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27 September 2005

Seventh Circuit holds Vienna Convention Confers Private Right of Action

On September 27, 2005, the Seventh Circuit issued its opinion in Jogi v. Voges, No. 01-1657, sorting through "a bewildering array of complex issues" (slip op. at 2) to hold that the Vienna Convention on Consular Relations ("Vienna Convention") confers an implied private right of action for civil damages. That decision is ground-breaking: Very few treaties are found to create individually-enforceable rights of action; two courts of appeal had previously ruled that the Vienna Convention does not confer individual rights in the context of criminal proceedings; and no court of appeals had previously ruled that the Vienna Convention confers a private civil right of action. Brad P. Rosenberg, of Mayer, Brown, Rowe & Maw LLP's Washington, D.C. office, represented Tejpaul Jogi, an Indian citizen living in Illinois who pled guilty to committing a crime without being informed of his right pursuant to the Vienna Convention to contact the Indian Consulate for assistance. Mr. Jogi brought his lawsuit under the Alien Tort Statute, 28 U.S.C. ยง 1350 ("ATS"), seeking monetary damages for the Vienna Convention violation. (Mr. Jogi has since completed his prison term and has been deported to India.) The district court dismissed Mr. Jogi's claim for civil damages, finding that the state officials had violated the Vienna Convention but ruling that Mr. Jogi's allegations were insufficient to trigger subject matter jurisdiction under the ATS. On appeal, the Seventh Circuit, in an opinion by Judge Diane P. Wood, reversed the district court's dismissal. Describing the ATS as "a model of brevity, if not clarity" (slip op. at 6), the Court first concluded that the ATS confers jurisdiction on federal district courts to adjudicate torts committed in violation of treaties. The court then moved "to the crux of the case" and determined that Mr. Jogi had stated a claim under the Vienna Convention. First, the court reviewed Article 36 of the Vienna Convention, which requires detaining authorities to "inform the person concerned without delay of his rights." Next, the court found that the Vienna Convention is a "self-executing treaty" - that is, the treaty took effect without the need for any further legislation. Notwithstanding that two other courts of appeal had previously found that the Vienna Convention does not confer individual rights in the context of a criminal proceeding (see United States v. Emuegbunam, 268 F.3d 377, 394 (6th Cir. 2001); United States v. Jimenez-Nava, 243 F.3d 192, 198 (5th Cir. 2001)), the court concluded that "Article 36 confers individual rights on detained nationals" (slip op. at 24) and, accordingly, that "Jogi had an individual right to notification under the [Vienna] Convention" (slip op. at 28). Because "a country may not reject every single path for vindicating the individual's treaty rights" (slip op. at 29), and because the Seventh Circuit (and every other court to analyze the issue) had previously rejected "path[s]" such as the suppression of evidence, the court found that "a damages action is the only avenue left" (slip op. at 29) and concluded that "there is an implied private right of action to enforce . . . Article 36 rights" (slip op. at 30). Mr. Jogi's case was remanded to the U.S. District Court for the Central District of Illinois for further proceedings. Related Items

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