Summary:

I.

Under Article 36.1.b of the Vienna Convention on Consular Relations (hereinafter: the Vienna Convention), to which the Federal Republic of Germany is a contracting party, a foreigner who has been arrested must be informed without delay about the right to have the consular post of his country notified of the arrest. In 2001, in proceedings of the Federal Republic of Germany against the USA, the International Court of Justice (ICJ) interpreted this provision as inter alia creating rights for the individual that are directly enforceable by arrested persons against the receiving State (ICJ, LaGrand Case, Judgment of 27 June 2001 Germany v. United States of America, ICJ Reports 2001, 464 et seq.). In proceedings instituted by Mexico against the USA (ICJ, Case Concerning Avena and other Mexican Nationals, Judgment of 31 March 2004, Mexico v. United States of America, ILM 43 [2004] 581 et seq.), the ICJ once more emphasised that the legal obligations set out in Article 36.1 letter b of the Vienna Convention created (inter alia) rights for the arrested person. The ICJ stated that the receiving State was under an obligation to ensure the possibility of effective review by courts such cases.

The complainants, including two Turkish nationals, were convicted on homicide charges in Germany and sentenced to imprisonment, in some cases for life. The courts based the  verdict of guilt inter alia on the statements made by the Turkish defendants during police interrogations following their arrest. In the appeal proceedings before the Federal Court of Justice, the complainants asserted that the Turkish nationals should have been advised under Article 36 of the Vienna Convention when they were arrested by the police. They submitted that because this provision was violated, their statements were not admissible in criminal proceedings. The Federal Court of Justice dismissed the appeals as unfounded; it held that Article 36.1 of the Vienna Convention did not protect a person who was directly affected by arrest against imprudent statements made on their own volition before being informed about their rights.

II.

The constitutional complaints against this decision were successful. The First Chamber of the Second Senate of the Federal Constitutional Court set aside the challenged orders of the Federal Court of Justice, since they violated the complainants’ right to a fair trial (Article 2.1 of the Basic Law in conjunction with the principle of the rule of law). The Federal Constitutional court stated that the Federal Court of Justice would have been obliged under constitutional law to take into account the case-law of the ICJ on the Vienna Convention. However, it had interpreted Article 36.1.b.3 of the Vienna Convention in a way that was inconsistent with the interpretation of the International Court of Justice. The Federal Constitutional Court therefore remanded the matters to the Federal Court of Justice. The Federal Court of Justice must decide on the consequences the infringement of constitutional rights has for the criminal proceedings.

In essence, the decision is based on the following considerations:

Within the German legal system, international treaties to which the Federal Republic of Germany has acceded, such as the Vienna Convention, have the status of federal statutes (see Article 59.2.1 of the Basic Law). The regular courts therefore have an obligation to apply and interpret Article 36 of the Vienna Convention in the same way as the domestic law of criminal procedure. When they interpret Article 36 of the Vienna Convention, they must take into account the case-law of the ICJ on the Vienna Convention. This follows from the principle that the Basic Law is open to international law, in conjunction with the principle that the judiciary is bound by law and justice. The latter includes the decisions of an international tribunal created under international law, in accordance with the contents of the treaty incorporated into the domestic legal system.

In this respect, the obligation to take this case-law into account is not restricted to individual cases concerning German nationals. On the contrary, the interpretation of a treaty by the ICJ must be recognised as providing normative guidance beyond the individual case in dispute, and the contracting parties must give consideration to such case-law. In this regard, it is a precondition that the Federal Republic of Germany is a party to the treaty containing the substantive law at issue and has submitted itself to the jurisdiction of the ICJ, either through the Optional Protocol to the Vienna Convention, as in the present case, or by unilateral declaration.

In the challenged decisions, the Federal Court of Justice interpreted Article 36.1.b.3 of the Vienna Convention in a way that is inconsistent with the interpretation undertaken by the ICJ. Unlike the Federal Court of Justice, the ICJ reached the conclusion that Article 36.1 of the Vienna Treaty creates a right of the individual concerned to consular assistance in order to ensure the effective exercise of their rights of defence. The Federal Court of Justice held that it is the purpose of the obligation to provide the required information to enable the individual concerned to seek and obtain consular assistance from the sending State. If this right was violated, a criminal conviction is appealable.

Against this background, a breach of the Vienna Convention must be assumed if it appears possible that the individual concerned, due to the lack of consular assistance, was unable to fully exercise a particular procedural right such as the right to refuse to testify, in a manner that cannot be remedied. However, it does not follow from this that a failure to provide the information required under Article 36.1.b.3 of the Vienna Convention inevitably means that the evidentiary findings are inadmissible in judicial proceedings.

Constitutional law does not specify the legal consequences arising from a violation of the obligation to take into account the case-law of the ICJ. To the extent that the Federal Court of Justice, when reinterpreting Article 36 of the Vienna Convention on the basis of the case-law of the ICJ, comes to the conclusion that the trial courts’ judgments were based on a procedural error, it is incumbent upon the Federal Court of Justice to determine the consequences resulting from this procedural error.