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As a criminally charged person before the court, are you detained or are you free to go while before the court per the order of the court to be present in a criminal hearing?


International Law

1963 Vienna Convention on Consular Relations

Article 36

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. (highlights added) Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;

Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; Adopted by General Assembly resolution 43/173 of 9 December 1988:

(b) "Detained person" means any person deprived of personal liberty except as a result of conviction for an offence; [...]

(d) "Detention" means the condition of detained persons as defined above;

Further reads:

Sabina Veneziano: The Right to Consular Notification: The Cultural Bridge to a Foreign National's Due Process Rights

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  • Was the person served in advance with the order to testify, and did they have an opportunity to visit or contact their consulate in the meantime? Jul 3, 2021 at 14:41
  • Assume ordered to be present and served or even failed to be served but still present at the order of court. (Clarified the question)
    – kisspuska
    Jul 3, 2021 at 14:48
  • I assume that the point of this provision of the Convention is that there should always be the possibility for the consulate to assist their citizen. If the citizen is detained in such a way that they aren't permitted to go seek consular assistance for themselves, then the receiving authorities have to notify the consulate so that they can offer such assistance if warranted. But if the citizen is able to communicate with the consulate by themselves, there's not much point in requiring the authorities to do it for them. [...] Jul 3, 2021 at 14:54
  • So I'd assume the provision isn't meant to apply in the latter case, and that a mere court order, which does not restrict the citizen's ability to contact their consulate, would not be a "detention" for its purposes. Jul 3, 2021 at 14:54
  • I disagree, but it is besides the point, the question is as stated above. There is probably always a reason to contact the embassy. The U.S. interferes even when a citizen is a dual citizen and at home in the other country regardless. If you know the answer to the question above, I’d appreciate it.
    – kisspuska
    Jul 3, 2021 at 14:59

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