7 FAM 420
NOTIFICATION AND ACCESS
(CT:CON-976; 04-06-2023)
(Office of Origin: CA/OCS)
7 FAM 421 NOTIFICATION
(CT:CON-972; 03-23-2023)
In order for you to perform your consular protective functions in an efficient and timely manner, it is essential that you receive prompt notification from local authorities whenever a U.S. citizen or national is arrested. Local authorities are not always required to inform you. To obtain early access to the prisoner you should take proactive steps to establish good relationships with host country law enforcement contacts.
7 FAM 421.1 Authorities
(CT:CON-972; 03-23-2023)
As described in detail in the Consular Notification and Access Manual, your authorities as a consular officer in this area stem from the obligations incurred by all host country governments under international treaties and customary international law.
7 FAM 421.1-1 Notification Under the Vienna Convention on Consular Relations (VCCR)
(CT:CON-976; 04-06-2023)
Article 36 of the VCCR (see 7 FAM 412) provides that the host government must notify a foreign national prisoner without delay of the prisoner’s option to communicate with their consular officials. The host government must notify the consular officer without delay if the prisoner so requests. The vast majority of countries are parties to the VCCR. (See the Consular Notification and Access Manual for a current list of parties to the VCCR (at Table C) and the language of Article 36.) The full text of the VCCR is available on the CA Web Intranet Guidance and Reference.
7 FAM 421.1-2 Notification under Bilateral Consular Conventions
(CT:CON-972; 03-23-2023)
a. Some of our bilateral consular agreements require that consular notification be made upon the request of the prisoner in terms similar to those in Article 36 of the VCCR. See Table B of the Consular Notification and Access Manual for a list of these. For any questions, reach out to Office of the Assistant Legal Adviser for Consular Affairs, General Consular Issues (L/CA/POG/GC).
b. Other bilateral agreements require “mandatory notification;” i.e., the arresting authorities must promptly notify the consular officer of a foreign state of the arrest of a national of that state, whether or not the prisoner wishes such notification to be given.
(1) In some versions, consular notification must be given “immediately” or “without delay.”
(2) Sometimes notification must be provided not later than a specified number of days.
(3) Consult the Consular Notification and Access Manual for a list of mandatory notification countries as well as the time limits required in each.
7 FAM 421.1-3 Notification under Customary International Law
(CT:CON-972; 03-23-2023)
While consular relations are now largely governed by the VCCR and bilateral agreements discussed above, customary international law forms the basis for consular notification and access requirements for the countries not yet party to the VCCR or any bilateral agreement with a provision on consular notification and access. Consular notification and access upon request, as set forth in VCCR Article 36, is a universally accepted, basic practice that should be followed even for nationals of countries not party to the VCCR or other applicable bilateral agreements. Thus, in all cases not covered by a mandatory notification agreement, the minimum requirements are to inform the prisoner that their consular officers may be notified upon request; to notify these officers without delay if the national so requests; and to permit the consular officers to provide consular assistance if they wish to do so.
7 FAM 421.2 Ensuring Prompt Notification
(CT:CON-972; 03-23-2023)
Although the legal responsibility to give consular notification may rest with the arresting authorities, as a practical matter, you should take steps to create a working atmosphere conducive to prompt notifications. Your actions could include the steps outlined below.
7 FAM 421.2-1 Developing Relationships
(CT:CON-972; 03-23-2023)
a. Know which local officials would normally be aware first of the arrest of a U.S. citizen or national (chiefs of police precincts, prison or jail wardens, public defenders, etc.).
b. Cultivate strong working relationships with these individuals and institutions through regular contact, routine scheduled meetings, inclusion in representational events, etc.
c. Commend particularly prompt notifications and extra effort in unusual cases with letters to supervisors, etc.
d. Explore with CA, other Department bureaus, and USG agency representatives at post opportunities to send your contacts to relevant training programs.
|
FYI: Public Diplomacy, INL, PRM, and other agencies often conduct International Visitor or "capacity building" programs that have law enforcement or judicial components. Many, but not all, of these programs take place in the United States. See 10 FAM 216. |
7 FAM 421.2-2 Educating
(CT:CON-972; 03-23-2023)
a. Ensure that arresting officials are aware of their responsibilities under the VCCR, applicable bilateral treaties, and/or customary international law. Distribute copies of the appropriate information as needed.
b. Share the Department’s Consular Notification and Access Manual with these individuals as appropriate and encourage them to adapt their operations to promote adherence to the relevant consular access and notification obligations. The manual provides detailed guidance to U.S. federal, state, and local law enforcement on their consular notification and access obligations, and on specific scenarios that arise most frequently in practice. Much of its guidance is readily adaptable to the operations of law enforcement agencies in other countries.
c. Clarify that, for purposes of notification, the Department considers a U.S. citizen or national “under arrest” promptly after they are deprived of liberty by a foreign governmental agency or authority and is not free to leave.
d. Explain that, in those cases where the prisoner claims to be a U.S. citizen or national, but has no documentation, you prefer to be notified immediately and given the opportunity to determine citizenship after the fact.
e. Ask that you be notified of the arrest automatically, even in countries where there is no bilateral treaty mandating notification even absent the prisoner’s request.
f. Ask that you be notified even in those cases in which the prisoner initially states they do not wish to see or speak with a consular officer. Explain that you may well receive inquiries from family or friends, and that the prisoner may change their position after a period of incarceration.
g. Explain that under customary international law and the VCCR, you must be notified upon the prisoner’s request even in those countries where there is no bilateral agreement mandating notification.
7 FAM 421.2-3 Responding To Complaints Regarding Reciprocal Notification
(CT:CON-972; 03-23-2023)
Occasionally, a host government official may claim that U.S. authorities do not promptly notify that country’s consular representatives of the arrest of one of their nationals. You can best deal with this claim by urging the host government to report such instances to the authorities who deal with consular notification and access at the Department (CA/P) if it has not done so already, and by pointing out:
(1) Even where this might be true, it does not exempt the host government from its treaty and customary international law obligations. Two wrongs do not make a right. We should all work toward improved compliance with consular notification obligations.
(2) The diverse makeup of the U.S. population can make it difficult to identify persons as foreign nationals unless they claim such nationality or have appropriate documentation.
(3) The size and composition of U.S. law enforcement (e.g., local, county, State, Federal) make it difficult to ensure that every arresting official understands the obligation to notify foreign consular officers.
(4) The Department of State (CA/P) conducts an ongoing concentrated educational program in an effort to remedy this situation, including:
(a) Publishing the Consular Notification and Access Manual, which instructs Federal, State, and local law enforcement officials in the U.S. on their responsibilities and procedures regarding consular notification and access.
(b) Conducting seminars and appearing at various law enforcement meetings, conventions and similar gatherings in order to continue educating the law enforcement community in the United States of its obligations.
(c) Providing posters with appropriate instructions for display in jails, police stations and similar detention facilities in the United States.
(d) Providing specific guidance to individual questions posed by law enforcement officials in the United States.
(e) Contacting responsible law enforcement officials in the United States when the governmental authorities of other countries allege that consular notification requirements were not observed in specific cases involving their nationals, and working with such officials to ascertain whether notification was or was not given, and to discuss ways to prevent violations from occurring in the future.
7 FAM 421.2-4 Establishing Efficient Communications
(CT:CON-972; 03-23-2023)
Make certain host government authorities can notify a consular officer quickly and easily, including after business hours. Local authorities should have easy access to consular officers during the workday and to the duty officer contact after hours.
7 FAM 422 Access
(CT:CON-972; 03-23-2023)
Consular officers must make every effort to gain prompt personal access to an arrested U.S. citizen or national for a number of reasons:
(1) Experience demonstrates that requesting prompt, personal access to the U.S. citizen or national assures both the prisoner and the host authorities of the serious interest of the U.S. Government in the case.
(2) Anything less than your full efforts to obtain prompt access undermines our insistence that host country arresting authorities notify a U.S. consular officer without delay following the arrest.
(3) Experience shows that abuse of a prisoner is most likely during the early arrest and pre-trial detention stages. Your prompt access to the detainee can often forestall physical abuse of the prisoner by the arresting and/or investigating authorities.
(4) In instances where abuse has, or is alleged to have, already occurred, your prompt access to the prisoner permits possible visible verification and puts you in the best position to demand medical attention and/or verification, as well as demand a prompt investigation by appropriate authorities.
(5) You can provide the prisoner with a list of lawyers or information concerning local legal aid.
(6) You can provide CA's standard Guide for U.S. Citizens Arrested Abroad (see 7 FAM 400 Appendix B), which describes types of assistance you may provide while the prisoner is in detention.
7 FAM 422.1 First Contact
(CT:CON-972; 03-23-2023)
When you are notified that a U.S. citizen or national is being detained, it is absolutely essential that you achieve timely access to the detainee through one of the following methods outlined in 7 FAM 422.2-2 through 7 FAM 422.1-4.
7 FAM 422.1-1 Personal Visit
(CT:CON-972; 03-23-2023)
As consular officer, you are to visit the prisoner as soon as possible following receipt of consular notification or information about the arrest from another source, such as the prisoner’s family or the media.
7 FAM 422.1-2 Telephone Contact
(CT:CON-972; 03-23-2023)
If a personal visit by an officer within 24 hours is not possible, you should contact the detainee by telephone. You should ask the detaining authorities to permit a private conversation. (In some countries the authorities are required to allow private conversations; see Consular Notification and Access Manual, p. 33, for the list.) Such contact does not eliminate your responsibility to follow up with a personal visit at the earliest possible opportunity, normally within a few days.
7 FAM 422.1-3 Visit By A Consular Agent
(CT:CON-972; 03-23-2023)
a. If a consular officer cannot do so, a Consular Agent should visit the prisoner 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 U.S. citizens or nationals and assuring their welfare. As a guide to what consular agents may be expected to do in such instances, posts should consult the Consular Agents’ Handbook.
b. The Department will consider a personal visit by a Consular Agent as also meeting the “Initial Visit” requirements in 7 FAM 423 provided:
(1) There are no apparent special problems or issues, such as alleged or apparent mistreatment, health, wrongful detention, prisoner over the age of 65 or under 18, etc. that would make an immediate follow-up visit by a consular officer advisable.
(2) The Consular Agent has sufficient training and experience to perform the Initial Visit functions outlined in 7 FAM 423 below.
(3) The Consular Agent immediately forwards the necessary information to the post to permit entry of the case into ACS and sending the reporting telegram.
7 FAM 422.1-4 Visit by Citizen Liaison Volunteers
(CT:CON-972; 03-23-2023)
If an immediate personal visit by an officer or Consular Agent is not possible, you may consider enlisting cooperation of U.S. Citizen Liaison Volunteers residing in the area of the place of arrest to visit the detained U.S. citizen or national (see 7 FAM 077).
|
Note: Using a Citizen Liaison Volunteer is an option of last resort. It should be used sparingly and, if time permits, in coordination with CA/OCS/ACS. In addition, this does not eliminate the responsibility to follow up with a personal consular visit as soon as possible, normally within a few days. |
7 FAM 423 INITIAL VISIT
(CT:CON-972; 03-23-2023)
Your first consular visit to the prisoner, which in most cases is the first contact outlined in 7 FAM 422.1 above, is designed to accomplish several goals, including:
7 FAM 423.1 Verification of Citizenship and Identity
(CT:CON-972; 03-23-2023)
Before rendering any substantial service to a prisoner, you must determine that the individual is a U.S. citizen or national or otherwise eligible for services provided by the U.S. Government. For more details, see 7 FAM 416 on Citizenship and Dual Nationality.
7 FAM 423.2 Detecting Apparent or Alleged Abuse
(CT:CON-972; 03-23-2023)
This is often your best opportunity to question the prisoner about their treatment by authorities, examine them closely for signs of abuse, and hear any statements that they wish to make on the matter. For further information, see 7 FAM 425.
7 FAM 423.3 Explaining Your Role
(CT:CON-972; 03-23-2023)
Inform the prisoner of the assistance that consular officials provide to a U.S. citizen or national in this situation.
(1) It is useful at this point to make clear to the prisoner that the host country may have a judicial system that is markedly different from the United States' system that they may be familiar with.
(2) Explain that a U.S. citizen or national is eligible to receive consular assistance, regardless of evidence of guilt, the nature of the alleged crime, or the status of the citizen.
(3) While it is only fair to curb the prisoner’s expectations that consular assistance will result in extraordinary intervention or miraculous remedies, you can and should emphasize the actions that can be taken to assist the prisoner.
(4) Avoid any display of disdain, self-righteousness, or moral disapproval that might impair the relationship with the prisoner.
7 FAM 423.4 Delivering Attorneys List
(CT:CON-972; 03-23-2023)
Provide the prisoner with post's current list of local attorneys and explain you cannot recommend an attorney. You may point out that the list normally specifies which attorney speaks English (if applicable), and which attorneys either have past experience representing U.S. clients or have indicated a willingness to defend a U.S. citizen or national accused of the same or similar crimes. See 7 FAM 990.
7 FAM 423.5 Country-Specific Information
(CT:CON-976; 04-06-2023)
Refer prisoners to their attorneys for information on the laws and legal system of the host country. You may leave CA/OCS' country-specific prisoner handout (see CAWeb, Arrests and Prisoners (state.sbu), Template Prisoner Handout describing the assistance a consular officer may provide to U.S. citizens while they are in detention.
7 FAM 423.6 Obtaining Privacy Act Written Consent
(CT:CON-976; 04-06-2023)
a. Because U.S. citizens or nationals or LPRs arrested abroad usually have family or friends who will inquire about the prisoner, you should offer the opportunity for the prisoner to give prior written consent to disclosure of information under the Privacy Act, using Form DS-5505. See 7 FAM 062 for other methods of clear written consent that are acceptable. See 7 FAM 060 for more information about the Privacy Act and 7 FAM 064 for the routine use exception that permits the government to share a prisoner's information without their written consent.
b. Advise the prisoner you can contact their next of kin, or other family or friends should the prisoner so wish. Often the prisoner may initially not wish to notify anyone, usually hoping for an early release. In this case, encourage them to provide the contact information anyway, so you have it available.
c. A LGBTQI+ partner of the prisoner who was in a civil union or similar arrangement recognized by a U.S. jurisdiction will be treated the same as family for purposes of this FAM section.
7 FAM 423.7 Protecting Prisoner's Personal Property
(CT:CON-972; 03-23-2023)
In most countries, it is the practice of arresting officials to confiscate the personal property (such as money, clothing, watches, rings, computers, automobiles) of newly arrested persons. Often no receipts are given for these items, and, with no records, the items may disappear.
a. During the initial visit to a U.S. citizen or national prisoner, you should ask the prisoner if the arresting authorities took any personal property, including a passport, and, if so, whether a signed and dated receipt was given in exchange.
b. If the arresting authority did not follow these procedures, you should take immediate steps to determine the whereabouts of the confiscated items and obtain a receipt acknowledging custody from the local authorities. Prompt action is necessary if the items are to be located and retrieved.
c. You should not assume responsibility for holding or storing personal property or money on behalf of the prisoner (see 7 FAM 600).
|
NOTE: A U.S. passport is the property of the U.S. Government, not the bearer. If you have reason to believe the confiscated passport may disappear or be misused, you may request that local authorities turn it over to you for safekeeping. |
7 FAM 423.8 Providing Minimal Personal Comfort Items
(CT:CON-972; 03-23-2023)
a. If arresting authorities do not normally provide to the prisoner the kinds of items described in 7 FAM 415.5, you should provide them.
b. If the prisoner is in a local jail or other temporary holding facility that does not provide food for prisoners, provide the type of dietary supplement authorized under EMDA. (See 7 FAM 440.)
7 FAM 423.9 Photographing The Prisoner
(CT:CON-976; 04-06-2023)
a. Although not a requirement, the Department strongly recommends taking a few photos of the prisoner, as long as the host country authorities permit the taking of photos and the prisoner consents. These photos often prove useful for a number of reasons:
(1) They may serve as evidence in validating and protesting any allegations of physical abuse.
(2) They may help in identification and citizenship verification when there is reason to suspect the prisoner is using a false identity.
(3) They can provide some reassurance to family members regarding the prisoner’s health and welfare.
b. Generally, one full-length and one passport-style close-up photograph is sufficient.
c. If there are signs of abuse, or injuries sustained during the actual arrest, also photograph any bruises, cuts, abrasions etc. closely and carefully.
d. Use a digital camera, since this generally permits rapid electronic transmission to the Department and family members and facilitates search of the Department’s digitized photo database if applicable.
7 FAM 423.10 Obtaining Information and Signatures
(CT:CON-972; 03-23-2023)
You should have the prisoner complete and sign the DS-5505 (Privacy Act written consent) and a Power of Attorney (to allow family or representatives in the United States to manage the prisoner's affairs) and other forms depending on the circumstances, including the prison's distance from post. See also 7 FAM 440, Emergency Medical and Dietary Assistance Programs for Incarcerated Citizens and Nationals.
7 FAM 423.11 Obligation of Host Government to Allow Visit
(CT:CON-972; 03-23-2023)
Even where a foreign national prisoner has not requested a consular visit, the prison authorities must give you access to the prisoner upon request and permit you to communicate with them, and to arrange for legal representation. If the prisoner does not want your assistance, you should insist to the prison authorities that they allow you the opportunity to confirm this fact directly through a face-to-face visit.
7 FAM 424 DOCUMENTING AN ARREST
(CT:CON-972; 03-23-2023)
It is imperative that you complete prompt and comprehensive case files in the American Citizen Services (ACS) Plus system on the arrest and detention of any U.S. citizen or national that involves any one of the following factors:
(1) Arrest of a U.S. citizen or national;
(2) Physical abuse or abuse of human rights; or
(3) Circumstances that in your judgment involve special public relations or human rights considerations, including wrongful detentions (see 7 FAM 1824.6), or
(4) Arrest of U.S. citizens or nationals over the age of 65 (see 7 FAM 479.2), Elderly Prisoners).
(5) Arrest of U.S. citizens or nationals under the age of 18 (see 7 FAM 479.1).
7 FAM 424.1 Timing
(CT:CON-972; 03-23-2023)
a. You must notify the Department within 24 hours of when you received notification of an arrest, even if available information is incomplete. You can submit the initial report of the detention by e-mail but you must also enterit in the ACS Plus system. You must submit a follow-up report in the ACS Plus system to supply missing data. Prompt notification to the Department is absolutely necessary because:
(1) Families and friends of the prisoner and Members of Congress usually call the Department for information and assistance as soon as they receive word of an arrest. If the Department does not have this information, especially if the inquiry comes several days after an arrest, inquirers receive the impression that we do not care.
(2) It is clearly preferable that the family learns of an arrest from the consular officer or the Department, rather than from the news media.
(3) Inquiries about arrests on which the Department has no information, especially if received several days after the arrest, are a source of embarrassment and can reflect badly on the Department and its overseas posts.
b. See 7 FAM 479 for specific reporting requirements for arrests of juveniles and elderly U.S. citizens or nationals.
7 FAM 424.2 Follow-Up
(CT:CON-976; 04-06-2023)
a. Posts should keep the Department (CA/OCS/ACS) advised of all new developments in a case and should make immediate updates, including thorough case notes, in the ACS Plus system:
(1) Any change in any item of the initial arrest report.
(2) Whenever a consular visit occurs.
(3) When you learn that a prisoner has been sentenced or released.
b. You should report fines in both local currency and U.S. dollars.
c. You should include date of release and conditions (provisional, unconditional, completion of sentence, and any other relevant data) when reporting about a prisoner's release.
d. When submitting follow-up reports, posts may use an abbreviated format of the initial arrest report by referring to the pertinent item number and reporting the change.
7 FAM 425 Abuse And Maltreatment
(CT:CON-972; 03-23-2023)
Abuse is an unfortunate reality that can occur even in the most advanced police and penal systems for any number of reasons, including:
(1) Authorized or unauthorized and inappropriate punishment for resisting arrest;
(2) Attempts to extract a confession or admission of guilt through torture;
(3) An authorized or unauthorized process of “softening up” prisoners to render them more controllable during incarceration;
(4) Reactions to a perceived display of improper attitude or disrespect on the part of the prisoner;
(5) Gratuitous acts by detention authorities with sadistic tendencies or a propensity towards violence;
(6) A reaction to cultural or language differences and misunderstandings;
(7) Xenophobia, racism, prejudice, LGBTQI+-related issues etc.
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NOTE: Regardless of the reason, or lack of reason, it is the Department’s position that acts of abuse against U.S. citizen or national detainees are intolerable, and require prompt and appropriate action by the consular officer and the post. |
7 FAM 425.1 Identifying Abuse
(CT:CON-972; 03-23-2023)
Abuse, alleged, potential, or actual, might come to your attention in a number of ways:
(1) Allegations by the Prisoner: In your first contact with a prisoner, whether in person or by phone, you should try to determine from the prisoner if there has been any physical abuse or other types of abuse.
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NOTE: Whenever a prisoner alleges physical abuse, and the first contact was not by a personal consular visit, a consular officer must see the prisoner at the earliest possible opportunity. |
(2) Physical Evidence: You should verify during the initial visit and any follow-up visits whether there are any marks or signs of abuse such as bruises, scratches, cuts, marks, bandages, etc., and take note of these. Even if the prisoner does not raise any allegations of abuse, you should question the prisoner, preferably in private, about the reasons for any wounds or marks you notice.
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FYI: You should also bear in mind that many forms of physical abuse, including psychotropic drugs and 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 methods that normally do not leave marks. |
(3) Statements by other prisoners: Other prisoners, particularly other U.S. citizen or national prisoners with whom you have developed a dialogue, may approach you and allege abuse of a U.S. citizen or national prisoner.
(4) Preemptory statements by detaining officials: At times, a guard, warden, or other official might offer the unsolicited comment that a certain prisoner “hurt themselves,” ”fell,” or was “attacked by other prisoners.” These comments may later prove to be an attempt to “explain away” abuse of the prisoner by detaining authorities.
7 FAM 425.2 Verify or Substantiate the Abuse
7 FAM 425.2-1 Obtain a Written Statement
(CT:CON-972; 03-23-2023)
Encourage the prisoner to make a formal declaration under oath or sign a written statement to document 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 protest the maltreatment to host country authorities. The statement or declaration should include:
(1) When and where it occurred;
(2) A detailed description of the abuse;
(3) Identities of participants, if known;
(4) Potential witnesses (other prisoners, officials present but not participating, etc.); and
(5) Any residual effects, such as pain, nausea, etc.
7 FAM 425.2-2 Arrange a Medical Examination
(CT:CON-972; 03-23-2023)
If possible, 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 7 FAM 443). Consider requesting assistance from the Regional Medical Officer (RMO) or embassy physician or nurse practitioner when you can't get a private doctor. As a last resort, request examination by the prison doctor. Approval by CA and Medical Services (MED) must be obtained before the RMO, Regional Psychiatrist (RMO/P), or Foreign Service Health Practitioner (FSHP) may examine or observe a U.S. citizen or national prisoner. Many host countries will not grant such requests and are not required to do so. See also 16 FAM 112e. CA/OCS/ACS will coordinate clearance with MED.
7 FAM 425.2-3 Evaluate Unsubstantiated Allegations
(CT:CON-976; 04-06-2023)
Occasionally, a prisoner may allege abuse when none has occurred, usually from the notion that this may expedite their release or get them transferred to a more hospitable environment such as a prison clinic or hospital. While any allegation of abuse must be taken seriously, it is essential that you exercise judgment on the basis of all evidence at hand, including:
(1) Your own in-depth interview of the prisoner;
(2) The general likelihood of abuse given your knowledge of the penal system and the arresting authorities;
(3) Your assessment of the prisoner’s credibility based on past experience (generally useful only with longer-term prisoners); and
(4) Presence or absence of any physical or other indicators.
7 FAM 425.3 Maltreatment
(CT:CON-379; 06-09-2011)
Although the term “maltreatment” is somewhat interchangeable with “abuse,” in this context it refers to an ongoing detrimental condition of incarceration, as opposed to a specific act. Examples include:
(1) Diet that does not meet subsistence levels;
(2) Inadequate shelter or heat;
(3) Inadequate clothing, or the lack of opportunity to keep clothing reasonably clean;
(4) Improper confiscation or theft of a prisoner’s personal property;
(5) Denial of, or inadequate, medical attention;
(6) Lack of minimal bedding;
(7) Gross overcrowding of facilities or individual cells; and
(8) Excessively lengthy pre-trial detention.
7 FAM 425.4 Consular Actions
(CT:CON-976; 04-06-2023)
Prison conditions vary widely, particularly from country to country, but also often within a country. You should be alert to general conditions of incarceration and monitor ongoing cases for possible maltreatment. Your activities in this area should include:
(1) Determine in advance jail or prison conditions at the facilities used for U.S. citizen or national prisoners.
(2) Have a working knowledge of the level of medical care offered prisoners in general, including any substance abuse rehabilitation or treatment.
(3) Identify those facilities you believe would be best suited for U.S. citizen or national prisoners. This may prove helpful if at some point you have input into the host government’s placement of a specific prisoner.
(4) During your initial visit to a U.S. citizen or national prisoner, observe the physical conditions under which the prisoner is being held. If the conditions do not meet generally accepted international standards:
(a) Attempt to obtain improvement through direct intervention with the responsible prison authorities.
(b) If this does not achieve results, consider formal protests at the local, state, or national level. (See 7 FAM 426.)
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NOTE: For a further discussion of prison conditions, see Section 7 FAM 460 Prolonged Imprisonment. |
7 FAM 426 Protests
7 FAM 426.1 Purpose
(CT:CON-972; 03-23-2023)
a. Prior Department approval is generally required before a post takes action to protest lack of consular access and notification; protest mistreatment of a prisoner, or any other host-country action based on treaty provisions or international law. L/CA will coordinate clearance within the Office of the Legal Adviser, as appropriate. CA/OCS/ACS will coordinate clearance with the regional bureau.
b. If the legal and human rights of U.S. citizens and nationals arrested abroad are to be adequately protected, we must be prepared to protest substantiated violations of those rights. The purposes of such protests include:
(1) Protecting U.S. citizen or national prisoners against further abuse or violation of their rights;
(2) Impressing on the host government that the U.S. Government is seriously concerned about the welfare of its citizens and nationals and will not condone or tolerate violation of their rights;
(3) Protecting future U.S. citizen or national detainees against similar maltreatment; and
(4) Improving the general level of treatment of U.S. citizens and nationals arrested and detained in foreign countries.
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NOTE: Experience demonstrates that a well-conceived and executed system of protests can often achieve these objectives in many countries. Failure to protest when the situation warrants only tends to perpetuate abuse. |
7 FAM 426.2 Actions Meriting Protest
(CT:CON-972; 03-23-2023)
The following are the most frequent grounds for protests:
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NOTE: This list is not intended to be all-encompassing. If you have an unusual situation, or are not sure whether a specific set of circumstances warrant a protest, or if there is a difference of opinion within the mission whether to protest, you are strongly encouraged to contact the Department (CA/OCS/ACS) for consultation and guidance. |
7 FAM 426.2-1 Failure to Notify
(CT:CON-972; 03-23-2023)
Whenever host government authorities fail to notify the post of the arrest of a U.S. citizen or national in a timely manner, in line with their international obligations, the post should advise CA/OCS/ACS promptly, seek CA and L/CA clearance, and protest immediately upon receiving the Department’s clearance as described in 7 FAM 426.4. Use the following guidelines in preparing the protest:
(1) Were arresting authorities aware that the prisoner was or claimed to be a U.S. citizen or national?
(2) If the host country is a party to the VCCR and there is no bilateral consular agreement requiring notification regardless of whether the prisoner requests such notification:
(a) Protest if host government authorities failed to notify the prisoner of the option to have the embassy/consulate notified upon request, and failed to perform such notification within 72 hours of the arrest following the request of the arrestee;
(b) Do not protest, however, if you know that the prisoner asked that U.S. consular authorities not be notified after being advised that they had the option to have them notified;
(c) You should reference Article 36 of the VCCR in the protest.
(3) If there is a bilateral consular agreement requiring notification whether or not the prisoner requests such notification:
(a) Protest if host government authorities failed to notify the post within the specific time period provided by the agreement; or
(b) Protest, if the agreement does not provide a specific time period (i.e., if it only says “immediately” or “without delay” without specifying a specific number of hours or days), if host government authorities failed to notify the post within 72 hours. Protests should be cleared by L/CA before they are delivered to the host government;
(c) You should reference the bilateral consular agreement in the protest. The bilateral consular agreements, and information on their respective time limits, appear in Table A of the Consular Notification and Access Manual. The manual also contains detailed information on the VCCR and customary international law on consular notification.
(4) If the country is neither a party to the VCCR nor a party to a bilateral consular agreement (check United Nationals Treaties), (i.e., As of 2022, these countries were not: Afghanistan, Burundi, Central African Republic, Chad, Comoros, Congo-Brazzaville, Côte d’Ivoire, Guinea-Bissau, Palau, and San Marino), you should protest as described in paragraph (2) above, referencing customary international law as reflected by Article 36 of the VCCR.
(5) The protest should include a request for an investigation of the notification violation.
(6) The protest should request a response from the investigating authority within a specified time, such as 10 days or 2 weeks.
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NOTE: It is not necessary to obtain the permission of the prisoner before protesting a notification violation. |
7 FAM 426.2-2 Abuse or Maltreatment
(CT:CON-972; 03-23-2023)
a. Verify to the extent possible the prisoner’s allegations of abuse or maltreatment at the hands of host government authorities (see 7 FAM 425.1 and 425.3).
b. Obtain the prisoner’s view on whether they wish the Department to protest the abuse or mistreatment. Although some abused or maltreated prisoners refuse to endorse the Department raising concerns of abuse or maltreatment out of fear of reprisals, let them know that you will work to ensure that they are properly protected when raising these concerns.
(1) Point out that it is difficult for you to protect the prisoner from further harm if you do not protest the abuse.
(2) Explain it is especially helpful to protest in consular districts where abuse or maltreatment is chronic; otherwise, the practice will never cease.
c. If circumstances warrant, and the prisoner’s detention is likely to be of short duration, consider discussing with the prisoner the option that the Department could protest after their release.
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NOTE: In the absence of a prisoner’s concurrence to protest, do not make any protest without first consulting the Department (CA/OCS/ACS). |
d. Report the abuse or mistreatment to the Department (CA/OCS/ACS) immediately:
(1) Describe the nature and seriousness of the abuse or mistreatment;
(2) Provide the prisoner’s stated or implied reasons for refusingconcurrence to protest; and
(3) Provide your own opinion as to whether the nature of the abuse and mistreatment, and the potential effects on other U.S. citizen or national prisoners, warrants a protest regardless of the prisoner’s refusal.
e. When making a protest, request an investigation and a report of the findings within a specified period of time.
7 FAM 426.2-3 Obstructing Consular Access to a Prisoner
(CT:CON-976; 04-06-2023)
a. While visiting consular officers cannot be restricted in the questions they pose to the prisoner, consular access and communication generally must be exercised subject to local laws and regulations. You can expect a certain amount of host government regulation and formality associated with a prison visit, and should be prepared to follow the local rules in a professional manner. For example, you may be required to visit during established visiting hours, and may, in accordance with local laws and regulations and applicable prison rules, be prevented from taking in prohibited items.
b. Nevertheless, under the VCCR and many bilateral consular agreements, such laws, regulations, and rules must not be so restrictive as to defeat the purpose of consular access and communication. In this vein, you should consider protesting actions or requirements, which seem unnecessarily onerous or arbitrary and prevent you from performing your responsibilities effectively. These could include:
(1) Refusal to allow first consular visit within a reasonably short period of time;
(2) Excessive bureaucratic requirements to obtain permission for visits, particularly those requiring long lead times;
(3) Less access or more rigid requirements than those imposed on visiting family members or attorneys;
(4) Moving or otherwise making the prisoner unavailable on pre-scheduled visit days;
(5) Arbitrarily confiscating documents or information materials;
(6) Undue interference with communications between prisoner and consular officer (see 7 FAM 426.2-4).
7 FAM 426.2-4 Undue Interference With Communications Between Prisoner And Consular Officer
(CT:CON-972; 03-23-2023)
a. While a totally private conversation between prisoner and consular officer is the preferred arrangement, this is often not realistic. Many countries, including the United States, place varying restrictions on the privacy of prison visits for security and law enforcement reasons, although under bilateral consular agreements with certain countries, the prison authorities are required to allow you and the prisoner to converse in private. These are listed in the Consular Notification and Access Manual.
b. In deciding whether “undue interference” exists in your efforts to have a reasonably private conversation with a prisoner, you need to determine whether the monitoring is done:
(1) Primarily for security; or
(2) To intimidate the U.S. citizen or national prisoner; and/or
(3) To hinder your performance of legitimate consular functions;
(4) Things to consider include:
(a) Is the monitoring only visual, or visual and auditory? Normally the presence of a guard who can observe but not overhear the conversation is not problematic.
(b) Is the monitoring discriminatory – that is, is it primarily because of the prisoner’s nationality or your position?
(c) How does it compare to monitoring of visits by other individuals, particularly prisoners’ attorneys and consular officers from other countries visiting their nationals?
(d) Is the monitoring intrusive? Does the person or persons doing the monitoring interrupt your conversation, make comments of their own or make threatening statements or gestures towards you or the prisoner?
(e) Are there reprisals against a prisoner for complaints of abuse or maltreatment or other concerns raised about the conditions of imprisonment?
(f) Do authorities insist that communications between the consular officer and the prisoner be in the local language, when that is not English?
7 FAM 426.3 Type And Manner Of Protest
(CT:CON-972; 03-23-2023)
a. Protests may be formal or informal, and either written or oral.
b. The level at which the protest is made and the method are normally left to the post’s discretion, based on such factors as:
(1) The status of the bilateral relationship;
(2) The nature and seriousness of the offending activity;
(3) Past experience with similar protests;
(4) Whether the offending activity reflects the policy of the host government, or the decision of a particular official;
(5) The degree of urgency. For example, while the conduct may warrant a Diplomatic Note, a personal call may provide quicker results.
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FYI: One effective strategy is to protest first at a lower level and, if no satisfactory response is received, to escalate the protest to the state or federal level. |
NOTE: For a sample diplomatic note of protest, see 7 FAM Exhibit 426.3.
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NB: If the country of arrest has entered into a bilateral consular agreement with the United States; that agreement should normally be used in place of the VCCR as the basis for a protest concerning notification or access, particularly when the treaty contains specific time limits and notification requirements. If the country is neither a party to a bilateral consular agreement or the VCCR, the basis for protest will be customary international law. |
7 FAM 426.4 Reporting Proposed Protests
(CT:CON-972; 03-23-2023)
Report all proposed protests to the Department (CA/OCS/ACS) by email to permit the Department to decide whether a protest is appropriate. CA/OCS/ACS and L/CA will coordinate with CA/P, and the regional bureau, as appropriate, in preparing guidance for post regarding the proposed protest. This is important from both a policy and legal perspective as not all actions inconsistent with a treaty or bilateral agreement constitute a violation. It is also important to ensure uniformity with the Department’s responses to the reverse scenario, where U.S. federal, state, or local law enforcement may commit the same alleged violation and the foreign government lodges a protest with the Department. Reporting should detail:
(1) The circumstances that warranted the protest; and
(2) The type of protest, when and where it is proposed to be made, and to whom.
7 FAM 426.5 Reporting Lodged Protests
(CT:CON-972; 03-23-2023)
Once a protest is sent as described in 7 FAM 426.4, you should report it to the Department (CA/OCS/ACS) by record email to permit the Department to decide on what follow-up action might be appropriate. Reporting should detail:
(1) The circumstances that warranted the protest;
(2) The type of protest, when and where it was made, and to whom;
(3) Any timeframe given for investigation; and
(4) The response to, or results of, the protest.
7 FAM 427 THROUGH 429 UNASSIGNED
7 FAM Exhibit 426.3
Sample of a Diplomatic Note of Protest
(CT:CON-976; 04-06-2023)
No. 17
The Embassy of the United States of America presents its compliments to the Ministry of Foreign Affairs and has the honor to bring to the attention of the Ministry of Foreign Affairs the following:
On April 27, U.S. citizen Robert David Johnson reported that he had been beaten by two police officers in Rosslyn, Republic of Z. Mr. Johnson reported that a dispute arose about his restaurant bill at the restaurant “Papa’s” on Wednesday evening, April 18. According to Mr. Johnson, the waitress refused to provide or explain the individual charges, giving only the total of $57. Mr. Johnson refused to pay the bill without further explanation. Mr. Johnson reported that the police arrived a short time later and beat him with nightsticks. He was then taken to the police station where he was again beaten and locked in a cell.
The Embassy did not learn of Mr. Johnson’s arrest until the following Tuesday, April 24, one week later, when a former fellow prisoner of Mr. Johnson’s delivered a note to the Embassy from him. An Embassy officer immediately contacted the Rosslyn Municipal Jail where Mr. Johnson reported he was being held. Chief of Police Thompson confirmed Mr. Johnson’s detention but denied the Embassy officer’s request for immediate access. He said that no one would be allowed to see Mr. Johnson until the judge had questioned him. Subsequent requests for access to Mr. Johnson were also denied.
An Embassy officer finally met with Mr. Johnson on Friday, April 27, after he was released. At that time, Mr. Johnson reported his mistreatment at the hands of the police. He showed the Embassy officer faded bruises on his back and ribs and pointed out two partially healed cuts on his face, which he said, were the results of police abuse.
The failure to provide prompt consular notification and access clearly article 36 of the Vienna Convention on Consular Relations to which both the United States of America and the Republic of Z are parties.
Or
The U.S.-Z consular convention requires the receiving state to notify the sending state within forty-eight hours of the arrest of a national from the sending state and provide access within forty-eight hours of notification. The embassy respectfully requests that the Ministry of Foreign Affairs investigate the physical mistreatment of Mr. Robert Johnson and provide the results of its investigation to the embassy. It is further requested that the Ministry of Foreign Affairs take appropriate measures to ensure that other instances of mistreatment of AU.S. citizens do not occur.
The embassy respectfully requests that the Ministry of Foreign Affairs inform all law enforcement agencies of their obligations under (the Vienna Convention on Consular Relations) or (the U.S.-Z consular convention.)
The embassy of the United States of America avails itself of this opportunity to renew to the Ministry of Foreign Affairs the assurances of its highest consideration.
Embassy of the United States of America, Republic of Z, April 30, 2023.