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Keywords

probationtreatyvisaappellee

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Gandara v. Bennett

Facts

Gandara, an immigrant from Uruguay, entered the United States on a 90-day temporary visa. After his visa expired on June 22, 2002, he illegally remained in the country. On September 11, 2004, Gandara was arrested in Glynn County, Georgia and charged with false imprisonment. He pled guilty and was sentenced to five years in prison and five years of probation. Gandara claims that following his arrest and during the pendency of his criminal proceedings, the Appellees did not inform him of his right to contact the Uruguayan consulate and receive legal representation pursuant to Article 36 of the Treaty.

Issue

Whether a foreigner who has been arrested and detained in this country and alleges a violation of the consular notification provisions of the Vienna Convention on Consular Relations can maintain an action under 42 U.S.C. 1983.

The question presented in this matter is whether a foreigner who has been arrested and detained in this country and alleges a violation of the consular notification provisions of the Vienna Convention on Consular Relations (the 'Treaty') can maintain an action under 42 U.S.C. 1983.

Rule

Article 36 of the Vienna Convention does not create judicially enforceable rights. It confers legal rights and obligations on States to facilitate and promote consular functions, but no private right is unambiguously conferred on individual detainees such that they may pursue it through 1983.

Article 36 does not create judicially enforceable rights. Article 36 confers legal rights and obligations on States in order to facilitate and promote consular functions. Consular functions include protecting the interests of detained nationals, and for that purpose detainees have the right (if they want) for the consular post to be notified of their situation. But the right to protect nationals belongs to States party to the Convention; no private right is unambiguously conferred on individual detainees such that they may pursue it through 1983.

Analysis

The court analyzed the context of the Vienna Convention, particularly its preamble, which indicates that the purpose of the privileges and immunities created by the Treaty is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States. The court concluded that the rights conferred under Article 36 were meant to facilitate consular functions and did not confer individual rights that could be enforced in domestic courts.

The preamble to the Vienna Convention is clear that the drafters did not intend to create individual rights. It states that the signatories '[r]ealiz[ed] that the purpose of such privileges and immunities [created by the Treaty] is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States.'

Conclusion

The court affirmed the district court's judgment dismissing the complaint, concluding that Gandara's claims did not present a cognizable claim under 1983.

Who won?

Appellees prevailed in the case because the court found that the Vienna Convention does not confer individual rights that can be enforced through 1983.

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