411.1 Vienna Consular Convention

Article 36 of the Vienna Consular Convention provides that the host government must notify the arrestee without delay of his or her right to communicate with the American consul. Consular officers should be familiar with the Vienna Convention and its provisions relating to arrest cases. .

411.2 Bilateral Consular Treaties

Many of our current bilateral consular treaties also require that the arresting authorities directly and promptly notify the consular officer of a foreign state of the arrest of a national of that state. The consular officer must be familiar with the details of bilateral consular treaties between the host government and the United States

411.3 Relations with Local Authorities

Practical considerations make it imperative that the consular officer be notified immediately whenever a United States citizen is arrested. For purposes of notification and access, the Department considers a citizen under arrest from the moment the citizen is deprived of his or her liberty by a foreign governmental agency or authority. In order to provide effective protection and assistance to arrested Americans, consular officers are expected to maintain relationships with local authorities and other sources which will secure their cooperation in providing immediate notification, no matter what the language of applicable treaties legally requires. Without such prompt notification of arrest, it is impossible to achieve the essential timely access to a detained American citizen. 412 Access

Experience has demonstrated that prompt personal access to the detained citizen assures both the arrestee and the host authorities of the serious interest of the U.S. Government in the case. Further, it enables the consular officer to provide the arrestee with a list of reputable lawyers or information concerning local legal aid before the arrestee selects a lawyer who may prove to be a charlatan. It provides an opportunity for the consular officer to explain the legal and judicial procedures of the host government and the detainee's rights under that government at a time when such information is most useful. Prompt personal access to the detainee is necessary to forestall physical abuse of the prisoner by the arresting and/or investigating authorities or to ascertain when such abuse has occurred.

If the Department and our posts abroad are to insist that host country arresting authorities notify an American Consul without delay following their arrest of an American citizen, it is incumbent upon the consular officer to visit the arrestee as soon as possible following receipt of notification. Otherwise the sincerity and credibility of the U.S. Government with respect to its concern for its arrested citizen's welfare and rights will surely be questioned, and obtaining the cooperation of host country officials on prisoner matters will be more difficult.

Upon receiving notification that an American citizen is being detained, it is absolutely essential that the post achieve timely access to the detainee through one of the following methods:

412.1 Personal Visit

Except under the most extraordinary circumstances, an officer must personally see and visit the arrestee as soon as possible, normally within 48 hours of receipt of notification. Should a personal visit prove impossible and one of the methods described below be employed, the post must explain to the Department the circumstances preventing the personal visit.

412.2 Telephone Contact

If an immediate personal visit by an officer is not possible, efforts must be made to get in touch with the detainee by telephone. Such contact does not obviate the consular officer's responsibility to follow up with a personal visit at the earliest possible opportunity, normally within a few days.

412.3 Visit by Volunteers

If an immediate personal visit by an officer is not possible, the post may wish to consider enlisting cooperation of American citizens resident in the area of the place of arrest to visit the detained American. Again, this does not obviate the consular officer's responsibility to follow up with a personal visit as soon as possible, normally within a few days.

412.4 Consular Agents

Pending a visit by a consular officer, a consular agent (if one is available) should visit the arrestee promptly. Posts that have consular agents assigned within their districts should make maximum use of them in protecting the legal and human rights of incarcerated Americans and assuring their welfare. As a guide to what consular agents may be expected to do in this regard, posts should consult the Consular Agents Handbook [not reproduced in this Digest].

413 Initial Visit

In the course of the initial visit to a United States citizen arrested abroad, the consular officer must endeavor to give the arrestee a realistic and positive understanding of our Government's interest in and responsibility for a citizen in this situation. While it is only fair to curb the prisoner's expectations of extraordinary intervention or miraculous remedies, the consular officer must emphasize the actions that can be taken on the arrestee's behalf. Consular protection is an inherent right of every citizen. This right is in no way abridged by evidence of guilt, by the nature of the alleged crime, or by the personal merit of the individual. Thus consular officers must avoid any display of disdain, self-righteousness or moral disapproval which might impair their relationship with the arrestee. The officer should accomplish several objectives during or as a result of the initial visit.

413.1 Verification of Citizenship and Identity

Before rendering any substantial service to an arrestee, the consular officer must ascertain that the individual is entitled to the protection of the United States Government by virtue of being one of the following:

a. A. U.S. citizen. In the majority of cases, possession of a passport satisfactorily establishes both the identity and the citizenship of the individual. In countries where citizens customarily travel without passports, however, or where the individual claims a passport has been lost or stolen, the consular officer will have to rely upon secondary documentary evidence or judgment based upon the results of conversation with the prisoner.

b. A national not a citizen of the United States, which includes natives of American Samoa. (The terms "citizen" and "national" are used interchangeably in these instructions.)

c. A native inhabitant of the Trust Terrritory of the Pacific Islands.

d. A "Third Country" national for whom the United States has formally accepted responsibilities as protecting power. In these cases, representation should initially be limited to providing emergency services, and the Department should be consulted for long-term services which the post may be expected to provide.

e. Dual nationals. Providing consular protection to dual nationals sometimes poses complex problems because of the conflicting laws and regulations of the United States and other countries. Clearly a dual national traveling in a third country on a U.S. passport is entitled to the full range of consular services provided to any American. On the other hand, a dual national traveling abroad on a passport of that person's other country of nationality may not be entitled to the protective services of the United States consul in a third country. In such a situation, however, the U.S. consul should show an interest in any difficulties that such a person may encounter and be as helpful as possible, should relatives inquire about the case. If the second country of nationality is providing protective services to a dual national, the U.S. consular officer should not become involved.

The most complex problems regarding provision of protective services to dual nationals arise when the holder of dual nationality experiences difficulties with the law in the non-U.S. country of nationality. It is a generally recognized rule, which may be regarded as a rule of international law, that when a person who is a dual national is residing in either of the countries of nationality, the person owes paramount allegiance to that country. It generally has the right to assert its claim without interference from the other. Thus, in the absence of agreements to the contrary between the United States and other nations, if a dual national encounters difficulties in the country of second nationality, the United States Government may be able to make representations on that person's behalf but, in view of the possession of the foreign nationality, those representations usually are not successful.

413.2 Determining Potentially Fraudulent or Dubious Claims to Citizenship

Consular officers should be alert to possible passport fraud.. In any case of dubious or unresolved citizenship, the consular officer may furnish provisional consular services, pending resolution of the question. Such provisional services could certainly include routine facilitative services, and might also include informal representation to preclude or terminate mistreatment, but would not ordinarily extend to formal representation to the host government.

413.3 List of Attorneys

The post's list of attorneys, maintained as required under 7 FAM 800, may be abridged in accordance with each post's experience concerning the types of arrest cases involving American citizens. Many of the lists prepared by posts are commendably extensive and comprehensive. In arrest cases, however, it is of little use to a prisoner to have a long list of attorneys and law firms handling only civil cases. Posts with extensive lists should extract from them information on attorneys and firms handling criminal cases and print an abbreviated list for arrestee use. Lawyers found to be dishonest, incompetent, or inattentive to their American clients' interests should be excluded from the list whenever such a determination is made by the post.

413.4 Providing Instructional Material on Judicial Procedures

Legal systems vary greatly, particularly outside Common Law areas. An American citizen arrested abroad often has an imperfect understanding of American criminal procedure and may have absolutely no understanding of the legal procedures of the country in which the citizen is detained. Thus it is essential that each mission (or where variations in local conditions warrant, each constituent post) prepare informational material for delivery to each arrested American regarding the judicial process the arrestee is likely to face. Posts should prepare an information packet covering initial arrest, remand procedure, trial procedure, appeal process, and penal conditions and rules. The purpose of this material is not to usurp the function of legal counsel or encourage a "do it yourself" approach. Rather, it serves the purpose of helping arrestees understand what is happening to them and provides a yardstick against which they can measure attorney performance. Such informational material should be updated regularly

413.5 Obtain Privacy Act Consent

413.6 Confiscation of Prisoner's Personal Property

In some countries it is the practice of arresting officials to confiscate the personal property (such as money, clothing, watches, rings, automobile, and passport) of newly arrested persons. Often no receipts are given for these items and, with no records, they may disappear. During the initial visit to an American arrestee the consular officer should ask the prisoner if any personal property,

including passport, was taken by the arresting authorities and, if so, whether a signed and dated receipt was given in exchange. If these procedures were not followed by the arresting authority, the consular officer should take immediate steps to determine the whereabouts of the confiscated items and to obtain a receipt acknowledging custody from the local authorities. Prompt action is necessary if the items are to be located and retrieved.

Under no circumstances should an officer assume responsibility for holding or storing personal property or money on behalf of an American citizen, whether a prisoner or at liberty (see 7 FAM 600 [not reproduced in this Digest]).

414 Condition of Prisoner and Environment

414.1 Abuse of Prisoners

In the first contact with a prisoner, whether in person or by phone, the consular officer should, if possible, determine from the prisoner if there has been any physical abuse or violation of rights. Whenever a prisoner alleges physical abuse, it is imperative that the prisoner be seen by an officer at the earliest possible opportunity.

a. Examination by an Officer

The officer should verify during the initial visit whether there are any marks or signs of abuse such as bruises, scratches, or cuts, bearing in mind, however, that many forms of physical abuse, including systematic torture, are calculated to leave no physical evidence. Torture by electric shock and various forms of "water treatment" are two of the more common forms of torture which normally do not leave marks. Where such methods are alleged to have been used, the personal interview of the prisoner is equally imperative. In all cases of allegations of abuse, it is essential that the officer exercise judgment on the basis of all evidence at hand, including assessment of the prisoner's credibility, in determining the probable veracity of the allegation.

b. Examination by Independent Physician In Cases of Abuse. The consular officer should arrange, if possible, to have the prisoner examined by a private medical doctor to determine the extent and probable cause of any injury. Emergency Medical/Dietary Assistance (EMDA) funds may be used for this examination, provided all the relevant criteria are met (see Section 450 [not reproduced in this Digest]).

c. Written Statements from Prisoners.

When a consular officer has good reason to believe that allegations of abuse made by a prisoner are true, he should encourage the prisoner to make a formal declaration under oath or a signed written statement regarding the abuse. Merely requesting such a declaration or statement may often prevent false or exaggerated allegations of abuse. The documents may be useful should the consular officer, with the permission of the prisoner, protest the maltreatment to host country authorities (see Section 415, Protests).

414.2 Conditions of Detention

Prison conditions vary widely, particularly from country to