82. The Court notes that Article 36 of the VCCR imposes dual obligations to the
receiving State and also provides the detainee with individual rights. The
first obligation is the duty to inform the Applicant of his right to consular
services and the second is to facilitate the provision of consular services at
the request of the Applicant. The second duty is contingent on the request
from the detainee, after the latter has been informed of their right to consular
services. Therefore, in determining the Applicant’s claim that the
Respondent State failed to facilitate his access to consular services from
his country of origin, this Court will consider a two-stage process as
envisaged under Article 36(1) of the VCCR. First, that the detainee can
request for consular assistance and second, the State of residence is under
an obligation to inform the detainee of his right to consular services.
83. On the first issue regarding a detainee’s request for consular services, the
Court is cognizant of the fact that prompt consular assistance may be
decisive in the outcome of criminal proceedings, to the extent that it
guarantees the foreign detainee the protection of his country of nationality,
particularly with regard to: accessing consular officials; obtaining advise on
his constitutional and legal rights in his own language in a manner
comprehensible to him and receiving proper legal counsel to enable him
understand the legal consequences of the crime of which he is accused.
84. In the instant case, the record of proceedings and the other pleadings on
file are silent on whether or not the Applicant requested to be provided
consular services as a foreign national. Nevertheless, this Court observes
that the Applicant could only have requested for the provision of consular
services after being informed by the Respondent State about his entitlement
to receive consular services as a foreign national.
85. On the second issue as to whether the Respondent State discharged its
obligation to inform the Applicant, who is a foreign national, of his right to
consular services, the Court is of the considered view that it is imperative
that the minimum guarantees of criminal justice be applied and interpreted
in accordance with the VCCR in order to guarantee due process. These
22
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents