Article 36, Vienna Convention on Consular Relations - treaty interpretation and enforcement - International Court of Justice - fair trial - suppression of evidence

Garditz discusses a recent decision of the Federal Constitutional Court of Germany, with respect to consular relations, where the court held that a failure to provide consular information to foreign nationals pursuant to Article 36 of the Vienna Convention on Consular Relations (VCCR) violates the guarantee of a fair trial, as provided by the German Constitution (Grundgesetz). The result is in contrast to a US Supreme Court decision in Sanchez-Llamas v. Oregon, a strikingly similar case. While US courts have been regularly criticized for their lack of compliance with the VCCR, the Federal Constitutional Court of Germany presents a different approach to achieve compliance with international treaty law. As expected, the Court followed the International Court of Justice's position in the LaGrand and the Avena cases with respect to the interpretation of VCCR Article 36. Nonetheless, in considering the impact of those judgments for domestic criminal proceedings, it is opined that the Court's discussion was convoluted; it is one thing for Article 36 to be self-executing (which had already been established in German law) and quite another to determine whether a violation of Article 36 (1) should have a concrete impact on criminal proceedings, and, in particular, on the admissibility of evidence in court.