365.1121 Slavich, Nickola/31
The Acting Secretary of State to the Ambassador in Italy (Garrett)
Sir: The receipt is acknowledged of your despatch No. 1319, of March 15, 1932, enclosing an informal memorandum from the Italian Ministry of Foreign Affairs, regarding the arrest of American citizens in Italy.
It is noted that you request a statement of the practice followed in the United States regarding the notification by Federal and State [Page 460] authorities to Italian Consuls of the arrest of Italian citizens. You are informed that in so far as the Department is advised there is no uniform practice in this country in this regard. There is no treaty obligation imposed on the officials of either country to notify consular officers of the arrest of their countrymen. The memorandum from the Ministry of Foreign Affairs in paragraph 3 points this out. On the other hand, the practice in this country is to permit the arrested alien himself to notify the consular officers of his country of his arrest. This procedure is deemed essential in order to permit the consular officers of Italy in proper cases to perform their duties under Article IX of the Consular Convention of 18785 between the United States and Italy. While it is commendable for local authorities to follow the practice of advising foreign consular officers of the arrest of their countrymen, it is considered that the essential obligations of the treaty are performed when an arrested person is permitted to communicate promptly with the consuls of his country on his own initiative.
Regarding the second paragraph in the memorandum from the Ministry of Foreign Affairs, it is not perceived that the supreme interests of justice or other peculiar considerations can be held to preclude altogether, in certain cases, consular officers being permitted to consult a citizen of their country who has been arrested. In such cases it would not be practicable for consular officers to carry out their function under Article IX of the Consular Convention of 1878. Unless permitted to communicate with all arrested citizens, a consular officer would not be in a position to ascertain their rights and interests which it is his duty to protect.
As to the fourth paragraph of the memorandum of the Ministry of Foreign Affairs, while it is not urged that American consular officers should in all cases be permitted to communicate with arrested American citizens in private, it is believed that in most cases consular officers should be permitted to confer with arrested citizens of their country in the absence of local public officials. The essential factor, however, is that a conference should be permitted promptly, after the arrest has been effected and a sufficient time in advance of trial to permit the arrested person to secure the consul’s assistance in making provision for his defense.
You are requested to communicate an informal memorandum to the Ministry of Foreign Affairs in the sense of the foregoing. This measure is deemed advisable in order to preclude the inference on the part of the Italian Government that this Government is acquiescent [Page 461] in the views expressed in the memorandum of the Italian Government.
Very truly yours,
- Malloy, Treaties, 1776–1909, vol. i, p. 977.↩