1. How to Avoid Getting Arrested Overseas
When my two kids did their foreign study, I told them that they would be bound by the laws in the countries in which they would live/visit and that United States embassies and consulates can do little to help them if arrested.
I also talked with them about various things they should not do. The below are things you probably should not do in a foreign country. Some of these things may not be a crime (or a big deal) in your country, but they may be a crime and a big deal in other countries.
- Driving without a local driver’s license.
- Driving a motorcycle without a motorcycle driver’s license.
- Leaving “home” without your residency permit, visa, and/or passport.
- Living or habituating illegally.
- Letting your visa expire or overstaying on your visa.
- Working illegally/Working “under the table.”
- Participating in an “under the table” deal.
- Carrying or doing drugs, even if it’s just a plant you picked off the side of the road.
- Buying counterfeit products.
- Attempting to bring back large quantities of counterfeit goods to your home country.
- Soliciting prostitutes.
- Mouthing off or being generally uncooperative with a police officer or other government official.
- Criticizing the country you are visiting.
- Criticizing the government or the leaders or the royalty of the country you are visiting.
- Criticizing the flag or the national anthem of the country you are visiting.
- Taking pictures of military exercises, crime scenes or police activities.
- Taking pictures of a government installation.
- Bribing a police officer or official.
- Using an unapproved GPS device.
- Providing information on or discussing protests or other police activities.
- Conducting or operating a business without the necessary permits and licenses and approvals.
- Not paying all your taxes.
- Importing something into the country that is not supposed to be imported into that country. This includes things for your business that might be perfectly legal elsewhere, or even perfectly legal to use within the country.
- Doing business with a country with which you are not supposed to be doing business.
- Selling something that foreigners are not supposed to be selling.
- Conducting a business that foreigners are not supposed to be conducting. In some countries what is legal for its citizens may not be legal for foreigners.
- Illegally raising funds.
- Engaging in financial fraud. The definition of this can be quite broad in many countries.
- Engaging in religious activities.
- Engaging in environmental crimes.
- Engaging in certain sexual acts.
- Not paying a taxi or a retail bill. Even if you are being scammed, you should consider whether it might not be safer for you to pay it and walk away than to be arrested for not paying it.
- Fighting or loud arguing.
- Anything cannabis related. I put this in its own special category because I am always shocked by college students who assume that it is no big deal everywhere in the world.
Our international lawyers have dealt with or heard of criminal law problems arising from nearly all the above.
I once came close (or what felt close to me at the time) to going to jail when I was in high school in Turkey over #15 above. I attended a well-known private Turkish high school whose student body was less than 1% foreign students. One day, during the playing of the Turkish national anthem, an American friend slid me a note that caused both of us to laugh uncontrollably. We were called into the headmaster’s office where we were met by a group of worried administrators concerned someone would report us to the authorities for acting negatively toward Turkey. Fortunately, nobody did.
Many years ago, I went to Papua New Guinea to help a Russian client recover three helicopters from there (I love writing this sentence). Business visas cost around $950 and tourist visas were around $50. I was going there for business and so I got a business visa. At one point while I was in Goroka, I met with the Governor of the Eastern Highlands Province who was not happy I was there at all. He asked to see my passport and I gave it to him. He looked for the PNG visa and was shocked when he saw that I had a business and not a tourist visa. I have no doubt that his plan was to deport me (or worse) for having an improper visa.
My general advice is as follows:
- Know the law and follow it to the letter. Do not do something just because someone tells you they heard someone else did it without a problem. There are murderers who never get caught, but that does not make it legal, nor does it mean you will get away with it. Want to know the law? The best way is to read the webpage of your embassy or consulate or chamber of commerce and to talk to people at your embassy or consulate. Or hire a lawyer who deals with the applicable laws every day.
- If it is illegal in your own country, even if just a minor infraction, you should assume it is illegal in whatever country you are visiting.
- If you think it might be illegal, assume it is.
- If your country has a system that allows you to register with it before you travel, you should do so. See the United States’ Smart Traveler Enrollment Program here.
- Always keep a copy of your visa and your passport with you and make sure everything is current. If the country in which you are traveling clearly does not require this, it is usually a good idea to have a copy on you.
- If you are questioned by a government official, always be respectful and tell the truth. If you get caught in a lie you are done. Do not make jokes, and especially do not make jokes about the country. Make the job of the authorities easier. The people in front of you are doing their jobs (or seeking a bribe), and no matter what you do, your actions that day will not advance democracy or human rights or any other ideal one iota. Even government officials in authoritarian regimes are human beings with at least some small bit of discretion. Your job is to give them a reason to cut you a break. This does NOT mean paying a bribe, which has could get you in worse trouble than being deported.
- If nothing seems to be working, ask if you can call your embassy, your consulate, your lawyer, your joint venture partner, a local friend, or anyone else you think might be able to help you.
- If you think you might have visa issues down the road, deal with them now. Start your application, find the right lawyer, talk to your embassy or consulate. Do not wait.
Remember that foreigners are generally more likely to get caught, more likely to get arrested, more likely to get prosecuted, and more likely to get a stiffer sentence than a local.
2. What to do When Arrested in a Foreign Country
If you are arrested in a foreign country, I recommend you do some combination of the below.
1. Contact Your Embassy or Consulate
Your first step should be to contact your nearest embassy or consulate, but recognize they will be limited in the assistance they can provide. Foreigners arrested in China are subject to Chinese laws, not the laws of their own country. You almost certainly will be subject to the laws of the country in which you are arrested.
Your embassy or consulate should be able to help you with the following:
- Providing you with a list of local attorneys who speak your native language.
- Contacting your family, friends, or employer.
- Visiting you in jail and providing you with reading materials, and maybe food.
- Monitoring your situation in jail and helping ensure you are being treated appropriately.
- Providing you with an overview of the local criminal justice process.
2. Hire a Local Criminal Attorney
You will need a local attorney, and fast. This means if you are arrested in Qingdao, you need a Qingdao criminal lawyer and not a Shanghai one. China has many terrific criminal lawyers, and they usually require relatively low upfront flat fees to take on a new matter for a new client. This means it is usually relatively easy to find a good Chinese criminal lawyer, but few speak English. These sorts of things are generally true for most countries.
Get a good local criminal lawyer, and fast.
How do you find such a lawyer? That depends. By way of an example, one of our lawyers was recently retained by a client to find a criminal lawyer in a small Mexican city for the client’s son. This lawyer immediately emailed all of the lawyers in our firm, and we all emailed our Mexican lawyer contacts in various cities near this small city for names of recommended Mexican criminal lawyers in or near this small city. The client ended up hiring a lawyer who was mentioned multiple times by the Mexican lawyers we know, and we ended up working with him (he did not speak English) and he was quite good.
Get your local criminal lawyer as quickly as you can. If you wait, certain things may happen that cannot be reversed, and that includes getting out of jail quickly.
3. Contact Family and Friends BUT Keep Them Quiet
Sometimes you want your family and friends to scream about your arrest, but most of the time that is the worst strategy possible. It is generally not a good idea to publicize your case unless your local criminal lawyer instructs you to do so. Few countries will release you because your hometown newspaper is saying you are being held unfairly, and publicizing the unfairness of your arrest might just cause the local prosecutor or court to double down. But see here for a case where our law firm did our utmost to generate bad publicity for the arresting country, but that was Japan and that was a politically sensitive case, and Japan cares more about what the United States and EU think than most countries.
4. Hire an Attorney in Your Home Country (Sometimes)
Our international attorneys get contacted regarding people arrested overseas maybe a dozen times a year. If the matter is something like a shoplifting arrest, we usually do little more than provide a few tips and help find a good local criminal lawyer and sometimes a good local translator.
But in some cases, we do considerably more. By way of one example, our firm represented an American charged by China with massive financial fraud. We stayed involved in this case from its beginning through sentencing, and we did the following:
- Found him a top-tier criminal lawyer. This lawyer did not speak Chinese and so we often served as the intermediary.
- We often served as an intermediary with the US Consulate.
- We would communicate with the detainee’s family in the United States.
- We gathered up key mitigating documents from the United States and from other countries outside China.
- Most importantly, we explained to our client and his family China’s legal system and the huge benefits of admitting guilt and reimbursing those harmed by the crime.
In the Japan case mentioned above, we did the following:
- Found our client top-tier criminal lawyers. These lawyers spoke good, but not great English, and so we often served as an intermediary.
- We would visit our client in jail in Tokyo because he felt more comfortable with us than with his Japanese lawyers and because we could communicate with him better in English than could his Japanese lawyers.
- We would communicate with the detainee’s company in the United States.
- We gathered up key mitigating documents from the United States and from other countries outside Japan.
- We helped the Japanese lawyers with big picture strategies, including how to publicize the case outside Japan.
- We helped publicize the case outside Japan.
- Most importantly, we explained Japan’s legal system to our client and the benefits of admitting guilt in a way most likely to get him deported after the trial, rather than put back in jail.
Be careful out there.