The looming execution of a Mexican highlights the fate of US-death row foreigners who were not informed of their rights and risk being put to death in violation of international law, experts say.
Edgar Tamayo Arias, who was convicted in the 1994 fatal shooting of a US police officer, is set to die by lethal injection in Texas on Wednesday.
With the clock ticking, rights activists and even the top US diplomat have tried to intervene, saying the 46-year-old was deprived of his consular rights, which may have spared him his death sentence.
The 1963 Vienna Convention on Consular Relations, ratified by 176 countries including the US, sets out how authorities must act when foreign nationals are arrested or detained.
This involves notifying the individuals in question of their rights to have their consulate informed. They subsequently also have the right to consultations with consular representatives.
However, of the 143 men of 37 nationalities currently awaiting execution in the US, just six have been notified of their consular rights, according to the latest report published by the Death Penalty Information Center (DPIC), a nonprofit organization based in Washington.
Most of the foreign death-row inmates are from Central America, it said, while eight are from Europe and include one citizen each from Germany, Spain and France. And of the 28 foreigners put to death since 1976, when capital punishment was reinstated in the US, the Vienna Convention was only applied in one case, according to the DPIC report.
“There’s very strong evidence that in many of those cases, prompt consular assistance could have made the difference between life and death,” said Mark Warren of Human Rights Research, the report’s author.
“Remember the death penalty is never mandatory in the US, juries always have the option to convict a person to a lesser punishment than death,” he told reporters.
In 2004, the International Court of Justice ruled that Washington had not honored its international obligations for 51 Mexicans sentenced to death.
The Hague-based court had ordered the suspension of the execution of two of them to determine if the non-respect of their consular rights had hurt their defense.
Yet Texas authorities went ahead anyway, putting the duo to death in 2008 and 2011 after the US Supreme Court rejected their appeals.
Tamayo’s execution this week is the third to be set while about 40 others await their final hour.
In the US federal system, where states have authority over criminal jurisdiction, “interference by the federal government in states’ activities puts the governments on the defensive,” DPIC director Richard Dieter told reporters.
“Texas is always the flashpoint for all these controversial cases,” he added.
Responsible for more than one-third of executions in the US, Texas is likely to go ahead with Tamayo’s despite its “promise to comply to the due process guaranteed by the constitution,” said Maurie Levin, a lawyer representing the Mexican.
Tamayo is set to die on Wednesday in the death chamber of the prison in the city of Huntsville.
Claiming that “clemency is almost never granted” in Texas, Levin has appealed to US federal authorities for a reprieve.
US Secretary of State John Kerry recently also weighed in on Tamayo’s case, urging Texas Governor Rick Perry to delay the execution until a judicial review is completed.
“How can we go around the world and ask other countries to give our folks consular access if they are imprisoned [and] if we don’t do the same thing here?” deputy US Department of State spokeswoman Marie Harf said last month.
Mark Warren, legal advisor to defense teams representing foreigners in the US, said the matter has been a “major irritant on foreign relations.”
One example, he said, was the 1999 execution of two German brothers in Arizona.
“The crisis grows with every execution,” the Canadian researcher added.
“Foreign nationals are uniquely disadvantaged when they’re arrested in an unfamiliar legal system far from home,” he said.
“They don’t know the legal process, they may not speak the language, they don’t know what their rights are — the only assistance they can rely on is their consulate, but many times they don’t even know they can get that assistance,” he added.
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