In the last post, I discussed INTERPOL’s refusal to issue certain Red Notices based on INTERPOL’s determination that the Red Notice requests were predominantly political in nature. INTERPOL’s constitution specifically prohibits the organization’s involvement in matters of a political nature, so even where there is a criminal element to the request, if the overriding element is political, the request will be denied by INTERPOL.
So what happens when INTERPOL recognizes a particular criminal charge as being politically motivated, and refuses to issue a Red Notice, but the accused person finds himself faced with extradition proceedings? If INTERPOL has characterized a charge as being politically motivated, is a court bound by that finding when it determines extraditability?
When courts hold extradition hearings, the issues before the court are normally quite limited. The court will likely consider whether dual criminality exists, whether a valid treaty exists and applies, whether any exceptions to the treaty are relevant, and whether there is a basis (be it probable cause or another standard) for the underlying charges. Most extradition treaties contain an exception for politically based offenses, and if the court finds that a charge fits that exception, it will deny the extradition request.
A court is not bound by INTERPOL’s findings, as noted by INTERPOL in its public statement on the issue:
. . . INTERPOL may refuse to process a request on the basis of Article 3, but States alone have the sovereign right to determine whether an offence is political (in the context of extradition proceedings for instance).
For example, if the Organization agrees to record a request from a Member State in its database, another Member State is nonetheless completely free to consider that the charges are for political offences. If INTERPOL refuses to record a request which it considers contrary to Article 3, the requesting Member State may forward its request through any channel other than INTERPOL’s.
However, the court is obviously entitled to rely upon INTERPOL’s decision as persuasive authority, just as it could for non-binding judicial decisions or for any other secondary authority. Because of the fact that most courts have relatively less experience with claims of political motivation than does INTERPOL, it makes sense that they would look to an INTERPOL decision for guidance when making such decisions. Given that those decisions are usually not published, it would be the responsibility of the attorneys to make the court aware of INTERPOL’s decision her client’s case.
As always, thoughts and comments are welcomed.