I have the honor to add that further inquiries were addressed to the
Italian Ministry of Foreign Affairs based on the Department’s
instruction No. 631 of May 5, 1932, to which no reply has yet been
received, although it may be noted that several of the points raised
in the Department’s instruction of May 5th are referred to in the
enclosed Memorandum from the Foreign Office.
[Enclosure—Translation]
The Italian Ministry for
Foreign Affairs to the American
Embassy
Memorandum
1) As has been pointed out in the Memorandum of the Embassy of
the United States of America, there is no treaty obligation to
notify the consular officers of either country of the arrest of
their countrymen.
In the specific case of the United States of America, Article 9
of the Consular Convention of May 8, 1878, in effect between
Italy and the United States of America is confined to
recognition of the right of the respective consular officers to
“protect the rights and interests of their countrymen.”
2) Neither is provision made for the possibility of a foreign
citizen’s notifying his own consular authorities of his arrest,
but, should there be no reason to the contrary, notification may
be given in accordance with the prison regulations (Articles 103
to 105, Royal Decree No. 787 of June 18, 1931—Supplement to Official Gazette No. 147 of June 27,
1931).
3) Notification by the Royal Authorities of the arrest of foreign
citizens is generally given in the Kingdom if the arrested
person declines to take advantage of this privilege. As to the
time when such notification may be given, it is to be observed
that in the supreme interests of justice it might in certain
cases be advisable or necessary to conceal the fact that an
arrest has been made in order to proceed to the arrest of
possible accomplices or for other unforeseen reasons; it is for
this reason that any contact between the arrested person and
outsiders may be postponed for a certain length of time.
However, the right of consular officers is invariably safeguarded
since when preliminary investigations are under way and in every
case prior to the trying of the case, except in cases of
“citazione direttissima” (confessed crime, etc.) (i.e. in cases
so evident that they are tried immediately without preliminary
investigations) in which
[Page 463]
there is an official advocate, the arrested person may confer
with his attorney and consul in accordance with the prison
regulations (Articles 96 to 102, above cited regulations).
4) The presence of public officials during interviews with
persons under arrest is an invariable rule which cannot be
waived, both because so stipulated by Italian law and required
to ensure the safety of persons permitted to interview the
prisoner and because it is necessary to prevent any outbreak
among arrested persons which would disturb order in the
prison.
5) In Italy during the period of preliminary investigations the
prisoner may communicate with outsiders with the permission of
the authorities at whose disposition he is held, which
permission must be requested each time.
The Royal Government’s position as to the right of its own
diplomatic or consular officers to visit their countrymen
arrested in foreign countries is that the local laws and
treaties or conventions existing between the two states must be
respected.
6) It may be well to add that intervention by diplomatic or
consular officers in cases of the arrest of their countrymen
should be limited to verification of satisfactory conditions of
health and treatment accorded to prisoners and inquiry as to the
prisoner’s possible needs, avoiding, for obvious reasons, any
attempt during the preliminary investigations to enter into the
merits of the case or the application of local law; this instead
may be done once the period of investigation has been
completed.
