Red Notice  Law Journal

Red Notice Law Journal

Red Notices, International Extradition, and Perspective

INTERPOL’s CCF to begin publication of decisions (Part 2 of RNLJ’s New Rules series)

Posted in INTERPOL's Tools and Practices, Uncategorized

As discussed in the last post, here, INTERPOL’s new rules governing the CCF took effect in March. From a practitioner’s standpoint, among the more significant changes is the CCF’s new task of publishing its opinions and providing reasoning for them.

The CCF is now required to “endeavour to make its decisions, opinions, recommendations and
reports public in all working languages of the Organization.”

This language of the statute is devoid of hard deadlines or methods of publication- there are no assurances that the CCF’s decisions will be published monthly, quarterly, yearly, etc. In fact, there is not the requirement that the CCF actually publishes an opinion- simply that it must endeavor to do so.

However, the publication provision in the statute is still good news. This marks the first time that the CCF has obliged itself to even contemplate creating a public repository of opinions, and that would be a very useful thing for both the CCF and practitioners for a couple of reasons:

  • Published decisions allow practicioners to better understand the CCF’s analytical process and the weight that the CCF gives to various types of arguments.  Until now, we have been limited to reviewing our own cases or the relatively few media cases to gain insight as to the CCF’s deliberative process.
  • Published decisions allow the CCF to receive better prepared requests for relief. An informed practitioner is an effective practitioner.

Now, we wait to see how and when this new practice will take effect.

Next time: new rule on the how quickly an attorney must act on the discovery of new information in an applicant’s case.

As always, thoughts and comments are welcomed.

 

 

 

INTERPOL’s CCF- Here come the lawyers! (Part 1 of RNLJ’s New Rules series)

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

Last November, at the annual meeting held under the direction of INTERPOL’s newest Secretary General, Jürgen Stock, the organization adopted new rules to be applied to its quasi-appellate body, the Commission for the Control of INTERPOL’s Files (“CCF”).  This change marks the first time since 2012 that INTERPOL and the CCF have undergone such a substantive change in the rules.

The new rules are set forth in the “Statute of the Commission for the Control of INTERPOL’s Files,” the purpose of  which is to define the work of the CCF.  The changes in the CCF are both procedural and substantive.  We’ll address the most significant differences in the next several posts, and today will begin with one of my favorites and something that almost no one ever asks for: more lawyers.

In the context of the CCF, more lawyers is good.  Up until now, the CCF has been comprised of five members, who are required to include: one chairperson who has held a senior judicial or data protection post; two data protection experts having held senior positions in that field; an electronic data processing expert having held a senior position in that field; and an expert with international experience in international police co-operation.  While some attorneys have held the positions, there has not been an absolute requirement that attorneys be appointed. Consequently, the Commission members’ experience in or interest in international human rights issues, criminal law fundamentals, and international judicial matters have not been required.

Now, however, the new Statute re-defines the makeup of the CCF.  There will now be two chambers that comprise the CCF:

The Supervisory and Advisory Chamber, responsible for:

  • ensuring compliance of personal data with INTERPOL’s rules, and
  • assisting INTERPOL with advise on projects, rules, and oeprations regarding the processing of personal data.

The Requests Chamber, responsible for:

  • examining and deciding on requests for access to and removal or correction of data.

The Requests Chamber is required to include five lawyers, one of each with expertise in data protection, international police cooperation, international criminal law, human rights issues, and one with judicial or prosecutorial experience.

While the CCF has already staffed very capable attorneys who work on the data requests, this is the first time that the members of the Commission will be required to be attorneys as well.  This change is indicative of a higher commitment by Commission members to the examination and understanding of legal arguments and theories, and should make the work of the CCF’s staff attorneys less burdensome in terms of pre-session preparation of cases.

The inclusion of attorneys on the CCF will also assist in accomplishing one of the other new requirements of the CCF: to provide reasoned and published opinions.  More on this topic next time.

As always, thoughts and comments are welcomed.

 

 

 

 

INTERPOL Red Notice removal cases- a sample of results from 2016, part 3

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

As the year begins, and changes appear to be coming to both INTERPOL and the CCF,* Red Notice Law Journal reviews some highlights from the CCF’s activity in 2016:

Third case study: a comparison of the CCF’s treatment of Russian Red Notice requests:

In today’s post, I’ll compare two very different decisions from the CCF, primarily to highlight the difference in the quality and depth of the responses that we are receiving now.  Both cases involved very complicated fact patterns and legal issues, and both required that the CCF review a significant quantity of evidence prior to making its decision.

The decision in the first case, however, was more similar to the decisions that the CCF has issued in the past: concise, to the point, and lacking the information that would allow the client to fully understand the basis of the decision or that would allow the attorney to understand how the CCF viewed each legal argument. The decision in the second case contained many of the elements that the CCF will be required to include after the rules changes take effect in March.*

September 2016 decision regarding a Russian national:

In this decision, which was received in the early fall of 2016, the CCF advised that the client’s Red Notice had been removed, and confirmed that it had communicated to all the National Central Bureaus that the data should also be removed in their respective national databases.  This was not a particularly detailed decision as relayed to us, but it was obviously a welcomed one.

December 2016 decision regarding a Russian national:

In the decision received in December of 2016, the CCF methodically detailed the background of the case, the actions that it took upon receiving the evidence supplied on behalf of our client, and the reason for the CCF’s ultimate decision to remove the Red Notice. It also supplied an official document explaining in plain language the the client was not known to INTERPOL’s files nor did his data exist within INTERPOL’s databases.  The detail supplied in this letter allows for an understanding as to the CCF’s reasoning and analysis, which is valuable for the client as well as the attorney.  The client feels that the CCF really took the time to examine and understand the case, which is very important, given that many Red Notice subjects who seek relief from the CCF have never received due process in their cases from the countries that requested the notices.  The attorney benefits, as does the CCF, by learning which arguments and which evidence were most compelling, or least compelling, in the eyes of the Commission members.

This change in the CCF’s approach to issuing its decisions is beneficial to all parties. In the next series of posts, I’ll address these changes and how they might affect practitioners and notice subjects.

As always, thoughts and comments are welcomed.

*Changes to the CCF will be addressed in the next post.

INTERPOL Red Notice removal cases- a sample of results from 2016, part 2

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

As the year begins, and changes appear to be coming to both INTERPOL and the CCF,* Red Notice Law Journal reviews some highlights from the CCF’s activity in 2016.

Second case study: Americas-based client with Red Notice from north African country

In this case, our client had visited a country in the north of Africa on vacation as a young adult.  While vacationing, he was arrested for possessing a small amount of marijuana. He paid a fine and his passport was returned to him and he returned home as planned.

Many years later, he learned that he had been charged, tried, and sentenced in absentia (in his absence) to serve a lenghty prison term for a very different charge: trafficking in drugs, not just possession of a small quantity. He was shocked, because he had never been notified of the charges, the trial, or the sentence, and only learned of the Red Notice on the case when he attempted to travel.

We challenged the Red Notice on multiple grounds, including a new one for us: the requesting country violated its obligations under the Vienna Convention on Consular Relations (VCCR). The CCF ultimately recommended the removal of this Red Notice based primarily on two of the grounds that we raised: first, it found that the requesting country violated our client’s due process rights, and second, it violated its obligations under the VCCR. The CCF’s recommendation was accepted, and the notice was removed.

Our client had attempted to resolve this matter for years before coming to us for help, and had been told be other counsel that Red Notice removal simply was not possible. He was greatly relieved to learn first-hand that it was, indeed possible.

* These changes will be addressed in the coming posts.

As always, thoughts and comments are welcomed.

 

INTERPOL Red Notice removal cases- a sample of results from 2016, part 1

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

As the year begins, and changes appear to be coming to both INTERPOL and the CCF,* Red Notice Law Journal reviews some highlights from the CCF’s activity in 2016:

First case study: Vladimir and Alexandr Kholodnyak

In this case, our clients, Vladimir and Alexandr Kholodnyak,** succeeded in their efforts to remove the Russian- requested Red Notices in their names.  The CCF agreed to remove both of the brothers’ Red Notices, and followed its now-standard practice by specifiying in the decision letter the following information:

• The data registered in INTERPOL’s files was not compliant with INTERPOL’s rules. Consequently, the Commission recommended that INTERPOL delete the data concerned.

• INTERPOL’s General Secretariat has informed all INTERPOL National Central Bureaus that the data has been deleted from INTERPOL’s files.

• All NCBs have been instructed to update their national databases to reflect the removal of the Kholdonyaks’ data.

The CCF’s decision in the Kholodnyak’s case was additionally significant because the notices not only significantly affected their business interests, but they also posed a problem for their immigration cases in the United States.  With the removal of the notices, the brothers face one less impediment to achieving their immigration goals, and they are free to pursue their professional and personal lives. Additionally, their cases received some negative and seemingly biased media coverage, so the removal of the Red Notices brought a sense of vindication as well.

As always, thoughts and comments are welcomed.

* These changes will be addressed in the coming posts.

*Information published here with clients’ consent.

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.