Supreme Judicial Court (January 20, 2011)

The notifications required by Article 36 of the Vienna Convention must be provided to foreign nationals upon their arrest. If the defendant is not provided with these notifications, he may challenge the soundness of any resulting conviction in a Rule 30 (b) motion for a new trial.

The defendant was not a United States citizen. In 2003 he plead guilty to three separate offenses and received a suspended sentence. In 2008 he was rearrested and received an order of deportation from the United States Department of Homeland Security. He moved pursuant to Mass. R. Crim P. 30(b) to vacate his guilty pleas and for a new trial, claiming that, in violation of Article 36 of the Vienna Convention on Consular Relations, he was never notified of his right as a foreign national to have his consulate informed of his arrests. His motion was denied and he appealed. The Supreme Judicial Court transferred the case on its own motion.

Article 36 of the Vienna Convention:
The 1963 Vienna Convention on Consular Relations governs the establishment of consular relations between nation States and defines the functions of the consulate. Article 36 sets out the procedure to be followed when a foreign national is arrested or detained. It provides that a foreign national shall be notified "without delay" of "his rights," including his right to have authorities of the detaining State notify his consulate of his detention. The Vienna Convention is silent as to the remedy for the failure in individual cases to adhere to the provisions of Article 36, where the detainee is subsequently convicted of a crime.

The Supreme Judicial Court looked to other jurisdictions for guidance on the issue and found inconsistent results. After reviewing several decisions from the International Court of Justice, the Court found that Article Thirty Six's notice protocols impose on Massachusetts an obligation to provide a defendant whose rights have been violated with a process to challenge a subsequent conviction. The Court ruled that a motion for new trial pursuant to rule 30(b) is the appropriate vehicle for relief. "In such a post trial proceeding, it is incumbent on the foreign national to demonstrate that the failure to comply with Article 36 of the Vienna Convention gave rise to a substantial risk of a miscarriage of justice." In order to show a substantial risk of a miscarriage of justice, the defendant must establish that his consulate would have assisted him in a way that likely would have favorably affected the outcome of the case.

In the present case, the defendant asserts that had he "known of his right to consular notification and assistance he would have sought that assistance and presumably, at least, have been advised of the necessity of taking great care in seeking to understand his attorney, the proceedings against him and ways in which he might accomplish this." The Court found that the defendant failed to show that the outcome of his case would have been different, had he been informed of his right to have his consulate notified. The Court affirmed the order denying the defendant's motion for a new trial.

Note: The defendant also argued that he was denied his right to an interpreter during the court proceedings. Although he did not prevail in the argument, the Court stated that "[t]his dispute could have been avoided if there were a place on the criminal docket sheet to indicate not only whether an interpreter was required, but whether one was, in fact, present at the proceeding. We recommend that such a change be made."