Red Notice  Law Journal

Red Notice Law Journal

Red Notices, International Extradition, and Perspective

INTERPOL’s Refugee Policy

Posted in INTERPOL's Tools and Practices

Today’s post is by attorney Yuriy Nemets, who has given considerable thought to the issue of INTERPOL’s refugee policy, how it is being implemented, and how it might be further developed.

_______________________________________________________________________

INTERPOL’s New Policy on Refugees: Is Everything Settled?

Yuriy L. Nemets, Esq.

Managing Member at Law Office of Yuriy L. Nemets PLLC

LL.B., J.D., LL.M., Ph.D.

 In February 2015, INTERPOL disseminated among its national central bureaus (NCBs) a new policy regarding red notices and diffusions seeking detention of individuals with refugee status.  According to the new policy,

[i]n general, the processing of red notices and diffusions against refugees will not be allowed if the following conditions are met:

  • the status of refugee or asylum-seeker has been confirmed;
  • the notice/diffusion has been requested by the country where the individual fears persecution;
  • the granting of the refugee status is not based on political grounds vis-à-vis the requesting country.

By adopting this new approach, the organization officially recognized that when it comes to international police cooperation, the advancement of which is the organization’s primary aim, refugees deserve INTERPOL’s special protection.  This special protection is necessary to shield refugees from member states that abuse INTERPOL’s channels to persecute political opponents and other victims of corrupt criminal prosecutions.  Protection of individuals from persecution is one of INTERPOL’s primary objectives.  It is beyond dispute that the new policy furthers that objective.

Several provisions of the new policy deserve closer examination, however.  The policy stipulates that it is to be applied “in general.”  By making this reservation, INTERPOL retains the right to deviate from the provisions of the policy when the organization deems it necessary.  INTERPOL has indicated that the objective of the new policy is to “support member countries in preventing criminals from abusing refugee status, while providing adequate and effective safeguard to protect the rights of refugees.”  If INTERPOL finds it necessary to be able to take a closer look at some red notices or diffusions issued against refugees, it is crucial that the organization include an exhaustive list of such exceptions in the new policy.  This will help avoid ambiguities and better protect the rights of refugees.  Such a list should be limited to serious international crimes (genocide, crimes against humanity, war crimes), terrorism, maritime piracy, and trafficking in illicit drugs, illegal arms, and dual-use goods and technologies.  If the charges underlying the red notice or diffusion do not fall under any of the exceptions, INTERPOL should prohibit any use of the organization’s channels with regard to the refugee.

Another provision of the new policy that merits attention lies in the three-prong test, which is essentially the backbone of the policy.  It appears that the third prong of the test is more likely to raise questions and doubts: “the granting of the refugee status is not based on political grounds vis-à-vis the requesting country.”  The provision appears to stipulate that instead of reflecting the demarche by the country of asylum to spite the country that issued the red notice or diffusion, the decision to grant refugee status must be based on proper application of the 1951 Convention Relating to the Status of Refugees and, in particular, on the asylum seeker’s “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.”  INTERPOL does not specify what evidence it takes into consideration as proof of the existence of a political conflict between the countries involved or the effect the conflict has on the decision to grant refugee status.  In addition, publication of a red notice or diffusion in INTERPOL’s databases, when the organization is aware of a political dispute surrounding the red notice or diffusion, is contrary to the principle of INTERPOL’s neutrality, which is a cornerstone of all the organization’s activities.  The principle of neutrality is enshrined in Article 3 of INTERPOL’s Constitution according to which, “[i]t is strictly forbidden for the Organization to undertake any intervention or activities of a political, military, religious or racial character.”  Over the years, INTERPOL has developed “case law” under Article 3 that reflects the organization’s commitment to avoiding involvement in any political disputes among the member countries.  The better approach for INTERPOL would be to delete the red notice (or diffusion) and allow the countries to resolve their political differences without the organization being involved in any way.

It is also important to emphasize that the new policy does not provide for an exception to the general presumption that before an individual requests deletion of the red notice or diffusion from INTERPOL’s databases, the individual must, according to the Operating Rules of the Commission for the Control of INTERPOL’s Files, provide “sufficient evidence” that he or she knows that there is information about him or her in the organization’s databases.  Because INTERPOL does not make information in its databases accessible to the public without obtaining consent from the country on whose behalf the information is recorded, refugees often learn that there is a red notice or diffusion against them only after they are detained due to the INTERPOL alert.  Detention may lead to prolonged extradition proceedings and potentially extradition; in either case, the rights provided for in INTERPOL’s policy on refugees come too late.

Indeed, in a number of instances refugees were detained because of a red notice or diffusion recorded in INTERPOL’s databases.  One of the most recent cases, which also occurred after INTERPOL began to implement the policy on refugees, is the arrest of Mehdi Khosravi, an Iranian national with refugee status granted by the United Kingdom.  Italian law enforcement detained Mr. Khosravi, acting on the red notice issued by Iranian authorities.  Although Italy released Mr. Khosravi within days of the arrest, this case of swift justice is the exception rather than the rule.  Consider, for example, the case of Paramjeet Signh.  In 2000, the United Kingdom granted Mr. Signh refugee status.  In December 2015, Portuguese authorities detained Mr. Signh, acting on the red notice India issued against him.  Mr. Signh spent two months in detention before Portugal released him.  Petr Silaev, a recognized refugee from Russia, spent even longer, six months, in detention after Spanish authorities arrested him due to the request Russia disseminated through INTERPOL’s channels.  These and other similar cases show that effective measures are needed to prevent the abuse of INTERPOL’s channels with regard to refugees before, not after, such abuse takes place.

INTERPOL must make an exception for refugees to the requirement that an individual prove that he or she knows that there is a red notice or diffusion against him or her in the organization’s databases.  Any individual with refugee status must have the right to demand that INTERPOL delete the information about him or her issued by the country where he or she fears persecution from the organization’s databases without providing any evidence of such knowledge.  INTERPOL must create and maintain a secure and confidential database containing the names and other relevant information about individuals with refugee status.  Any refugee must have the right to have his or her name and other relevant information added to the database.  INTERPOL must monitor all requests disseminated through its channels and compare each request with the database.  If a request is issued by the country whose nationality the individual enjoyed before he or she was granted refugee status, INTERPOL must refuse to publish the request in its databases.  These measures may contribute to the prevention of abuse of INTERPOL’s channels with regard to refugees.

INTERPOL’s efforts to protect individuals from persecution and abuse of the organization’s channels are undoubtedly welcome.  The new policy, however, needs improvement to help INTERPOL achieve that objective and better protect the rights of refugees.

_______________________________________________________________________

Many thanks to Mr. Nemets for his thoughtful and well-reasoned approach to this subject.

As always, thoughts and comments are welcomed.

INTERPOL reform efforts on this side of the pond

Posted in Collateral Effects of Red Notices, INTERPOL's Tools and Practices, Member Country Activity, Uncategorized

Yesterday, I was fortunate to attend the Tom Lantos Human Rights Commission’s briefing on the issue of allegations of INTERPOL Red Notice abuse.  The panelists included:

Rebecca Shaeffer, Senior Legal and Policy Officer, Fair Trials
Leonard A. Homeniuk, former President and CEO, Centerra Gold Inc.
William Browder, author of Red Notice and head of the Global Justice Campaign for Sergei Magnitsky
Dr. Katrina Lantos Swett, President, Lantos Foundation for Human Rights
Moderator: Liana W. Rosen, Specialist in International Crime and Narcotics, CRS

The event was hosted and attended by Representative James P. McGovern. Mr. Homeniuk and Mr. Browder described their respective experiences with INTERPOL, and the profound effect that an invalid Red Notice request can have on the lives of their subjects.  Mr. Homeniuk’s story is here, and Mr. Browder’s story is here. Their cases are unusual only in that they both had the resources to fight their cases, which they both recognize is extremely unusual for most Red Notice subjects.  They were both so impacted by their experiences that they have dedicated time and even more resources to advocate for INTERPOL reform.

It appears to be widely agreed that, if the United States is going to take a role in INTERPOL reform, the U.S., as one of the largest financial contributors to INTERPOL, must tie its funding of INTERPOL to specific reform actions. It also appears to be widely agreed that INTERPOL has got to stop treating all of its member countries as equals, because they are not.  Some of them follow the rule of law, but many others disregard the law completely in applying for Red Notices.  National Central Bureaus have to be accountable, not just in theory, but in reality.  The panelists referred to the fact that INTERPOL’s rules allow for National Central Bureaus to be sanctioned for rules violations, but whether such sanctions occur is unknown to the public. It was recognized that INTERPOL has taken some steps toward reform, but much more is needed before the organization can meet its stated goal of protecting human rights.

Congratulations to Representative McGovern for getting this conversation started. It will be interesting to see how he and other members of Congress move forward on this issue.

As always, thoughts and comments are welcomed.

INTERPOL and China’s Sky Net anti-corruption investigation- can INTERPOL support China’s anti-corruption efforts while still protecting human rights?

Posted in Member Country Activity, Red Notice Challenges, Uncategorized

One of my favorite adages is one that defense attorneys use in closing arguments when the government’s case contains some evidence of guilt, and some evidence of illegal police conduct:

If a waiter in a restaurant brings you soup with a cockroach in it, you don’t eat around the cockroach- you send the whole bowl back to the kitchen because all of the soup is tainted.

I am reminded of this story when I think about China’s Skynet investigation, the subject of a report here.

China has escalated extradition efforts in furtherance of its anti-corruption endeavor, named Skynet, and is seeking the assistance of other countries and INTERPOL, through the use of Red Notices, to find and bring home government officials who left the country and allegedly committed financial crimes.

Of course, often times when we see a massive anti-corruption drive, we also see an accompanying slew of human rights violations.  It appears from the article cited above that China’s Skynet is no exception. From the article, some detail is provided about the tactics China uses to encourage people to return to China to face their charges:

Over 40 percent of the 738 fugitives who returned to China in 2015 were “persuaded” to come back rather than forcibly repatriated, according to the CCDI. Fugitives’ family members sometimes played a role in these “persuasion efforts”, Li Gongjing, a Shanghai police officer, said in an interview with Xinmin Weekly magazine.
“It’s very effective. A suspect is like a kite. Although he is in a foreign country, his line is in China and we can find him through his relatives,” Li said.

“Finding” a suspect is different from “persuading” her to return. In almost every case I have seen where an improperly Red Notice is requested against a subject who has family members in the requesting country, government officials’ “persuasion” efforts have not included polite letters or requests. Rather, they have included the use of physical force and intimidation, seizure of legally owned assets, threats to have family members fired from their jobs, revocation of professional licenses and permits, and the like.  And this is all before the subject is returned to the requesting country- it’s not a stretch to imagine that such a country will commit further human rights and legal violations if she did return.

China has a long-standing history of violating human rights in the name of maintaining law and order.  For this reason, some countries, including the United States, have not agreed to an extradition treaty with China.  Recent evidence  illustrates that China continues its pattern of human rights violations: it has ignored the international amnesty status of individuals in order to re-patriate them, and has also engaged in disappearing individuals who have spoken against the government.

So, back to the soup.  Before INTERPOL can legitimately become involved with China’s anti-corruption prosecutions, China should be required to show substantive and documented reform in the area of human rights and due process rights.  Until then, the whole bowl of Skynet soup is tainted and should be returned to the kitchen.

As always, thoughts and comments are welcomed.

 

 

INTERPOL and politically motivated Red Notices- what we can learn from INTERPOL’s annual reports

Posted in Collateral Effects of Red Notices, INTERPOL's Tools and Practices, Politically Based Red Notices

A reader recently posed some questions about INTERPOL’s dissemination of information, and those questions are answered in today’s post.

Q: There has not been an annual report 2015 by Interpol so far – are there probably other sources that can tell numbers of red notices and diffusions issued in 2015 and numbers of valid notices/diffusions in circulation?

A:  The annual report for the previous year is normally published in conjunction with INTERPOL’s annual General Assembly, which is usually held in October or November.  The reports are published here.  Otherwise, the number of Red Notices or diffusions issued are not made public, because INTERPOL’s member countries do not always request that their notices be publicized.  In fact, a majority of them remain hidden from public view.

Q: Are ways to find out (by the numbers of notices/diffusions/arrested persons in annual reports) how many diffusions/red notices are deleted after Interpol indicated a political motive behind them?

A:  INTERPOL’s CCF has included this information in its annual reports (see below) in the past, and it also has recently begun providing more specific information in its responses to requests for Red Notice removal.  In the response letters, the individuals who applied for relief are now being informed more frequently of the reason for the removal of their notices.  However, the CCF’s recommendations (which are almost always adopted and implemented by the General Secretariat) are not made public, so this information is available largely on an anecdotal basis.

Q: Are there any hints of inner political problems in Interpol?

A:  INTERPOL is an international organization with over 190 member countries, each of which can claim varying levels of compliance with human rights standards, so some  political problems are inevitable.  The CCF, however, does a decent job of guarding itself from external influences, and its own annual reports often call the organization as a whole to task for the continual improvements that are needed to fulfill its obligation of remaining impartial in politically motivated cases, as well as other issues related to human rights protection. The annual reports are found here, and give insight to the issues that the CCF chooses to focus on from year to year.

As always, thoughts and comments are welcomed.

INTERPOL can expect more politically motivated requests from Venezuela – this time with sights on Kimberly-Clark representatives

Posted in Collateral Effects of Red Notices, INTERPOL's Tools and Practices, Member Country Activity, Politically Based Red Notices, Red Notice Challenges

Venezuela’s president, Nicolas Maduro, has threatened to at least attempt to continue Venezuela’s abuse of INTERPOL’s Red Notice system.

The paper product supplier Kimberly-Clark stopped production in Venezuela several weeks ago, in the midst of Venezuela’s worsening economic crisis.  Venezuelans already wait for hours in lines on a daily basis in an effort to obtain basic supplies such as toilet paper, diapers, and personal products. The absence of Kimberly-Clark’s products will certainly exacerbate the shortage.  Just as numerous other companies have done recently, Kimberly-Clark  cited a shortage of currency and raw materials in addition to soaring inflation rates as contributing factors to its inability to continue doing business in Venezuela.

President Maduro quickly accused the company of violating the country’s constitution and laws, and announced his intention to seek the INTERPOL-assisted arrest of Kimberly-Clark representatives. His announcement serves to remind privately held companies that, in addition to evaluating basic economic factors when determining where to conduct business, they must also evaluate the stability of the controlling government as well as its improper use of the judicial system in order to achieve its goals.

If President Maduro makes good on his threat, we can expect to see Red Notices requested for a host of politically motivated, financial crimes; INTERPOL will be left to evaluate the validity of those requests; and the attorneys for the Kimberly-Clark representatives will have to seek the removal any of the Red Notices that are issued.

As always, questions and comments are welcomed.

 

INTERPOL and Russia- time for sanctions?

Posted in INTERPOL's Tools and Practices, Member Country Activity, Politically Based Red Notices

The Russian Federation is one of INTERPOL’s 190 member countries, which means that it has the privilege of using INTERPOL’s databases to help it track down wanted suspects and convicts for prosecution and sentencing.  Along with that privilege comes the obligation to follow INTERPOL’s rules, not the least of which are the requirements that every member country abide by the Universal Declaration of Human Rights and uphold their own due process laws.  Additionally, member countries must not use INTERPOL’s channels to pursue politically motivated  or corruptly filed criminal charges.  When countries violate their obligation to uphold these tenets, INTERPOL’s rules specifically provide that those countries can be sanctioned in a variety of ways.

While INTERPOL has refused to issue certain Red Notice requests as made by the Russian government, anecdotal evidence shows that its quasi-appellate body, the Commission for the Control of INTERPOL’s Files (CCF), is still accepting representations by the Russian government that it is in compliance with its above-stated obligations.  A recent decision by the CCF contained the statement that Russian authorities had provided “satisfactory  elements regarding compliance with … the Universal Declaration of Human Rights.”

Honestly, this kind of statement is stunning, given the international recognition and condemnation of the ongoing and endemic violations of human rights in Russia. In addition to the increasing drum beat of criticism of Russia’s human rights record, now another NGO has issued a statement, yet again affirming the truly horrific human rights violations still occurring in Russia.

The Open Dialog Foundation released a statement on May 9 regarding the involvement of Russian officials in the ‘Magnitsky list’ who are also involved in other politically motivated criminal proceedings in Russia. Open Dialog advocacy officer Thomasz Klosowicz presented information on other politically motivated criminal prosecutions and connected these cases to officials who were also connected to the Sergei Magnitsky case. The Red Notice Law Journal has previously addressed the Magnitsky case here and here.

In its statement, Open Dialog addressed the cases of Nadiya Savchenko, a former Ukrainian pilot and politician convicted for the murder of Russian journalists; the protestors of Bolotnaya Square and Manezhnaya Square, prosecuted for being members of opposition movements and organizations; the leaders of Yukos, accused of fraud and tax evasion; and Mukhtar Ablyazov, a opposition politician and businessman accused of embezzling funds. The purpose of the statement is to demonstrate how corruption and oppression in Russia has led to the abuse and exploitation of both its citizens and foreign nationals, and to serve as a call to action to raise awareness and prevent the unjust treatment and prosecution of these individuals. The Open Dialog Foundation says that it aims to identify that corruption in Russia is systemic and in direct violation of human rights laws.

As Russia’s human rights abuses continue to grow, the question must be asked, at what point does INTERPOL apply the sanctions available to it since its rules were changed in 2012, and hold Russia consistently accountable for its abuse of INTERPOL’s systems?

As always, thoughts and comments are welcomed.

*(RNLJ thanks journalism student Elayza Gonzalez for her contribution to this post.)

 

INTERPOL’s CCF: Movement toward transparency

Posted in INTERPOL's Tools and Practices, Red Notice Challenges, Uncategorized

Given the fact that I have done my share of complaining about the Commission for the Control of INTERPOL’s Files demonstrating a lack of transparency and the need for more disclosure about its decision-making process, it is only fair that credit be given when the CCF does show progress on those fronts.

In a decision that my firm recently received from the CCF, the following pieces of information were included, in addition to its standard language:

  • the relevant arrest warrant was identified and attached to the decision
  • the date that the case was considered by the CCF was provided
  • the Commission’s final thoughts regarding each of my client’s claims were provided (although the precise nature of the analysis was not)
  • the Commission acknowledged other relevant information regarding the client

This type of decision provides for a better understanding of the Commission’s considerations, activity, and viewpoint.  It allows for the recipient to feel that a full review of the case did occur, and therefore contributes to the CCF’s credibility.

As always, thoughts and comments are welcomed.

INTERPOL’s CCF shows that it needs imposed time limits for responses

Posted in INTERPOL's Infrastructure, INTERPOL's Tools and Practices, Red Notice Challenges

A reader recently sent in the following question:

I am a red notice subject. I made a request to CCF and received a reply confirmation that the request is admissible. This was more than 2 years ago and I haven’t received anymore replies.

Should I write back another request to CCF or should I just keep waiting?

I have read that a repetitive numbers of request submitted by the requesting subject can make the commission not process the request.

This reader’s question points out a glaring flaw in the CCF’s procedures: the absence of mandated timely responses or updates.  INTERPOL’s rules as applicable to the CCF only require that the CCF respond to applicants’ requests “at the earliest opportunity.” Such a vague requirement becomes problematic when individuals like the reader, above, wait for years to receive responses.  Even if the CCF has valid reasons for such long delays, faith in the organization’s validity and capability is greatly diminished when no updates are either provided or required.  The CCF has made strides in the last year to improve the speed of its response, and appears to have made some progress in that area, which is welcome. However, as the reader and others have experienced, many older cases are still lanquishing and remain unanswered by the CCF.

For the price of a stamp (or better yet, free of charge: an e-mail), the CCF could send a letter that would both a) assure the inquiring party that the Commission has addressed the case appropriately and that work is stalled for a valid reason, and b) strengthen the Commission’s reputation for upholding its mission as an active, responsible, and responsive guardian of individual human rights.  This is such a small price to pay to guard one’s reputation, and yet the CCF consistently refuses to do so.

Perhaps the most disheartening portion of the reader’s question is his/her reticence in making requests for updates to the CCF because of a concern that the CCF may become frustrated to the point of not processing the request.  This reminds me of an experience of a friend of mine years ago during trial.  She was required to object continually because the prosecution was continually attempting to violate her client’s right to a fair trial.  The judge finally said, “Counsel, I am tired of your objections!”  She responded, “And I’m tired of making them!”

Likewise, it is tiring to have to repeatedly request updates from the CCF, and even more so when no response is forthcoming.  No individual should be afraid of seeking a response that is required to be made from the CCF, nor should the individual be forced to seek updates.  The CCF should proactively manage its caseload and inform the parties as to the status of their cases in a timely fashion.  I can think of nowhere that two years is considered to be timely, and in fact, a two year delay in most circumstances would result in negative consequences:

  • If a lawyer refused to respond to her clients for two years, her practice would shut down.
  • If law enforcement officers refused to provide their supervisors with an update on a criminal investigation for two years, the officers would be fired or re-assigned.
  • If a judge refused to address a case for two years without stating a good reason, the matter would be addressed by a higher court.
  • If a prison failed to transport a convicted person from jail to prison for two years without stating a good reason, the convicted person would be released.

And in fact, none of these circumstances arise with any regularity, because it is simply not allowed.  The CCF, on the other hand, is allowed by INTERPOL’s rules to maintain cases without providing updates or timely responses, and so it does just that with some frequency.

So, the answer to the reader’s question unfortunately appears to be that an update may not be forthcoming without a request for an update, and repetitive requests for updates would not be necessary if updates were provided proactively.

As always, thoughts and comments are welcomed.

 

INTERPOL and U.S. reject baseless charges against US-based Turkish Islamic scholar Fethullah Gülen

Posted in Uncategorized

Clients often ask if a INTERPOL member country can request another Red Notice after it has been rejected or deleted already by INTERPOL. This concern arises when the Red Notice request is motivated by political concerns or personal vendettas.  And, as the case of Fethullah Gülen illustrates, those repeat requests are sometimes made, and INTERPOL usually recognizes them for what they are: more of the same.

INTERPOL has reportedly rejected Turkey’s renewed request for a Red Notice against Turkish Islamic scholar Fethullah Gülen, a cleric who lives in exile in the United States. The decision, reported here, cited a lack of evidence that Gülen had committed any crime, and also referred to political issues raised by Turkish officials.

Turkish prosecutors accused Gülen of being part of a “parallel structure,” which is illegal under the current regime.  As reported in Zaman Today,

The term “parallel structure” was invented by President Recep Tayyip Erdoğan to refer to followers of the Gülen movement, also known as the Hizmet movement, a grassroots social initiative inspired by the ideas of Gülen.

INTERPOL apparently indicated in its decision that it did not recognize the “parallel structure” as a illegal or terrorist organization. In other words, the charges against Gülen appear to have been fabricated based on his political activity. His case is widely viewed as part of a government crackdown on dissidents and political opposition, as described here.  U.S. officials have also thus far refused to extradite Gülen back to Turkey.

As always, thoughts and comments are welcomed.

INTERPOL’s CCF- more meetings, more staff, and new policy all lead to quicker decisions

Posted in INTERPOL's Tools and Practices, Red Notice Challenges

In the last post, I addressed the fact that it seems that some of the CCF’s decisions are being issued more quickly than they have been issued in the past. The CCF’s 2014 Annual Report sheds some light on the Commission’s current approach to its ever-increasing caseload:

A continuing increase in the workload of the Commission was again apparent in 2014. In response to this situation, the Commission decided to double the number of days it spends in session, meaning that instead of meeting for 6 days as in 2014, the Commission will now meet for 12 days in 2015. 

… As this increase was particularly evident in relation to the number of requests received from individuals, the Commission adapted its methods of work to deal with this increasing workload and to improve its efficiency.

… In order to facilitate this additional workload the Secretariat to the Commission gained two additional lawyers and one additional administrative staff member.

Additionally, INTERPOL’s new refugee policy provides the CCF with clear, straightforward guidelines on how to efficiently process Red Notice challenges by refugees, thus providing another opportunity for the more rapid processing of certain cases.

As always, thoughts and comments are welcomed.