Consular contacts

Analysis

foreigners
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.
 

foreigners
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.
 

foreigners
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.
 

women
foreigners
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. 

foreigners

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.

foreigners
minorities

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.

foreigners
disabilities

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.

foreigners
children

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.