Supreme Court of the United States

United States Court of Appeals
For the Fourth Circuit

Angel Francisco Breard, 32, was sentenced to death for the attempted rape and the murder of neighbor Ruth Dickie in February 1992. She was stabbed 5 times in the neck and found dead in her Arlington, Virginia, apartment naked from the waist down.

He was arrested 6 months later for allegedly attempting to sexualy assault another northern Virginia woman and became a suspect in Dickie's kiling. Breard has been on Virginia's death row since his 1993 murder conviction.

While there he married his wife Roseanna in October, 1996, prison officials said.

Breard was born in Argentina, and his family moved to Paraguay when he was 13. According to court documents filed by Amnesty International, he was sexually assaulted by a soldier when he was 7 and suffered head injuries in a 1985 car accident that left him impulsive and short- tempered.

He moved to the USA in October 1986, enrolling in English classes and finding a job in the Washington, D.C., suburbs of northern Virginia; a marriage to his English teacher lasted just 4 months and he became an alcoholic.

Amnesty International said in court filings seeking clemency for Breard that "buy 1992, his alcoholism had reached the point where he was drunk on a daily basis and unable to work."

Breard confessed to murdering Dickie, but said he was under a Satanic curse placed on him by his ex-wife's father. He rejected a plea bargain that would have spared his life, and pleaded for mercy from a jury that sentenced him to die.

Virginia prosecutors admit Breard was not afforded his rights under the Vienna Convention on Consular Relations to meet with Paraguayan consular officials, but say that issue should have been raised with state appeals courts that upheld the death sentence.

The 15-member United Nations Tribunal ruled last week that the execution should be blocked because Virginia authorities failed to notify Paraguay of the man's arrest as required by an international, the Vienna Convention.

Breard was executed by lethal injection shortly after Gov. Jim Gilmore refused to stop the sentence from being carried out.

Gilmore said delay of the execution "would have the practical effect of transferring responsibility from the courts of the commonwealth and the US to the International Court."

Breard was flanked by an attorney and a spiritual adviser when he was led into the death chamber. His final words were "May glory be to God," Department of Corrections spokewman Larry Traylor said.

It was the 2nd time in 7 months that a foreign government had tried to stop a Virginia execution because of a treaty violation. Mario Murphy was executed last Sept. 17 over objections from Mexico. The US State Department also had pressured then-Governor George Allen to stop Murphy's execution.

Paraguay's government had no comment Tuesday night.

Paraguayans, however, voiced indignation at what they called the overbearing behavior of the United States.

Miriam Delgado, a government employee in Asuncion, Paraguay, said that "Breard's guilt is not in doubt, but the United States acted in an overbearing way in its lack of respect for an international treaty."

Angel Francisco Breard: Facing Death in a Foreign Land

Angel Francisco Breard, 32, is a citizen of Paraguay and Argentina who faces execution in Virginia on 14 April 1998. Like virtually all foreign nationals under sentence of death in the United States of America (USA), Breard was never informed by the arresting authorities of his treaty-based right to contact his consulate for assistance. The US courts have consistently refused to address this treaty violation on procedural grounds and have ignored the other significant issues raised in the Breard case.

The USA has unconditionally ratified the Vienna Convention on Consular Relations, which regulates the functions of consulates in more than 140 countries worldwide. Article 36 of the Vienna Convention protects the legal and human rights of detained foreigners, by requiring local authorities to promptly notify foreign citizens of their right to communicate with their consulate.

Amnesty International remains deeply concerned over the failure of the US authorities to respect the consular rights of detained foreign nationals. Furthermore, the organization finds it unacceptable that the US courts have provided no remedies for past violations of Article 36 which contributed to the imposition of death sentences on foreign citizens[1].

Deprived of consular advice, Breard was unable to participate constructively in his own defence. Due to his failure to comprehend the cultural and legal differences between the US and his home countries, Breard made a series of potentially fatal decisions at his trial which directly contributed to his death sentence.

The refusal of the US courts to address this important issue (and the other compelling claims raised by Breard in his appeals) graphically illustrates the arbitrary nature of the death penalty. Despite judicial procedures intended to ensure that death sentences are fairly and rationally imposed, the death penalty in the USA continues to be a "lethal lottery", which is inflicted primarily on those individuals accused of murder who are least able to defend themselves; the poor, those from ethnic minorities and the mentally retarded and the mentally ill.

Personal Background

Angel Francisco Breard was born in Corrientes, Argentina, the youngest of four children. When 7-years-old, he was sexually assaulted by a soldier. The family moved to Paraguay when he was 13-years-old. At the age of 15 he began consuming alcohol, often in the company of his father who was known to be a heavy drinker.

In 1985, Breard sustained serious head injuries in a car accident, which rendered him unconscious for several days. Family members later reported a distinct change in Breard's personality following the head injury, particularly a tendency to behave impulsively and to lose his temper.

Angel Breard moved to the USA in October 1986, whereupon he immediately enrolled in English classes and secured employment. By the time of his marriage to one of his English instructors the following year, Breard was drinking heavily. The couple separated after just four months of marriage in 1987.

After the failure of his marriage, Breard became severely depressed and increasingly dependent on alcohol. Although he continued to work and to send regular financial support to his mother in Paraguay, his personal life began to deteriorate. By 1992, his alcoholism had reached the point that he was drunk on a daily basis and unable to work.

Case Background

On 17 February 1992, Ruth Dickie was assaulted and stabbed to death in her apartment. Breard was arrested and charged with attempted rape and capital murder. He has never denied his involvement in the murder. However, he has always insisted that he committed the murder because of a satanic curse placed on him by his former father-in-law. He also believed that the jury would be more lenient if he admitted committing the crime and expressed his remorse to them. This belief was based on his impression of trial procedures in his native countries. His lawyers were unable to persuade him that a jury in the US would only view his testimony as a further reason to sentence him to death.

Despite his own admission of guilt and the advice of his attorneys, Breard refused to accept the prosecution's offer of a reduced sentence in exchange for a guilty plea. Instead, he insisted on confessing on the witness stand at his trial, in the mistaken belief that the jury would be lenient or even exonerate him, once they heard that he was the victim of a satanic curse. Breard entered a plea of "not guilty"; his case went to trial in June of 1993.

Capital murder trials in the USA are conducted in two separate stages. During the first phase, the guilt or innocence of the defendant is determined. A separate hearing is then held, during which the defence presents any information about the convicted person that might persuade the court to impose a lesser sentence. This "mitigating evidence" is weighed by the jury against the nature of the crime and other factors before determining a sentence of life imprisonment or death.

After hearing three days of testimony, the jury convicted Breard of attempted rape and capital murder. The penalty phase of the trial lasted only a few hours: Breard's attorneys presented almost no mitigating evidence. The jury never learned, for example, of the significant changes to his personality and behaviour following his head injury. His mother was one of the few witnesses who testified on his behalf; the jury never heard from a number of family members, friends and former teachers who were willing to testify for his good character prior to his car accident. Instead, the jury heard Breard confess openly to the crime while claiming that his actions were the result of a curse placed upon him. Breard has no prior convictions for criminal offenses.

Despite the incomplete mitigating evidence and his own extraordinary confession, the jury deliberated for six hours before agreeing on a sentence. Jurors asked the judge for instructions on the length of time that Breard would be incarcerated if they sentenced him to life imprisonment. They also asked if they could recommend a sentence of life imprisonment without parole. However, the judge refused to provide them with any additional sentencing information, thereby increasing the likelihood that they would recommend a death sentence. On 25 June 1993, Angel Francisco Breard was sentenced to death.

Amnesty International believes that the assistance of government officials from his countries of citizenship may well have lead to Breard accepting the offer of a plea-bargain. In cases where foreign citizens face capital charges, prompt consular notification and assistance may literally mean the difference between life and death. Angel Francisco Breard was tried, convicted and sentenced without the benefit of the consular support necessary to ensure that he would understand the complex legal system of another country. Consular officials would have explained these cultural and legal differences in a way that his attorneys were unable to do; they would also have ensured that Breard's jury heard crucial mitigating evidence that might well have persuaded them to spare his life.

In 1996, Angel Breard finally learned of his right to consular assistance. The US courts have since ruled that it is too late for the issue even to be considered as part of his "habeas corpus" appeal.

The state and federal courts with jurisdiction over capital cases in Virginia strictly adhere to the doctrine of "procedural default", which places limits on the ability of prisoners to introduce new issues on appeal in the higher courts. Since Breard never raised the Vienna Convention violation in the state courts, the federal courts have ruled that they are prevented from considering the merits of the claim. In effect, foreign nationals like Angel Breard are doubly penalized: once by the violation of their rights under the treaty and again on appeal, for not raising a timely objection to the failure of US authorities to notify them of those selfsame rights.

In response to the violation of Breard's consular rights, the Republic of Paraguay filed a civil suit in 1996 against Virginia officials. The suit seeks a court injunction to prohibit Angel Breard's execution and the vacating of his death sentence. However, the US Fourth Circuit Court dismissed the suit in January 1998, ruling that the Eleventh Amendment to the US Constitution prohibits a foreign government from suing a US state--even for non-compliance with an international treaty--in cases where there is no "ongoing violation" of the treaty [2].

In January, the Fourth Circuit Court also dismissed Breard's "habeas corpus" petition, finding that his Vienna Convention claim was procedurally defaulted. Senior Judge Butzner was so troubled by the violation of Article 36 that he issued a separate opinion on the importance of the Vienna Convention, which includes the following comments:

"The protections afforded by the Vienna Convention go far beyond Breard's case. United States citizens are scattered about the world...Their freedom and safety are seriously endangered if state officials fail to honor the Vienna Convention and other nations follow their example...

The importance of the Vienna Convention cannot be overstated. It should be honored by all nations that have signed the treaty and all states of this nation."

Unless the US Supreme Court agrees to hear his final appeal, Angel Francisco Breard will face execution in Virginia on 14 April 1998. He would thus become the sixth foreign citizen to be executed in the United States since 1993. None were informed of their right under international law to obtain the crucial assistance of their consulates following arrest.

The Execution of Ángel Breard: Apologies Are Not Enough

On 14 April 1998, in flagrant defiance of the International Court of Justice (ICJ), the Commonwealth of Virginia executed Ángel Francisco Breard, a Paraguayan national born in Argentina, who was sentenced to death after being deprived of his treaty-based right to consular assistance.

The Breard case has raised a storm of controversy on three continents, after the execution was allowed to proceed in defiance of an explicit order from the ICJ requiring the United States to halt the proceedings.

No other US death penalty case in recent memory more tellingly reveals the glaring double standard which exists between the United States' human rights rhetoric abroad and its own domestic practices. The US government portrays itself as a world leader in the protection of human rights and as a champion of international law. Yet, when confronted with a unanimous opinion from the world's highest court compelling its compliance, the United States chose instead to renege on its binding treaty obligations.

The execution of Ángel Francisco Breard is a human rights tragedy. It is also a shameful indictment of the United States' ambivalent commitment to the international rule of law.

Ángel Breard was sentenced to death in 1993 for the attempted rape and murder of Ruth Dickie in Arlington, Virginia. Before his trial, Breard rejected a plea bargain offer from the prosecution which would have resulted in a life sentence. Against the advice of his attorneys, Breard insisted on admitting his guilt on the witness stand and appealing to the jury for mercy, in the mistaken belief that they would show him leniency.

Virginia officials have never denied that they failed to inform Breard of his consular rights. By the time Paraguayan consular officers became aware of the treaty violation in 1996, the case had already progressed through the state appeal courts. In appeals filed in federal court, defence attorneys argued that consular officials would have persuaded Breard to accept the plea offer, by explaining the cultural and legal differences between the United States and his native country.

The case of Ángel Breard is far from unique. In January, Amnesty International issued a report identifying more than 60 foreign nationals facing execution in the USA, most of whom were never informed of their right to seek the crucial assistance of their consulate following their arrest [1]. US police forces nationwide routinely fail to comply with Article 36 of the Vienna Convention on Consular Relations -- with disastrous consequences for foreign citizens who face the death penalty. The report noted that the US Government continues to oppose efforts by foreign nationals under sentence of death and their governments to obtain relief through the US courts.

Amnesty International subsequently made comprehensive recommendations to US Secretary of State Madeleine Albright which the organization believes would ensure better compliance with Article 36 within the United States. The organization also called on the US State Department to assist in the development of fair and effective remedies for past violations of Article 36 which resulted in death sentences for foreign nationals.

In March 1998, Amnesty International released a report highlighting the case of Breard, which outlined the refusal of the US courts to address the violation of his consular rights on purely procedural grounds [2]. That same month, attorneys representing both Breard and the Republic of Paraguay filed appeals with the US Supreme Court.

In support of Paraguay's appeal, Argentina, Brazil, Ecuador and Mexico filed a joint 'amicus curiae' (meaning a "friend of the court") brief with the US Supreme Court. The international brief outlines the significance of consular assistance under the Vienna Convention and stresses the necessity of developing an effective judicial remedy for violations of the treaty within the United States.

The international amicus brief points out that the US Department of State promptly and vigorously intervenes whenever US citizens detained abroad are deprived of their consular rights. As one example, the brief quoted the text of a State Department telegram to the Government of Syria, in which the United States protested the denial of consular access to two detained Americans:

"The recognition of these rights is prompted in part by consideration of reciprocity. States accord these rights to other states in the confident expectation that if the situation were to be reversed they would be accorded equivalent rights to protect their nationals. The Government of the Syrian Arab Republic can be confident that if its nationals were detained in the United States the appropriate Syrian officials would be promptly notified and allowed prompt access to those nationals".

As Breard's execution date approached, the Republic of Paraguay sought a binding ruling from the International Court of Justice that the execution of Breard not take place because of the violation of his consular rights. Under the terms of the Vienna Convention's Optional Protocol Concerning the Compulsory Settlement of Disputes, any dispute over the application or interpretation of the consular treaty falls under the compulsory jurisdiction of the International Court. Both the USA and Paraguay are signatories to the Optional Protocol and are thus required to comply with any rulings of the ICJ on this dispute.

On 7 April 1998, attorneys representing the USA and Paraguay presented arguments before the 15-member International Court of Justice, which is one of the six principal organs of the United Nations. Paraguay contended that the violation of Article 36 of the Vienna Convention had directly contributed to Breard's death sentence and that the appropriate remedy was for Virginia to retry him.

The USA responded by asserting that the ICJ had no jurisdiction over US criminal cases; US authorities had already provided the only available remedy by investigating the incident and apologizing to Paraguay. In an argument that belittled the importance of consular access by foreign nations, the United States claimed that the breach of Breard's consular rights had no impact on the criminal proceedings against him.

On 9 April, the ICJ unanimously ruled in favour of a "provisional measures" order, requiring the United States to "take all measures at its disposal" to stop Breard's execution, pending full adjudication by the International Court of the treaty violation itself. This historic ruling is believed to be the first time that the International Court of Justice has intervened to halt an execution anywhere in the world.

Several of the judges issued separate opinions on the ruling, including the President of the Court, US jurist Stephen M. Schwebel, who wrote, "An apology does not assist the accused". He also noted that the United States had a strong interest in seeing that Article 36 is honoured worldwide, if only to protect its own citizens abroad. "In my view, these considerations outweigh the serious difficulties which this order imposes on the authorities of the United States and Virginia".

Reaction was swift within the United States to the unprecedented ICJ initiative. The day after the ICJ hearing, the US Supreme Court immediately requested an opinion from the US Solicitor General on the views of the United States concerning the appeals filed by Paraguay and Breard. Following the ICJ ruling, the US State Department sent a letter to Virginia Governor James Gilmore, apprising him of the decision and requesting that he give it his "full consideration". A spokesperson responded by stating that the governor "will continue to follow the US courts and the United States Supreme Court" and that Virginia would oppose all motions for a stay of execution.

Reaction from other quarters was even less constructive. A spokesperson for Senator Jesse Helms, Chairman of the US Senate Foreign Relations Committee -- who appeared to have forgotten that the USA entered into the terms of the Vienna Convention voluntarily -- was quick to condemn the ruling. "It's an appalling intrusion by the United Nations into the affairs of the State of Virginia", Mark Thiessen said. "There's only one court that matters here. That's the Supreme Court. There's only one law that applies. That's the United States Constitution".

In the final days leading up to the execution, new appeals were filed with the Supreme Court based on the ICJ ruling. The US government told the Court that no stay of execution should be granted, because the assistance of consular officials would not have changed the outcome of the criminal proceedings.

In a move that showed the clear double standard of the US authorities (that they deem consular rights vital for US citizens but not for foreign nationals detained in their own country), US Secretary of State Madeleine Albright took the unprecedented step of sending a letter to the Governor of Virginia, asking him to grant a temporary reprieve to Breard in order to protect the safety and consular rights of US citizens detained abroad.

A spokesperson for Albright was quoted as stating that she wanted to ensure "that nothing that happens in this complicated legal situation undermines the important value that American citizens get...(by being) able to meet with consular officers overseas. We have to bear in mind in many parts of the world the justice systems are rather fragmentary and unfair in many occasions." Amnesty International has documented numerous unfair trials in death penalty cases, including trials within the United States.

Albright also appeared to be contradictory in her message to Governor Gilmore. Her letter emphasized that the "United States has vigorously defended Virginia's right to go forward with the sentence imposed on Mr Breard by Virginia's courts."

However, any potentially beneficial impact of the Secretary of State's letter was annulled by the simultaneous assertion by the US government that Virginia had a legal right to proceed with the execution.

At 7.35pm on 14 April, the US Supreme Court finally issued its decision on the Breard case, less than two hours before the scheduled execution. In a 6 to 3 ruling, the Court denied all appeals. Following a last-minute round of emergency appeals, Ángel Francisco Breard was executed by lethal injection at 10.30 pm.

In its 7-page decision, the Supreme Court ruled that Breard had forfeited his right to appeal the violation of the Vienna Convention because he had failed to raise the issue in the state courts--even though he was unaware that the right existed. The Court further determined that Paraguay had no standing to seek a remedy by suing Virginia officials for non-compliance with the Vienna Convention, because the US Constitution prohibits suits by foreign governments against US states without their consent.

Amnesty International strongly believes that the Supreme Court's decision flies in the face of well-founded principles of international law and the dictates of common sense.

International commitments should be fulfilled in good faith and the authorities of a country cannot make themselves exempt from them by arguing that there are obstacles within their national law. The existence of national constitutional, legislative or regulatory norms cannot be invoked to avoid or modify the fulfilment of international obligations. These are the general principles of the rights of peoples in jurisprudence, as is the principle that internal jurisdictional decisions cannot be used as an obstacle for the fulfilment of international obligations. These principles are affirmed in article 27 of the Vienna Convention on the Law of Treaties, signed by the USA in 1970.

By citing domestic legal obstacles to absolve the United States of its binding treaty obligations, the Supreme Court decision is itself in breach of international law. Article 27 of the Vienna Convention on the Law of International Treaties clearly states that a nation "may not invoke the provisions of its internal law as justification for its failure to perform a treaty".

Breard failed to raise a timely objection to the denial of his consular rights for one reason and one alone: because Virginia officials had never informed him of those rights to begin with--as required by Article 36. The Supreme Court's decision penalizes and victimizes foreign citizens ignorant of their consular rights. The brazen failure of state officials to meet their binding obligations under the Vienna Convention was an inconvenient truth that the Court chose simply to ignore.

Following the execution, Paraguayan officials expressed their resolve to pursue a binding judgement from the International Court of Justice against the United States, as a matter of principle. The ICJ has requested written submissions from Paraguay for 9 June and has instructed the USA to outline the steps it took to prevent the execution no later than 9 September.

Paraguayan officials could barely contain their outrage over the United States' failure to comply with the ICJ order. Deputy Foreign Minister Leila Rachid reportedly stated that "the United States has been the champion of democracy...let them be the first one to demonstrate to us the principles of democracy; let them also respect human rights". She reportedly added that "there is not an international summit at which they [the US government] do not preach the preservation of human rights".

Speaking to reporters on her way to attend the Summit of the Americas, Secretary of State Albright expressed her hope that the execution would not endanger the consular rights of Americans abroad, but that the United States "did the right thing". She went on to state:

"We have made very clear that it is essential any foreign national who is arrested for any reason...is told immediately that he or she is entitled to be in touch with their consulate. It is something that we will insist on and do insist on when one of our citizens is in trouble abroad."

During the Summit of the Americas, participants endorsed a statement calling for "full respect and compliance" with Article 36 of the Vienna Convention. Amnesty International welcomes this timely response from the Organization of American States. But as Amnesty International has previously stated, without fair and effective remedies for past violations of Article 36 in capital cases, any assurances of future domestic compliance from the US authorities can only be seen as hollow promises.

Amnesty International condemns the execution of Ángel Francisco Breard in the strongest possible terms and is calling on all governments to express their dismay and disapproval to the United States authorities for their shameful undermining of the international rule of law.

The implications of the Breard execution go far beyond the undermining of US credibility in the international community or the potential danger to US citizens arrested abroad. Even more significantly, the United States has eroded the foundations of international justice and accountability, on which all protection of universal human rights ultimately rests.

Amnesty International is further calling on all governments not to follow the example of the United States, but rather to reaffirm their support for universal compliance with international human rights standards.

On 22 April 1998, the state of Arizona executed Honduran national Jose Villafuerte, despite objections from the Honduran government. Like so many foreign citizens condemned in the United States to the cruel, degrading and inhuman punishment of execution, Villafuerte was never informed after arrest of his fundamental right to obtain the assistance of his consulate. Other foreign nationals also face imminent execution in the United States.

Whether or not the USA will fulfil its pledge to uphold consular law in the aftermath of the execution of Ángel Francisco Breard remains to be seen. But in the eyes of many members of the international community of nations, any further attempt by the US government to boast about its deep commitment to human rights protection will undoubtedly be seen as little more than arrogant hypocrisy.

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(1) For further information see: USA: Violation of the Rights of Foreign Nationals Under Sentence of Death", AI Index: AMR 51/01/98.
(2) For further information see USA: Ángel Francisco Breard: Facing Death in a Foreign Land, AI Index: AMR 51/14/98.

Amnesty International

April 15, 1998