Vienna Convention on Consular Relations (Paraguay v. United States of America)

On 3 April 1998, Paraguay introduced proceedings against the United States before the International Court of Justice and, at the same time, submitted a request for provisional measures. The proceedings relate directly to the trial of a Paraguayan national, Angel Francisco Breard, held in the United States. Mr. Breard had been arrested on 1 September 1992, and was convicted for murder and attempt of rape by a Court of the Commonwealth of Virginia on 24 June 1993. On 22 August 1993, the death penalty was imposed. The appeal of Mr. Breard failed. During the proceedings, the accused had never been informed of his right to consular assistance under Article 36, subparagraph 1(b), of the Vienna Convention on Consular Relations, and the Paraguayan consulate had not been notified of Mr. Breard's trial.

Paraguay expresses that it did not become aware of the case before 1996. Assisted by Paraguayan consular officers, Mr. Breard filed a petition to the Federal Court of First Instance for a writ of habeas corpus on 30 August 1996 on the basis of a violation of the Vienna Convention. His claim was rejected because of a municipal law doctrine of procedural default. According to this doctrine, Mr. Breard could not raise the argument of a violation of the Vienna Convention because he had not asserted his rights under that Convention in the prior proceedings. His appeal to the intermediate federal court failed for the same reason. A separate lawsuit by Paraguay also proved unsuccessful. Mr. Breard then filed a petition for a writ of certiorari to the US Supreme Court.

The United States never denied that they had in fact violated their obligations under the Vienna Convention. An official apology was made, shortcomings in current practice were acknowledged and measures were announced to ensure better future compliance, namely by means of the dissemination of pocket-size reference cards to law enforcement officers. Moreover, the Department of State declared that copies of a booklet "Consular Notification and Access" had been sent to all 50 states.

However, the parties disagree about the consequences arising from that violation.

Paraguay requests the Court to adjudge and declare that it is entitled to resitutio in integrum, that the proceedings against Mr. Breard are void, that a re-trial of the accused, as well as any kind of future proceedings, must be carried out in accordance with the obligations under the Vienna Convention and that the United States must provide a guarantee of non-repetition.

Furthermore, since the execution of Mr. Breard was scheduled by the Circuit Court of Arlington County, Virginia, for 14 April 1998, Paraguay requested that the Court grant provisional measures to ensure that Mr. Breard not be executed pending the proceedings.

The United States is of the opinion that Paraguay does not possess a valid legal claim. Its argument is twofold:
. it objects to the contention that a violation of Article 36 might ever lead to the nullity of a sentence and require a re-trial of an accused, and
. it argues that no prejudice has been caused to Mr. Breard, because notification and information would not have altered the outcome of the trial.

Mr. Breard had been living in the US since 1986 and spoke English well. He was defended by two experienced local attorneys and had contact with his family.

Paraguay's point is that consular advice might have persuaded him to plead guilty instead of taking the witness stand which, according to Paraguay, would have resulted in life imprisonment instead of the death penalty. Alternatively, he might have been persuaded to make use of the right not to incriminate himself. In the witness stand, he confessed to having committed the crime, arguing that a satanic curse placed on him by his former father-in-law had forced him to act as he did. In Paraguay's view, the accused confessed because of misconceptions about the American legal system. It argues that Mr. Breard believed his behavior would lead to mercy by the jury, which would have been the case in Paraguay; whereas, it effectively resulted in the death penalty in the US.

Question

Does a state have the right to try and convict a national of another state for an act committed within the jurisdiction of the former state? What are the proper proceedings for such a trial?

Decision

On 9 April 1998, the ICJ unanimously issued an order asking the United States to take "all measures at its disposal" to prevent the execution of Mr. Breard.

Reasoning

The Court, after having established that it has prima facie jurisdiction, based on Article I of the Optional Protocol to the Vienna Convention on Consular Relations concerning the compulsory settlement of disputes to which both the United States and Paraguay are parties, regards urgency and danger of irreparable harm as main prerequisites for the granting of provisional measures. Article I provides that disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the Court. In the case at hand, the relief sought by Paraguay was dependent on Mr. Breard´s execution being halted, and the Court was satisfied that there was a danger of irreparable harm to the alleged rights and that there was urgency given the execution immediately pending.

Prima facie jurisdiction is required because of two considerations: on the one hand, the function of interim protection is to provide an expeditious remedy; therefore it cannot be that disputes over jurisdiction have to be definitively decided. On the other hand, the fundamental principle of consent to ICJ proceedings must be respected. The Court therefore, before adopting provisional measures, examines whether there is a possibility of substantive jurisdiction, without any binding effect for the further proceedings. The jurisdiction was found to be prima facie. The Court ruled that there exists a dispute on whether restitutio in integrum is a remedy available under the Convention, and that this was sufficient to establish prima facie jurisdiction.

Authorities Cited

The Vienna Convention on Consular Relations; US Supreme Court decision of 13 April, Breard v. Greene.

Comments

I believe that the United States should have notified the Paraguayan Consulate that a Paraguayan national was being tried in their political system. Had this been done, they would probably have been able to try the national properly. Since the crime had been committed within their jurisdiction and there would have been proper advisement of the national.

The Paraguayan government should not have been trying for a retrial, since Mr. Breard did submit that he was guilty of the crime. They should have been proposed a mistrial, as the proper proceedings had not been executed for the trial at hand.