Red Notice  Law Journal

Red Notice Law Journal

Red Notices, International Extradition, and Perspective

The CCF uses tough love on INTERPOL’s National Central Bureaus

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

Under the leadership of its current Chairman,  Vitalie Pirlog, the Commission for the Control of INTERPOL’s Files (“CCF”) has proven in this year’s decisions that it is serious about holding National Central Bureaus to their obligations under INTERPOL’s rules.

In his speech at this year’s General Assembly, Chairman Pirlog reminded INTERPOL’s membership that the CCF often seeks information from their National Central Bureaus (“NCBs”). These responses are essential to the CCF’s ability to make decisions about requests for removal of Red Notices from the requesting country. Mr. Pirlog reminded member countries that timely responses were particularly important, given the CCF’s new statute that generally requires a response to be issued within four to nine months.

INTERPOL has always provided the required assistance to its members’ NCBs, but historically, the NCBs have not always been strictly observant of their duties to provided requested information, or to provide it timely. The CCF has apparently had enough of that, and is holding the members countries’ NCB’s feet to the fire.

Based on the CCF’s decision letters that have been received by this practitioner, it is clear that:

  • The CCF is generally adhering to the new time limitations for issuing decisions, with some decisions being issued even earlier than required;
  • The CCF is demanding cooperation from National Central Bureaus, and when they do not respond in a timely fashion, the CCF is proceeding to make a decision based on the information it has, rather than waiting or continuing the matter until the NCB provides a full response; and
  •  The decisions being issued by the CCF are generally accompanied by a reasoned explanation, detailing the Commission’s steps and considerations taken in reaching its decision.

These factors are critical to the CCF’s efforts at demonstrating transparency, and allow applicants to both appreciate the nature of the process, as well as to recognize that they were given a “fair shake” in INTERPOL’s processes. One would hope that the more lax NCBs recognize the shift in culture at the CCF, and become more compliant as a result. Whether they do or not, the CCF will benefit from the fact that it is protecting INTERPOL’s interests in transparency and the furtherance of human rights.

As always, thoughts and comments are welcomed.

Turkey continues to challenge INTERPOL by abusing its Red Notice system

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

Last month, a Swedish journalist of Turkish descent, Hamza Yalçin was finally released from detention in a Spanish jail awaiting an  extradition decision. Turkey has requested and received an INTERPOL Red Notice based upon an underlying charge of “terrorism” and insulting the Turkish president.

If he had been extradited, Mr. Yalçin would have faced over 22 years in prison for insulting the president of Turkey.  The journalist reportedly received asylum from Sweden many years ago based on his previous political activity in Turkey.   The facts that Mr.  Yalçin is a journalist and that he is an asylee from Turkey both render the Red Notice against him rather curious: INTERPOL has a policy in place that was enacted for the purpose of protecting asylees from further political persecution by the countries from which they fled, and notices against journalists are often requested based on their criticism of the requesting regime.

This is not the first time that Turkey has utilized its access to INTERPOL’s tools to aid in the prosecution of a journalist.  Earlier this year, German Chancellor Angela Merkel noted that Germany has had to modify its policies in dealing with Turkey, and that such abuses against journalists and critics cannot be tolerated.

Yalçin was released late last month, but not because the Red Notice was dropped: he reportedly was released because Spanish law did not allow for the extradition of  an asylee.

INTERPOL has an opportunity to highlight its commitment to human rights by subjecting Turkish Red Notice requests to additional scrutiny before issuing them, particularly where the subject is an author or journalist.

As always, thoughts and comments are welcomed.

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.