On appeal by two foreign citizens convicted of drug offenses, Germany's Highest Court hold that failure to promptly inform Defendant's of their rights to notify its diplomatic officials under Vienna Convention does not require suppression of incriminating statements made during delay
In October 2006, the Defendants, a Macedonian citizen and a Serbian citizen, travelled by car from Oslo, Norway, to Hamburg, Germany, where they met a drug carrier and received approximately 1.5 kilograms of cocaine. German authorities arrested them as they were about to leave Germany by ferry, and charged them with conspiring to distribute cocaine. In April 2007, the District Court at Luebeck found the Defendants guilty and sentenced them to three years imprisonment. Defendant appealed to the Bundesgerichtshof (BGH).
On the appeal, they claim that the District Court improperly took into account their incriminating statements made to the German customs officers and the investigating magistrate, because at the time no one had told them about their rights under the Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S. T. 3227; T. I. A. S. 7502; 500 U. N. T. S. 95 (Convention) to have their diplomatic officials informed of their predicament. The German authorities, however, did warn them of their right to remain silent and to contact a lawyer.
Both proceeded to make self incriminating statements. Eventually, the magistrate did advise them of their right to contact their diplomats but the Defendants refused to do so. Defendants now argue that the German authorities should have notified them of their Convention rights to inform their respective diplomats right after they had arrested Defendants.
In a December 20, 2007 ruling, the BGH affirms. The Court agrees that German authorities had violated the Defendants' rights under Article 36 of the Convention but it does not amount to reversible error. The District Court thus did not err in considering the Defendants' incriminating statements.
Although German authorities should have told the Defendants about their Article 36 rights immediately upon arrest, this does not bar evidence of their incriminating statements. There is no basis in international or German constitutional law for excluding evidence received in violation of Article 36 of the Convention. The International Court of Justice (ICJ) has held in LaGrand Germany v. United States of America, Judgment, I.C.J. Reports 2001, 466, 541 (see 2001 International Law Update 118) that national courts should review whether the U.S.'s failure to inform an arrested person of his or her Convention rights as to whether it had adversely affected the outcome of the criminal case.
"In the case of such a conviction and sentence, it would be incumbent upon the United States to allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention. This obligation can be carried out in various ways. The choice of means must be left to the United States." The ICJ did not go so far as to require the national courts to suppress evidence obtained in violation of the Convention.
As for German domestic law, the German Constitutional Tribunal (BVerfG) has held that, even if a violation of Convention Article 36 does takes place, the German courts need not keep out incriminating evidence obtained thereby. See BVerfG NJW 2007, 499, 503. While this additional protection applies only to foreign persons, they also enjoy the general rights and protections of German law.
Defendants here do not claim that immediate compliance with the Convention would have caused a different outcome in the criminal proceeding. In fact, when informed by the magistrate of their rights, they expressly refused to contact their respective officials. Therefore, in this particular case and on these particular facts, the Court does not find any reversible error.
Citation: [German] Bundesgerichtshof, 3 StR 318/07 (20 December 2007). See full Court opinion at www.bundesgerichtshof.de.
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