If I’ve been arrested in a foreign country, what should I do?

International and Transnational Criminal Law

When overseas, it is important to remember that ignorance of the law is no excuse, and while overseas you will be subject to local laws and their consequences.

Should you find yourself arrested, ensure that you cooperate with the authorities, do not try to bribe anyone, be polite at all times, and contact the Australian consulate – who can provide help in a variety of ways.

 

What could happen to me if I commit a crime overseas?

There are three possible outcomes – you could be:

  • Prosecuted under local law
  • Prosecuted in Australia
  • If you’ve fled the country, you could be extradited back for prosecution

If you’ve committed a crime overseas, you will be subject to local laws and customs. If the matter results in a court case and in a jail or prison sentence, it is possible to serve a duration – if not the majority – of the sentence in Australia, provided similar laws and crimes exist for the punishable act.

 

What assistance can consular services provide?

Should you find yourself detained in a country abroad, provided the country is party to the Vienna Convention and has consular relations with Australia, a consular representative can provide assistance that includes:

  • Contacting your family to act as an information intermediary and to help organise emergency finances
  • Assist in finding an English-speaking lawyer who can represent you in court
  • Provide guidance concerning your treatment and discuss matters involving mistreatment, discrimination, and health and medical concerns
  • Provide information regarding the international transfer of prisoners scheme

 

What are consular services unable to do?

As stated by DFAT’s Smart Traveller fact sheet, “you need to have realistic expectations about our ability to resolve any difficulties you face”. Being an Australian citizen does not provide its citizens with a get out of jail free card when in trouble overseas; each country has its own set of rules that must be followed.

While the Australian consulate will do what it can to help, the services it can provide are limited. It cannot:

  • Get you out of jail, secure written release forms, arrange bail, or conduct investigations.
  • Recommend a lawyer or pay for their fees or provide official legal advice.
  • Supply translation or interpretation services

 

The importance of obtaining a good lawyer

As the services that an Australian consulate can provide are limited – as laid out in the Consular Services Charter – it is critical to find a lawyer to represent you, so that they can provide guidance around which statements or documents to sign, represent you in court, provide interpretation services, help you prepare for a trial, (potentially) seek a pardon or clemency from the local government, and help organise international transfer of prisoner paperwork.

 

What other assistance can a lawyer provide me?

A lawyer can provide guidance around the mutual legal assistance process, and for those who’ve returned to Australia or escaped to some other country for legitimate reasons (political persecution, the possibility of torture or the death penalty), a lawyer with experience in extradition matters can assist in preventing repatriation.

 

Can I service a foreign prison sentence in Australia?

Provided there are at least six months left on the sentence, a transfer agreement exists between the two countries, the conviction was not subject to appeal, and Australia has a similar sentence for the one being served (dual criminality), it is possible to try and serve the remainder of a sentence in Australia.

Speak to your lawyer about investigating the possibility of organising an international prison transfer.

 

FAQ

If I need financial help, what are my options?

For serious criminal charges, it may be possible to petition the Australian government for legal aid to cover the cost of a lawyer and various legal expenses.

The Attorney-General’s office also offers two schemes for Australians serving sentences overseas:

Otherwise, Smart Traveller advises working with your consular officer, lawyer, and family, to organise and manage finances.

How do I prepare for a trial in a foreign country?

We recommend finding a lawyer and translator who can represent you properly, andalso providing regular updates to your consular representative – as they can issue official complaints in the instance of any procedural unfairness.

What if I am a dual national in the country where I was arrested?

Contemporary international law states that countries are not obligated to recognise dual nationality and may not recognise a traveller’s status as an Australian if they entered on a different (local) passport.

Each case will differ depending on the country, and Smart Traveller states that while Australians are entitled to consular help when travelling abroad, “there’s no guarantee that local authorities will listen”.

Is it possible to violate Australian law overseas?

The Australian government is granted extraterritorial jurisdiction to extend its laws beyond the country’s borders for specific criminal activities that include:

  • terrorism
  • human trafficking and slavery
  • money laundering
  • bribing [foreign] government officials, and more.

As stated by Smart Traveller, “the provisions of consular existence doesn’t protect you from the consequences of actions that are prohibited under Australian law”.

What is DFAT and what does it do?

DFAT is the Australian Department of Foreign Affairs and Trade and is responsible for managing the country’s network of embassies, consulate-generals, representatives, and high commissions and their staff across the globe.

Can I contact my family?

Of course. We recommend asking your consulate representative to assist in contacting your family and then instructing your lawyer to keep them informed of any updates to your situation.

Can I apply for a pardon or clemency?

Provided that the local legal practice and laws allow such an optionand you’ve already served jail or prison time for an act in Australia, a request can be made via the Australia consulate to issue to the local government.

How can we help?

We provide expert advice and representation in overseas criminal cases, extradition, and international prison transfers.

Call us on 1300 668 484 for 24/7 legal assistance.