Germany's answers to the questions asked by Judges Higgins and Koroma

Answers to the Questions of Judge Higgins
Answer to Question (a):
The sustained breach of Article 36 of the Vienna Convention on Consular Relations
by the United States ôf America suffices to give rise to the international responsibility
of the United States. V\Jhile Germany does not need to establish the point in order for
the United States' responsibility to attach, Germany emphasizes that if the LaGrand
brothers had been notified in timely fashion under the Vienna Convention, assistance
rendered by German consular officiais would have decisively improved the chances -- -·--·---- -- .... - ---···-·-- ____ ,._. ----... - -- - -----· .. ~-··--. ---- .... -·--··--· ·- ··-·
of the LaGrand brothers to avoid the death penalty. Given the irreversible nature of
the damage, Germany considers any sort of material compensation as inappropriate
and meaningless. ln light of the repetitive character of the U.S. authorities' breaches
of Article 36 of the Vienna Convention, Germany considers that the legal
consequences of the international responsibility of the United States called for under
the circumstances must comprise, in addition to a judicial pronouncement of the
illegality of United States conduct, appropriate assurances and guarantees of nonrepetition.
How to ensure in its law and practice the effective exercise of the rights . .
under Article 36 of the Vienna Convention is for the United States to determine.
Answer to Question (b):
ln situations-.. requiring the application of Article 36 of the Vienna Convention the
United States may not maintain the current state of its law and practice, which
prevents the effective exercise of the rights under Article 36. Thus, Germany answers
the qu_estion (b) in the affirmative.
Answer to the Question of Judge Koroma
Gerrnany's position is not that the application by United States dornestic courts of the
doctrine of procedural default in itself constitutes · a violation of the Vienna Convention
· on· Consular Relations. ln principle, States are free to determine their criminel law
and· criminàl procedure.
However,. this freedom is limited. by. the applicable rules of international. law, such as
Article 36 of the Vienna Convention. Hence, if a defendant in criminal proceedings
· ------was ignorant of his cOnsular rights dué to the failure of the receiving State to comply ___ ·
with its obligations under Article 36, subparagraph 1 (b), and if domestic law bars the
defendant, once he has become aware of his rights under the Vienna Convention,
from having the influence of the violation of these rights on his conviction or sentence
reviewed, this is incompatible with the duty of the State under Article 36 paragraph 2
to give "full effect ... to the purposes for which the rights accorded under this Article
[se. Article 36] are intended".
Germany submits that it is in this very situation only that the application of the rulè of
procedural default to the right to information under Article 36, subparagraph 1 (b), by
United States courts is in breach of Article 36, in particular in cases in which the
death penalty has been imposed in spite of a violation of Article 36 during sentencing
proceedings.