(This is the second of a two-part series by Michelle Estlund, principal at Estlund Law, in Miami, on the assistance that the multinational organization known as Interpol provides in combating financial crime, apprehending perpetrators and recovering stolen assets. Part I provides insight into the work of Interpol and the purpose of its multicolored Notices. Ms. Estlund, who devotes her unique practice to Interpol matters and criminal defense, represents persons who are subjects of Interpol Red Notices and advises attorneys on Interpol-related issues. Her blog is found at at www.rednoticelawjournal.com.)
Once, business leaders had little reason to think of Interpol. If a financial institution or person became the victim of a financial crime, the prosecution was typically handled domestically. If the suspect fled the country, extradition was difficult, cumbersome and often unsuccessful.
That is no longer true. As the world shrinks and travel increases, the role of Interpol in apprehending criminal suspects has grown dramatically. Interpol receives requests for assistance in apprehending persons accused of a variety of financial crimes, in addition to violent crimes, terrorism and human trafficking.
Role of Interpol in apprehending financial criminals
When the financial crime victim is the government, such as in the case of government program fraud or tax evasion, the prosecution need not worry about the cooperation of the victim and is free to focus on strengthening the evidence. Once the case is ready and charges are filed, the apprehension of the suspect becomes the primary goal. Many government agencies, such as the IRS, which are victimized by financial criminals who have fled the country, know the steps that must be taken to enlist Interpol’s help.
Every Interpol member nation has a designated National Central Bureau (NCB) that acts as liaison with Interpol. Law enforcement agencies enlist Interpol’s assistance by using protocols to process requests through their respective NCBs. The NCB may request an Interpol Red Notice — a type of “BOLO,” or beon-the-lookout — when a suspect has fled a country where he is wanted.
To obtain a Red Notice, the local law enforcement agency must complete a Red Notice application form, such as this sample form that is used in the United States. Once completed, the agency submits it to the NCB. The NCB completes its own Red Notice request and sends it to Interpol in Lyon.
A review of some published Red Notices shows that financial crimes against the government are often the underlying offenses that prompted Red Notices.
Use of Red Notices in private sector cases
Financial crime victims may be private sector organizations and individuals, of course. A simple example is a bank that has been victimized by an employee who embezzled funds and fled the country. The moment the victim has reason to believe a suspect has absconded, it should request that law enforcement officials seek Interpol’s involvement. Interpol does not accept requests from private individuals, but a private sector victim can influence the promptness of a government agency in seeking the capture of the alleged perpetrator. It is axiomatic that the success of a prosecution often hinges on the victim’s availability, cooperation and dedication to the case. The greater the involvement of the victim, the higher the likelihood of a successful prosecution. A “good victim” should do the following:
• Be organized with documents, timetables, data, and factual knowledge,
• Be proactive and not afraid of calling to remind the individuals in a case that you appreciate periodic updates or that you have new information,
• Behave properly and appropriately because nothing hurts a prosecution more than a victim who lacks credibility or clean hands,
To assure that Interpol becomes involved, a victim should ask the prosecutor or law enforcement agents for its help. The unsettling truth is that not every law enforcement agent utilizes, or knows about, access to Interpol. This 2009 report by the US NCB, which is housed in the US Department of Justice, makes the point effectively.
Challenges to the Red Notice by the subject
A subject of a Red Notice may challenge it. That one has been issued does not necessarily mean the suspect will be extradited to face charges. Persons who are Red Notice subjects usually challenge the notice when they believe the:
• Underlying motivation of the notice is political and not criminal,
• Rule of law was not followed in the member country that requested the Notice,
• Matter is primarily civil in nature.
After a challenge, if a Red Notice is removed from circulation, Interpol withdraws from assisting in the detention or extradition of a suspect.
To avoid a successful challenge to a Red Notice, a member country must ensure that:
• The investigation of the underlying crime and the charging decision comply with domestic laws,
• The decision to seek the Red Notice is based primarily on the need to prosecute a crime rather than a desire to achieve a political goal,
• The country complied with all relevant treaties and conventions in applying for the Red Notice.
Victims are much more likely to have difficulty obtaining and maintaining Red Notices when they have been victimized in corrupt countries. The more corrupt the country in which a business chooses to do business, the greater the likelihood that the perpetrator will go unapprehended, that victim’s losses will go unrecovered — and that a Red Notice will be withdrawn or never issued at all.
Persons wishing to evaluate the corruption level of a country may check resources such as:
• The U.S. Department of State Country Report for the subject country, with attention to the “Official Corruption” section, http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrapper
Reviewing this information and analyzing the costs and benefits of conducting business in a given country may also serve to prevent financial crime victimization in the first place.