7 FAM 450
TRIALS, APPEALS, SENTENCES, POST SENTENCING
(CT:CON-804; 04-30-2018)
(Office of Origin: CA/OCS)
7 FAM 451 Policy On Attendance
(CT:CON-379; 06-09-2011)
The Department encourages consular observance of the trial
process as a general rule, but also understands that consular attendance at
trials or hearings in some judicial systems is neither necessary nor useful,
and in a few instances could actually be counter-productive. Also, we
understand that your presence at a ten or twenty-minute hearing may sometimes
require sitting in a courtroom for all or a significant part of a day, idle
time that you can little afford. For this reason, the Department generally
leaves it up to posts to determine the degree to which a consular officer will
attend the trial of a U.S. citizen or national prisoner.
7 FAM 451.1 Advantages To Attending
Trials And Hearings
(CT:CON-379; 06-09-2011)
As a consular officer, you may not actively participate in
the judicial process. However, the single fact of your presence often
accomplishes several things, including:
(1) Helps ensure that there is no discrimination
against the U.S. citizen or national arrestee on the basis of U.S. nationality,
either in procedure or sentence;
(2) Shows the U.S. citizen or national arrestee, and
the local government, that the United States has a legitimate interest in the
case;
(3) Enables you to accurately report proceedings
first-hand, not only to the Department, but to family members, Congressional
representatives, and others, consistent with the Privacy Act;
(4) Improves your own knowledge of the judicial system
in the host country; and
(5) Allows you to monitor the conduct and capabilities
of local attorneys; and
(6) Facilitates contacts with host government
authorities.
7 FAM 451.2 When Consular
Attendance Is Mandatory
(CT:CON-379; 06-09-2011)
There are certain circumstances when consular officer
attendance at hearings is mandatory. These circumstances include:
(1) There are indications of discrimination against
the U.S. citizen or national on the basis of U.S. nationality, race, religion,
or ethnicity either in procedure or sentence. Such indications could include,
but are not limited to:
(a) Past history of discriminatory treatment of other
U.S. citizen or national prisoners;
(b) Treating an U.S. citizen or national prisoner of one
race, religious or ethnic background differently than an U.S. citizen or
national prisoner of another racial, religious, or ethnic background;
(c) Refusal to provide the U.S. citizen or national with
translation facilities when proceedings are in a language the prisoner does not
understand;
(d) Slanted pre-trial publicity, particularly where the
press is government-controlled, or it is clear the host government is leaking
the information;
(e) Proposed sentences or fines that clearly exceed
those normally accorded local nationals or third country nationals convicted of
similar crimes;
(2) The charges are political in nature, or the trial
is expected to have political overtones;
(3) The charges and/or the trial are a pertinent
factor in the bilateral relationship with the host government;
(4) The prisoner or his family has specifically
requested your presence at the trial, and it is reasonably feasible for you to
do so; and
(5) You are instructed to do so by the Department.
7 FAM 451.3 Attendance By Local
Employee
(CT:CON-379; 06-09-2011)
You may find it helpful in some cases to have a Locally
Employed Staff (LE Staff) attend the trial:
(1) To accompany a consular officer in order to
translate or to explain local procedure;
(2) In circumstances where a consular presence is not
necessary, but it is useful to have a first-hand report on the proceedings;
(3) In those few cases where the known presence of a
consular officer would be disruptive and perhaps detrimental to the U.S.
citizen or national prisoner.
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Note: The LE Staffs attendance cannot substitute for
that of the consular officer when the circumstances in 7 FAM 451.2
are present.
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7 FAM 452 Bail, Bond And Parole Issues
(CT:CON-092; 10-28-2004)
It is common practice in many countries to release prisoners
pending completion of their trial or judicial process, either on bail or some
other type of conditional liberty. This can sometimes create problems, which
you must address carefully.
7 FAM 452.1 Guarantees
(CT:CON-092; 10-28-2004)
Consular officers may not, under any circumstances, provide
a written or oral guarantee to a court or detaining official stating that the
arrested U.S. citizen or national will appear for a hearing or trial.
7 FAM 452.2 Bail Fees
(CT:CON-379; 06-09-2011)
a. There are no programs or provisions that allow
consular officers to loan funds to an U.S. citizen or national arrestee for the
purposes of posting bail. There no government funds available for such
payment.
b. You may advise family members or others in the
private sector to utilize the OCS TRUST procedures for transmission of
sufficient funds to post bail or pay fines (see 7 FAM 435.2).
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Note: In such cases, it is preferable for payment from
OCS Trust to be made to the prisoners attorney, or the prisoner, rather than
deal directly with the court or the bail bondsmen. Your direct payment could
be misinterpreted as a U.S. Government guarantee.
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7 FAM 452.3 Denied Bail
(CT:CON-379; 06-09-2011)
Often U.S. citizen or national prisoners will allege
discrimination because bail is common for host country nationals facing similar
charges, but has been denied in their case. In such cases:
(1) You should satisfy yourself that the denial is
based on non-discriminatory reasons such as the increased likelihood of a
non-resident to flee the country, and that other third-country nationals are
treated similarly; and
(2) If, once your review is finished, you believe the
bail was denied for non-discriminatory reasons, you should make an effort to
explain the factors behind the decision to the U.S. citizen or national
prisoner and his family.
(3) If you feel discrimination may be present, follow
the procedures in 7 FAM 453.1.
7 FAM 452.4 Consuls Cannot Be
Parole Officers
(CT:CON-092; 10-28-2004)
At times, foreign government officials, particularly court
officials not familiar with immunity concepts, will request you to serve as the
parole officer for an U.S. citizen or national arrestee. You must explain that
you are explicitly forbidden by the Department, as well as by international law
and practice, to serve in such a capacity.
7 FAM 453 Protesting JUDICIAL
Discrimination
(CT:CON-435; 01-24-2013)
Whenever you encounter discrimination against U.S. citizen
or national prisoners in the judicial system, you should notify CA/OCS immediately.
CA/OCS/ACS will coordinate with the regional bureau and CA/OCS/L
(ASK-OCS-L@state.gov) with coordinate with the Office of the Legal Adviser to
provide the post with guidance to enable you to take appropriate action to
counter this discrimination at whatever level appears most effective.
7 FAM 453.1 Reporting
Discrimination
(CT:CON-379; 06-09-2011)
a. Immediately, brief your senior management on the
incident, and develop an appropriate post strategy for dealing with the issue.
b. Immediately, advise the Department (CA/OCS/ACS) by
cable using CASC and other appropriate tags, detailing the incident and
outlining posts proposed plans to protest. This will enable CA/OCS/ACS to
better coordinate guidance to post with offices that do not have access to the
ACS automated system . In urgent cases this could also be done by e-mail.
7 FAM 453.2 Evidence Of
Discrimination
(CT:CON-092; 10-28-2004)
When protesting an instance of discrimination, you should
develop the strongest case possible, and provide specific evidence supporting
the claim of discrimination to the appropriate host government officials. Such
evidence might include information contained in the following sub sections.
7 FAM 453.2-1 Transcript of Trial
or Hearing
(CT:CON-092; 10-28-2004)
If the discrimination is based on oral statements or slurs
made during a judicial hearing, obtain an official transcript if possible, and
highlight the significant portions in your protest.
7 FAM 453.2-2 Prior Case Records
(CT:CON-092; 10-28-2004)
Excerpt from your own records, or whatever prior court
records are available, information to statistically document your case
whenever:
(1) The discrimination is based on treatment of an
U.S. citizen or national prisoner that is obviously different that treatment
accorded a local national; and
(2) Treatment of an U.S. citizen or national prisoner
is different from other U.S. citizen or national prisoners of different race,
religion or ethnic background.
7 FAM 453.2-3 Host Country Law Or
Regulation
(CT:CON-092; 10-28-2004)
You should know what laws or regulations the host country
may have against discrimination in the judicial process, and cite the
appropriate statutes or regulations in your protest.
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FYI: Your post may wish to hire a local private attorney
who can research this issue. Department funds may be available in such
cases. Contact CA/OCS/ACS for possible assistance.
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7 FAM 453.3 Level Of Protests
(CT:CON-435; 01-24-2013)
Together with post leadership, you should carefully develop
a post strategy that determines the type of protest; level of protesting
official, and to whom the protest should be made. The text of the protest
should be cleared by CA/OCS/L (ASK-OCS-L@state.gov) which will coordinate
clearance with L/CA. CA/OCS/ACS will coordinate clearance with the regional
bureau.
7 FAM 453.3-1 If The Trial Is
Still Ongoing
(CT:CON-379; 06-09-2011)
a. An informal protest to the appropriate judicial
authority may be the fastest and most efficient method to eliminate the bias.
b. For example, if the discrimination springs from a
particular judge or prosecutor, an unofficial approach to a Chief Judge or
similar judicial official requesting a change in trial judge or prosecutor may
be the best action for you to take.
c. A timely formal protest remains a possibility if
circumstances warrant.
7 FAM 453.3-2 If The Trial Is
Concluded
(CT:CON-092; 10-28-2004)
a. Determine whether the discrimination protest can be
a part of a sentence hearing or an appeal. It is usually helpful to work with
the U.S. citizen or nationals attorney in these instances.
b. If this is not feasible, a formal protest, such as a
diplomatic note and/or a formal call on the Foreign Minister or Justice
Minister may be the most appropriate action
7 FAM 454 Appeals
(CT:CON-092; 10-28-2004)
When a convicted U.S. citizen or national decides to
appeal the verdict or the sentence, you should:
(1) Continue to provide appropriate consular services,
including visits and attending hearings;
(2) Be available to perform liaison services with the
prisoners lawyer and judicial authorities; and
(3) Scrupulously avoid offering advice to a convicted
prisoner or attorney on whether the prisoner should file an appeal. You may,
however provide general information on the appeal process.
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Note: In cases where the prisoner may be eligible for a
transfer to the U.S. under a bilateral or multilateral treaty, you should
make certain the prisoner understands that he or she cannot be processed for
transfer while any appeals are still pending
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7 FAM 455 Reporting
(CT:CON-379; 06-09-2011)
You must promptly record in the ACS system and report to the
Department each step in the judicial process. Significant decisions or actions
may also be reported by e-mail to your CA/OCS/ACS desk officer.
7 FAM 455.1 Interim Hearings
(CT:CON-379; 06-09-2011)
Record promptly in the ACS system. Significant decisions
or actions may also be reported by e-mail. Actions include:
(1) Date;
(2) Purpose;
(3) Any changes or additions to charges;
(4) Whether consul or LE Staff attended;
(5) Any significant outcome of hearing; and
(6) Whether accused and/or attorney appeared.
7 FAM 455.2 Delayed Or Cancelled
Hearings
(CT:CON-379; 06-09-2011)
Record promptly in the ACS system. Significant decisions
or actions may also be reported by e-mail. Actions include:
(1) Reason for delay, postponement, or cancellation;
and
(2) Expected date of rescheduling.
7 FAM 455.3 Judgment Or
Determination
(CT:CON-379; 06-09-2011)
It is critical to report the outcome of a trial to the
Department (CA/OCS/ACS) as quickly as possible, since a verdict, particularly a
guilty verdict, will often generate immediate family, congressional, and media
inquiries. Record this information promptly in the ACS system and notify your
CA/OCS/ACS desk officer by e-mail.
7 FAM 455.3-1 If Acquitted
(CT:CON-379; 06-09-2011)
Record promptly in the ACS system. Alert your CA/OCS/ACS
desk officer by e-mail. Include:
(1) Date and time of release or expected release;
(2) Reasons for acquittal as stated in judicial
proceedings;
(3) Further consular services to be provided (passport
issuance; repatriation loan, etc); and
(4) Persons to notify at U.S. citizen or nationals
request.
7 FAM 455.3-2 If Convicted
(CT:CON-379; 06-09-2011)
Record promptly in the ACS system. Alert your CA/OCS/ACS
desk officer by e-mail. Include:
(1) Exact charges;
(2) Sentence if known;
(3) Sentencing date, if this is a separate process or
hearing;
(4) Decision to appeal, if known;
(5) Conduct or emotional state of U.S. citizen or
national;
(6) Persons to notify;
(7) Name and address of new detention facility, if
prisoner is to be moved; and
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Note: If the new detention site is outside of your
consular district, transfer your posts file to the U.S. consular office in
that district and notify the Department (CA/OCS/ACS).
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(8) Any overall observations or comments on the
judicial process you consider useful or significant.
7 FAM 456 POST SENTENCING ISSUES
7 FAM 456.1 Corporal Punishment
(CT:CON-435; 01-24-2013)
a. Corporal punishment is the infliction of physical
pain upon a persons body as punishment for a crime or infraction. Corporal
punishments include, but are not limited to, flogging, beating, branding, and
mutilation.
b. Posts must immediately inform your CA/OCS/ACS desk
officer of any sentence including corporal punishment of a U.S. citizen.
CA/OCS/ACS will work expeditiously with CA/OCS/L (ASK-OCS-L@state.gov), the
regional bureau, and the Office of the Legal Adviser to provide guidance to
post.
c. Country Specific Information sheets should include
language about mandatory corporal punishment.
7 FAM 456.2 Death Penalty
(CT:CON-435; 01-24-2013)
a. Posts must immediately inform your CA/OCS/ACS desk
officer of a U.S. citizen sentenced to death. CA/OCS/ACS will work
expeditiously with CA/OCS/L (ASK-OCS-L@state.gov), the regional bureau, and the
Office of the Legal Adviser to provide guidance to post.
b. Country Specific Information sheets should include
language about mandatory or permissive death penalty.
7 FAM 456.3 Clemency and Pardons
(CT:CON-435; 01-24-2013)
a. Posts may receive inquiries from prisoners, their
families, attorneys, or Congressional representatives requesting post
assistance in conveying requests to the host country for clemency or pardons.
b. Posts may assist by delivering to the host
government requests from families and members of Congress. Alternatively,
members of Congress may elect to deliver the entreaty to the foreign embassy in
Washington.
c. Consular officers may provide prisoners with
information available from the host government about pardon procedures.
d. Requests for the U.S. Government to make a request
on humanitarian grounds based on health of the prisoner or health of a family
member should be conveyed to your CA/OCS/ACS desk officer. The request will be
coordinated with CA/OCS/L (ASK-OCS-L@state.gov), the regional desk, and the
Office of the Legal Adviser. It is unusual for such a request to be granted
7 FAM 457 THROUGH 459 UNASSIGNED