose. ‘Without delay’ means at the time the accused is deprived of their liberty, or at least before making his or her first statement to authorities. In practice, this means that the obligation will usually fall to police, however on reception at a prison or pre-trial facility, detaining authorities must ensure detainees are able to exercise this right if they have not already done so.
Where the country from which the detainee originates has no diplomatic or consular representation, the detainee must be allowed to communicate with alternate diplomatic officials that represent them. In cases where detainees are stateless or refugees, detaining authorities should facilitate contact with the diplomatic representative of the state that takes charge of their interest or the relevant national or international authority, for example, UNHCR.
Where a detainee holds dual or multiple nationalities but not including that for the state in which he or she is detained, authorities are obliged to promptly contact all relevant consulates as requested by the detainee. Where a detainee has dual or multiple nationalities including that of the state he or she is arrested in, it will depend on the practice of the state concerned as to whether the detainee is offered the right to contact the consulate(s) concerned.
If a detainee does not want Consular officials to be notified, that must generally be respected by the detaining authorities unless a bilateral treaty between the sending and receiving state is in force that requires consulates to be automatically notified by detaining authorities on detention of one of their nationals. There may be a number of reasons that detainees do not wish to speak with consular officials: for example, they do not want their families or their home government to know of their imprisonment, they may not have faith in the consular services, or they may not wish to draw attention to their situation within the prison environment.
Role of consular officials
Beyond the role of arranging legal representation for a detainee if required, the role of consular officials vis-à-vis their detained national is not defined in detail in international law, although sometimes bilateral treaties between states will set out functions, in which case, a detainee should be informed of these particular consulate functions or obligations.
The scope of the consular official’s functions will also depend on the need of the detainee and particular country context. Important functions consular officials may play include: explaining the judicial system and process, attending and observing court proceedings to ensure that the rights of their nationals are respected and to monitor for any discrimination they may be facing as a foreigner, facilitating interpretation and translation of key documents. They may assist in providing detainees with official documentation from their home country. In some instances they may also directly provide basic humanitarian assistance to detainees such as food and sanitary items where the provision of this by authorities is deemed inadequate. Consular officials may also be able to link the detainee up with expatriates communities living in the country of detention, and these communities may be able to provide support and humanitarian assistance.
In addition to detaining authorities, consular officials may play a role in linking detainee with relevant organizations, either in the host country or in the home country.
Where possible, detainees should be given the option to serve out their sentence in their country of origin, and the consular officials may play a role in facilitating detainee transfer.
Modalities for contact between detainees and consular officials
The modalities for communication between detainees and consular officials should generally be similar to that between detainees and lawyers. Detainees have a right to receive visits, make and receive telephone calls and send and receive correspondence from consular officials. Such contact may be subject to operational restrictions of the prison (for example, restricted to usual visiting hours for non-urgent matters) as long as it does not defeat the purpose of consular contact.
Whilst the international standards do not specifically state that communication between consular officials and detainees must be private, confidentiality is of great importance in enabling consular officials to appropriately carry out their role and should be respected in all but the most extenuating circumstances (for example, a pressing security concern that cannot be dealt with in a less restrictive way). In most cases, meetings should be out of earshot of other detainees and staff, telephone conversations should not be monitored and correspondence not be opened. Where monitoring does occur, both the consular official and detainee should be made aware of it.
Consular contacts for groups in a situation of vulnerability
Foreign women who are detained are in a situation of multiple vulnerability, due to their gender and also their status as a foreigner and swift consular contact is an important safeguard. They may be very isolated due to language or cultural barriers and are often at a high risk of physical and sexual abuse. A high proportion of foreign women that are detained in countries around the world are serving out long sentences for smuggling drugs and are often forced to do so in order to provide for their children. For these women, separation from children and uncertainty as to their wellbeing can cause great anxiety. Consular officials can also play an important role linking women detainee to family members in their country of origin.
LGBTI detainees often suffer extreme isolation and discrimination within the prison environment, and this is particularly compounded when they are detained in a foreign country. Furthermore, in some countries having a sexual orientation or gender identity different from mainstream is a criminal offence – some foreign LGBTI detainees may be in prison due only to this fact. Consular contact can be particularly important for LGBTI detainees in providing support.
Where detainees are from a minority in their country of origin they may suffer discrimination or even persecution at the hands of the state. In these cases, they may not want to meet with a representative of their consulate because of fear of discrimination or repercussion for themselves or family back home. This choice not to consult with a consular official must be respected by detaining authorities.
Foreign national prisoners that also have a disability are in a situation of multiple vulnerability, and consular officials may be able to play an important role to assist them. This could include facilitating translation and interpretation, helping ensure any necessary adapting equipment is available for them, as well as putting them in touch with family and support networks in their country of origin.
Where foreign children are detained they are in a situation of multiple vulnerability, and consular officials may be able to play an important role safeguarding their rights and interests. If the child is incapable of understanding the relevance or potential importance of being in contact with a consular official, the detaining authorities must – if in the circumstances, the best interest of the child warrants it – contact the consular official on behalf of the child. Consular officials may play a vital role in connecting the child with parents or family in their country of origin. In cases where foreign national pregnant woman gives birth in prison, consular officials can deliver official documentation for the country of origin such as identification cards.
Legal standards (10) Print
International Convention on the Rights of Migrants and their families
7) When a migrant worker or a member of his or her family is arrested or committed to prison or custody pending trial or is detained in any other manner:
a) The consular or diplomatic authorities of his or her State of origin or of a State representing the interests of that State shall, if he or she so requests, be informed without delay of his or her arrest or detention and of the reasons therefor;
b) The person concerned shall have the right to communicate with the said authorities. Any communication by the person concerned to the said authorities shall be forwarded without delay, and he or she shall also have the right to receive communications sent by the said authorities without delay;
c) The person concerned shall be informed without delay of this right and of rights deriving from relevant treaties, if any, applicable between the States concerned, to correspond and to meet with representatives of the said authorities and to make arrangements with them for his or her legal representation.
7. Migrant workers and members of their families who are subjected to any form of detention or imprisonment in accordance with the law in force in the State of employment or in the State of transit shall enjoy the same rights as nationals of those States who are in the same situation.
Migrant workers and members of their families shall have the right to have recourse to the protection and assistance of the consular or diplomatic authorities of their State of origin or of a State representing the interests of that State whenever the rights recognized in the present Convention are impaired. In particular, in case of expulsion, the person concerned shall be informed of this right without delay and the authorities of the expelling State shall facilitate the exercise of such right.
Vienna Convention on Consular Relations
Article 36 - Communication and contact with nationals of the sending state
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 arrested, in prison, custody or détention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;
c. consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.
2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subjectto the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded Under this Article are intended.
United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)
1. Prisoners who are foreign nationals shall be allowed reasonable facilities to communicate with the diplomatic and consular representatives of the State to which they belong.
2. Prisoners who are nationals of States without diplomatic or consular representation in the country and refugees or stateless persons shall be allowed similar facilities to communicate with the diplomatic representative of the State which takes charge of their interests or any national or international authority whose task it is to protect such persons.
Body of principles for the protection of all persons under any form of détention or imprisonment
2. If a detained or imprisoned person is a foreigner, he shall also be promptly informed of his right to communicate by appropriate means with a consular post or the diplomatic mission of the State of which he is a national or which is otherwise entitled to receive such communication in accordance with international law or with the representative of the competent international organization, if he is a refugee or is otherwise under the protection of an intergovernmental organization.
UN Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (Bangkok Rules)
1. Adequate attention shall be paid to the admission procedures for women and children, due to their particular vulnerability at this time. Newly arrived women prisoners shall be provided with facilities to contact their relaives; access to legal advice; information about prison rules and regulations, the prison regime and where to seek help when in need in a language that they understand; and, in the case of foreign nationals, access to consular representatives as well.
2. The removal of the child from prison shall be undertaken with sensitivity, only when alternative care arrangements for the child have been identified and, in the case of foreign - national prisoners, in consultation with consular officials.
United Nations Rules for the Protection of Juveniles Deprived of their Liberty
Notification of illness, injury and death
56. […] Notification should also be given to the consular authorities of the State of which a foreign juvenile is a citizen.
European prison rules
Prisoners who are foreign nationals shall be informed, without delay, of their right to request contact and be allowed reasonable facilities to communicate with the diplomatic or consular representative of their state.
Prisoners who are nationals of states without diplomatic or consular representation in the country, and refugees or stateless persons, shall be allowed similar facilities to communicate with the diplomatic representative of the state which takes charge of their interests or the national or international authority whose task it is to serve the interests of such persons.
In the interests of foreign nationals in prison who may have special needs, prison authorities shall co-operate fully with diplomatic or consular officials representing prisoners.
Principles and Best Practices on the Protection of Persons
Deprived of Liberty in the America
Principle V – due process of law
Persons deprived of liberty in a Member State of the Organization of American States of which they are not nationals, shall be informed, without delay, and in any case before they make any statement to the competent authorities, of their right to consular or diplomatic assistance, and to request that consular or diplomatic authorities be notified of their deprivation of liberty immediately. Furthermore, they shall have the right to communicate with their diplomatic and consular authorities freely and in private.
Extract from the 19th General Report on the CPT's activities [CPT/Inf (2009) 27]
« [...] international treaties recognise the right of a detained irregular migrant to ask for consular assistance. However, as not all irregular migrants may wish to contact their national authorities, the exercise of this right must be left to the person concerned ».
Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa
i. Refugees shall be informed of their right to contact consular officials and relevant international organisations, such as the United Nations High Commissioner for Refugees, and be provided with the means of contacting those authorities without delay. Detaining authorities must provide unhindered access to the consular official or staff and the staff of the relevant international organisations, and provide the detainee with facilities to meet with such persons. However, detaining authorities shall only contact or provide access to the consular authority or relevant international organisations about the arrest and detention of a person who is a refugee if the person so requests.
ii. All decisions and actions in relation to refugees below the age of 18, whether accompanied or unaccompanied, shall be consistent with the principle of the best interests of the child, and shall accord with the special protections afforded to children in section 31 of these Guidelines.
Non-citizens shall be informed of their right to contact consular officials and relevant international organisations, and be provided with the means to contact the relevant authority without delay. Detaining authorities must provide unhindered access to the consular official or staff and the staff of the relevant international organisations, and provide the detainee with facilities to meet with such persons.
Questions for monitors (6) Print
Are detainees informed on their rights to see a consular representative?
What are the modalities for foreign nationals in prison to contact their consular officials? If there are none in place, why not?
What are the options for foreign detainees without consular representation in the country where they are detained?
What are the conditions for visits from consular officials like? Are detainees able to meet in private with consular officials?
What arrangements are in place if consular contact cannot be established?
Do detaining authorities pay particular attention to ensuring foreign detainees who have multiple vulnerabilities (for example, due to being a woman, child, identifying as LGBTI, having a disability or being a member of minority group in their country of origin) are able to swiftly access consular officials if they so choose?