What to Do When Locked Up Abroad
The following is not legal advice. Contact an attorney who is an international legal consultant if you have questions regarding this article.
Not knowing what might happen next makes travel exciting. At the same time, this spontaneity can lead to stupidity. When I watch the hit series, Locked Up Abroad, on the National Geographic Channel, I have empathy for travelers doing time in foreign prisons — it's also very easy to criticize their decisions and declare that this could not happen to me. While the overwhelming majority of us would not agree to ingest kilos of cocaine and work as drug mules, there are some gray areas, as the following anecdote demonstrates.
In 2009, I was at the gate waiting to board a flight to Vietnam when a woman approached me dressed as a flight attendant from Korean Air. She told me that the pilot on my flight was her friend and wondered if I would give him a present. In her hand was a small bag, which she said was full of the pilot's favorite cookies.
A paranoid person by nature, I thought this request was a bit awkward. Why did she bake cookies and bring them to the airport? Why didn't she ask the gate agent to deliver the package? An opportunistic person by nature, I also thought that doing her this favor could get me bumped from coach to business (this trip was taken before I became a points and miles traveler). I hesitantly accepted the gift and sat in the terminal staring at the bag, anxious to know what was really inside.
[pullquote]An American attorney cannot represent an American citizen who is arrested abroad, but that doesn't mean an attorney will not be useful.[/pullquote]
I boarded the plane and presented the bag to the flight attendant. Confused, she opened it and pleasantly laughed. To my relief, it actually was just some cookies for the pilot — and to my chagrin, I was directed to my seat in coach.
While unlikely, there was always a chance this incident could have escalated into a doomsday scenario. The woman could have been an impostor. The cookies could have been drugs or something nefarious. I could have been arrested. I would have found myself pleading with the foreign officer the all too familiar line, "But it wasn't mine!"
Every year, Americans find themselves arrested or detained while traveling abroad, and the accused are then put in the precarious position of trying to navigate a foreign legal system without the protections of the US Constitution and without representation of an American attorney. Absent such resources, the defendants are at the mercy of their captors. Here's what you need to know about international criminal law when you are traveling abroad, just in case:
Step 1: Contact the U.S. Embassy or Consulate
If faced with this situation, the first step is to contact the nearest US Embassy or Consulate. It is important to understand that the US government is limited with the assistance it can provide. An American arrested abroad is subject to the local laws of that country, which the US cannot circumvent. To be clear, the US State Department's website states it cannot do the following:
- Get U.S. citizens out of jail overseas
- State to a court that anyone is guilty or innocent
- Provide legal advice or represent US citizens in court overseas
- Serve as official interpreters or translators
- Pay legal, medical or other fees for US citizens overseas
It can, however, assist by:
- Providing a list of local attorneys who speak English
- Contacting family, friends or employers of the detained US citizen with their written permission
- Visiting the detained US citizen regularly and providing reading materials and vitamin supplements, where appropriate
- Ensuring that prison officials are providing appropriate medical care
- Providing a general overview of the local criminal justice process
- Informing the detainee of local and US-based resources to assist victims of crime that may be available to them
- Ensuring that prison officials are permitting visits with a member of the clergy of the religion of your choice (if desired)
- Establishing an OCS Trust so friends and family can transfer funds to imprisoned US citizens, when permissible under prison regulations
Step 2: Hire a Local Attorney
After contacting the embassy, the next step is to find a local attorney, which can be a daunting task because of the accused's limited resources. In the US, defendants should spend time researching competent attorneys before enlisting their help. While abroad, it's critical to hire someone who knows the local laws and customs as quickly as possible. The attorney can translate documents, explain the legal process and make sure that the accused is afforded his or her rights under local law.
Step 3: Contact Family and Friends
An invaluable resource is having a voice on the outside that can bring awareness to the accused's cause and raise money for his or her defense.
Step 4: Become Familiar with the Local Criminal Justice Process
As mentioned above, the US State Department can provide a general overview of the local criminal justice process. It's critical to remain engaged in the process, even with limited resources.
Step 5: Hire an American Attorney
To be clear, an American attorney cannot represent an American citizen who is arrested abroad, but that doesn't mean an American attorney will not be useful. The American attorney can coordinate efforts with the local attorney, friends and family, as well as the State Department.
An American attorney may be able to assist with the following:
- Connecting you with a local attorney
- Following up with the US Embassy on your behalf
- Communicating with agencies or other authorities on your behalf
- Communicating with you about what to expect in the process
- Communicating your issues to other US agencies
- Informing you of your rights and the legal process as an American abroad
- Providing peace of mind with the fact that someone is pushing your case and you're not left in the dark
Bottom Line
It's terrifying to think about what can happen if you do find yourself locked up abroad. Each country has different laws and procedures that must be understood and followed. The US State Department can help in this process, but ultimately it's up to the accused to pool his or her resources by hiring a competent local attorney, enlisting the help of friends and family and by retaining an American attorney to serve as an advisor in order to mount a viable defense. Above all, remember this one thing: Never take packages from strangers.
Alexander Bachuwa is a New York attorney who focuses on consumer and international dispute resolution. For more information, visit his law firm's website or his travel blog.
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