Suppression of Evidence as a Remedy for Failure to Inform Under Article 36 of the Vienna Convention on Consular Relations? (Verwertungsverbot bei Verletzung der Pflicht zur Belehrung Nach Art. 36 WÜK?) (in German)

Abstract

The paper comments on a decision of the German Federal Constitutional Court of 8 July 2010 (BvR 2485/07), and suggests considering, in criminal procedures, the remedy of suppression of statements which an arrested foreign national made without having been informed by police officers of his right to consular notification and communication under Article 36 of the Vienna Convention of Consular Relations (VCCR).

In the recent decision, the German Federal Constitutional Court, firstly, reminded all German courts of their constitution-based obligation to take into account international law, including the decisions of the International Court of Justice. But, given the complexity of the interaction between international law and domestic law, the Constitutional Court will only check whether the lower courts have “manifestly received international law erroneously.”

Secondly, the Constitutional Court criticised the criminal courts for reacting to a violation of article 36 cl. 1 lit. b) VCCR during a criminal procedure only by reducing the sentence of the convicted. Third, the Court recommended that the criminal courts reconsider the possibility of a suppression of evidence.

The paper welcomes that suggestion. It briefly revisits the international case-law establishing that the VCCR grants individual rights, which must be rendered effective by the domestic authorities, and which have been considered by German courts as self-executory in the domestic legal order. The paper also mentions the case-law in various jurisdictions where courts have accepted the remedy of suppression of evidence. Others, notably the US Supreme Court, have rejected such a remedy.

The paper shows how the suppression of evidence can be fitted into German criminal procedure. The current German judge-made doctrine on exclusion of evidence basically allows for suppression of evidence only when, upon balance, fundamental rights of the accused have been seriously affected, and when this outweighs the countervailing public interest in effectively running the criminal procedure and in full fact finding.

It is submitted that this approach must be modified in cases with an international dimension, when foreign states’ interests or individual international rights of the accused are at stake. In such an internationalised constellation, these interests and rights must be specifically taken into account, and must be accorded high weight in the balancing process. Otherwise, the exclusion of evidence will de facto never happen in German criminal procedure, and the individual right of the accused under Article 36 VCCR will remain empty.

Note: Downloadable document is in German.

Keywords: Vienna Convention on Consular Relations, Suppression of Evidence, Criminal Procedure, Germany, Lagrand-Case, Avena-Case, Self-Executingness, Exclusionary Rules,Evidence in Criminal Proceedings