Red Notice  Law Journal

Red Notice Law Journal

Red Notices, International Extradition, and Perspective

INTERPOL and child kidnapping cases- what are INTERPOL’s abilities and limitations?

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

A reader recently contacted Red Notice Law Journal to inquire about INTERPOL’s role in child kidnapping cases. This question  is unfortunately more common than one might imagine, and is likely to become more so as we continue to evolve into a more and more transient world.

INTERPOL’s involvement in child kidnapping, or abduction, cases, primarily involves Red Notices for the person accused of wrongfully taking the child out of an INTERPOL member country, and Yellow Notices for the child who is thought to have been wrongfully taken.

A Red Notice is issued when a person is wanted for a crime. This means that, until an arrest warrant (or its equivalent) for a criminal act has been issued for a person accused of kidnapping a child, INTERPOL cannot be used to assist in finding the accused person.

A Yellow Notice is issued for missing persons who have been kidnapped or have disappeared without explanation. No criminal charge is necessarily required for this type of notice to be issued regarding a missing child. For parents seeking the whereabouts of their children, even if there is no actual criminal charge pending against anyone for taking the child, a Yellow Notice may be requested through local law enforcement authorities.

Certainly, there are times when a Red Notice is improperly requested by a parent with the assistance of local law enforcement, often when a custodial parent has moved in compliance with a court order out of the country. In such instances, local law enforcement and INTERPOL may have no way of knowing that the Red Notice request was improperly requested until the custodial parent learns of the notice and informs INTERPOL of the actual nature of the case.

As always, thoughts and comments are welcomed.

INTERPOL and security checks from the U.A.E. and other Middle Eastern countries

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

We continue to receive reports, like this one, of individuals who are wanted in the United Arab Emirates or other areas in the Middle East, for bounced security checks. I addressed the basics of this issue in a previous post, here.  At the time, it appeared that efforts to bring this matter to the forefront, led by multiple attorneys such as Radha Stirling and those at Fair Trials International, would lead to a resolution of these types of notices. While we have all had success in handling the Red Notices stemming from bounced security checks, here we are several years later with this issue is still lingering, causing incredible hardships for the subjects of the Red Notices.

The use of security checks in the Middle East

In many countries in the Middle East, where established credit verification mechanisms are still in development or are not widely used in the same manner as other parts of the world, financial institutions require the individual seeking the mortgage loan to execute an undated security check in the full amount of the mortgage. It is understood by all parties that the borrower does not have the full amount of the check in the bank.  If the mortgage payment is missed, the financial institution will deposit the check, which will “bounce,” or be returned for insufficient funds, and the institution will then foreclose on the property.

However, it also eventually became the practice of many financial institutions in the Middle East to also refer the check to the local police for criminal prosecution, despite the lack of evidence of any fraudulent or criminal intent. The property is then reverted back to the financial institution’s possession. If the borrower is not in the country, a Red Notice is often requested to aid in criminal prosecution.

As a result of this practice, many foreign nationals who are relocated by their employers, or who are forced to leave the country when they lose their jobs, and thus their legal status, find themselves in the situation where they no longer have the income that allowed them to qualify for the mortgage loan, and can no longer legally live or work in the country, but are being pursued for criminal charges that they have no way of resolving.

Request to INTERPOL for a policy statement

Earlier this month, I made a request for a policy statement on this issue to INTERPOL. The request was acknowledged and we now await the statement. It is important that INTERPOL issue a public statement regarding its stance on this issue, lest private financial institutions continue utilizing even the threat of INTERPOL involvement in cases where such involvement is improper.

It is critical for both INTERPOL and its member countries that INTERPOL’s tools not be used for improperly based charges, and that INTERPOL be utilized as an effective law enforcment organization, rather than a debt collection agency for certain member countries.

As always, thoughts and comments are welcomed.

 

INTERPOL Red Notices – what does it mean when a notice is removed from the website?

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

INTERPOL’s website contains a search page for wanted persons. A reader recently sent in a commonly posed question about those notices:

I have a query regarding Red Notices. If the information about a person against whom a red notice has been issued is no longer published on INTERPOL’s public website, does that mean that the red notice no longer exits? Also, is there any way of knowing the status of such a red notice?

When a notice that was once shown on INTERPOL’s website no longer appears there, it could be for several reasons:

  • The notice has been withdrawn by the member country that originally requested it.
  • The member country has requested that the notice remain active, but no longer be published on the website.
  • The CCF has taken the case under consideration and INTERPOL has removed the notice while the matter is pending.
  • The notice has been removed.

Under some circumstances, but not all, INTERPOL will explain the reason that the notice no longer appears. The CCF will always send a letter in response to a request for information, but only when the request meets the CCF’s criteria for a substantive response will one be given.

As always, thoughts and comments are welcomed.

INTERPOL’s CCF – how and when attorneys can have a second chance at obtaining a favorable CCF decision for their Red Notice clients (Part 3 of RNLJ’s New Rules series)

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

In this series, Red Notice Law Journal addresses the changes created by the newly enacted CCF statute. Many of the changes are reflective of those requested by INTERPOL practitioners and by human rights organizations in the last several years. For example, Fair Trials International provided input that was instrumental in advocating for INTERPOL reform, and many of its recommendations made their way into the new statute.

As an attorney representing clients who have been frustrated in the past by the perception of a lack of clarity and transparency in the CCF’s processes, I have also recommended changes to the CCF’s response format and the depth of information and transparency contained in those responses. The CCF’s new statutory obligation to publish its decisions, as discussed here, is one of the most welcome changes of all.

In addition to the CCF embracing its own new obligations under the statute, the CCF is also now more clear about one of the obligations of Red Notice subjects seeking relief from the CCF after previously being denied relief from the organization. Previously, the applicable rules only made reference to a general notion, addressed here, that successive requests for relief could be denied if they were deemed substantially similar to previous requests or if the CCF viewed the requests as being abusive of the CCF’s processes.

Now, however, the statute provides a clear statement of how successive requests will be reviewed, or not. Article 42 of the statute provides that

(1) Applications for the revision of decisions of
the Requests Chamber may be made only
when they are based on the discovery of facts
which could have led the Requests Chamber
to a different conclusion if that fact had been
known at the time at which the request was
being processed.
(2) Applications for revision must be made within
six months after the discovery of the fact.

The applicant therefore has clear guidance as to when a renewed request is admissible and when it is not. This specification obviously places a burden on the applicant, but every legal or quasi-legal body has procedural requirements, and the fact that individuals who apply to the CCF for relief now have more clear guidance renders the process more predictable, and therefore, more fair.

As always questions or comments are welcomed.

 

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.