Collateral Effects of Red Notices

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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.

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.

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.

 

This May, INTERPOL announced its new policy on its treatment of Red Notice subjects with refugee status.  The policy is addressed in detail here by Fair Trials International.  Fair Trials and the Open Dialog Foundation are among the organizations that have advocated for reform of INTERPOL’s policies regarding those individuals who have been granted refugee status, but who are also listed as wanted subjects in INTERPOL’s databases.

In May, INTERPOL had not yet publicized the manner in which its policy would be implemented.  Now, however, the organization has provided some level of detail as to how refugee cases will be processed.  For example, INTERPOL has provided the generally applicable guidelines indicating that the processing of Red Notices and diffusions against refugees will not be allowed if:

  • the status of refugee or asylum-seeker has been confirmed;
  • the notice or diffusion has been requested by the country where the individual fears prosecution;
  • the granting of the refugee status is not based on political grounds in relation to the requesting country.

INTERPOL advises that the objective of the new policy is

“to support member countries in preventing criminals from abusing refugee status, while providing adequate and effective safeguards to protect the rights of refugees, as guaranteed under the 1951 Convention relating to the Status of Refugees and other applicable conventions.”

Naturally, it will take time to see how the policy is implemented in practice, and it may be anticipated that the policy takes on nuances over time. For now, however, the implementation of the policy and the fact that there are guidelines in place for its use are both favorable facts for refugees who have been immobilized based on their status as Red Notice subjects.

Also, many thanks to Fair Trials and Open Dialogue for their continued efforts toward achieving due process for criminally accused individuals.  INTERPOL is also to be commended for its willingness to study this important issue and to take action to make changes where needed.

As always, thoughts and comments are welcomed.

 

 

INTERPOL is shocked, shocked, to find that FIFA might be connected to corrupt activity.

Last week, I addressed INTERPOL’s listing of several individuals who are wanted for prosecution by the United States for FIFA-related financial crimes.  That post is here.  In light of those listings, RNLJ requested INTERPOL’s verification of reports that INTERPOL was reviewing its existing financial arrangement with FIFA, wherein FIFA had pledged 20 million euros to the organization over a period of years to aid in the fight against match-fixing.

In fact, INTERPOL responded to our request with a confirmation that the organization had not only reviewed its agreement with FIFA, but had come to a decision to suspend the use of funds provided under the agreement until further notice.  INTERPOL also made a public statement regarding the decision:

INTERPOL is announcing the suspension of its agreement with FIFA following investigations into corruption against football’s governing body.

Under a May 2011 agreement, INTERPOL received a donation from FIFA worth EUR 20 million to create a 10-year Integrity in Sport programme.

The decision by INTERPOL Secretatry General Jürgen Stock will see the world police body freeze the use of financial contributions from FIFA.

INTERPOL’s Executive Committee endorsed the decision at its three-day (10 -12 June) meeting at the General Secretariat headquarters in Lyon, France.

The agreement with FIFA includes a clause which states that ‘the Funding Party declares notably that its activities are compatible with the principles, aims and activities of INTERPOL’.

“In light of the current context surrounding FIFA, while INTERPOL is still committed to developing our Integrity in Sport programme, I have decided to suspend the agreement,” said Secretary General Stock.

“All external partners, whether public or private, must share the fundamental values and principles of the Organization, as well as those of the wider law enforcement community,” added Mr Stock.

INTERPOL’s Integrity in Sport programme has helped international efforts across its 190 member countries to prevent the manipulation of sporting events and illegal gambling by criminal groups. Their ongoing criminal activities require a global response.

INTERPOL continues to closely monitor developments involving FIFA.

 Note that INTERPOL did not say that it is returning any of the funds, rather the agreement has been suspended.  With time, the organization may decide to keep any funds that it has received thus far from FIFA, or the Executive Committee may feel compelled to return the funds depending on what other information comes to light.

Interestingly enough, INTERPOL may find itself in the same position of many Red Notice subjects who have done business with alleged criminals:  it has received funds in furtherance of a particular initiative, and those funds are later found to have a possible connection with illegal activity.  A private individual may find himself subject to the “knew or should have known” standard when it comes to prosecution for financial crimes.  Based on the developments related to the U.S.-based prosecution and the information that is now publicly available, INTERPOL may find itself answering questions about whether it knew or should have known that the anti-corruption funds it received from FIFA may have been related to illegal activity.

As always, thoughts and comments are welcomed.

 

A reader recently sent in an inquiry about the case of Argentina’s scandal involving the death of prosecutor Alberto Nisman, who was shot just one day prior to his scheduled appearance at Argentina’s Congress.  As reported here, Mr. Nisman had filed a criminal complaint that accused Argentine President Cristina Kirchner, Foreign Minister Héctor Timerman and others of conspiring to cover up a probe into Iran’s alleged involvement in the attack on a Jewish community center here that killed 85 people, the worst attack targeting Jews since World War II.

INTERPOL issued Red Notices for several individuals in connection with the attack, as was requested by Argentina’s National Central Bureau.  INTERPOL later issued a statement regarding its efforts to facilitate talks between the two countries to resolve the growing dispute surrounding the notices.

The reader’s inquiry focuses on the agreement that Argentina and Iran later reached:

 Dear Ms. Estlund,

I would very much appreciate your comments on the situation that arose in connection with the red notices requested by Argentina over Iranian nationals under investigation for bombing a Community center in Buenos Aires.

Several years after the red notices were accepted by Interpol, both countries signed a Memorandum of understanding (details here: http://www.viviendoutopias.com/wp-content/2013/03/anexo_II.pdf).

Recently, a prosecutor (who later appeared dead in yet to be determined circumstances) denounced that the Memorandum was actually a plot to exonerate the Iranian nationals through the lifting of the red notices.

The truth is the red notices were never lifted and Argentina never requested it, as Interpol itself declared.

Nonetheless, I read a piece in the news claiming that the communication to Interpol stated in item 7 of the Memorandum can be construed as a basis to allow Iran to request the red notices to be lifted (or suspended or softened in any way), even when no express instructions were given by Argentina.

What’s your opinion on this? Could the communication included in item 7 of the Memorandum have reasonably been intended to allow Iran to attempt to lift the red notices?

The information in item 7 states:

“This agreement, upon its signature, will be jointly sent by both ministers to the Secretary General of Interpol as a fullfillment of Interpol requirements regarding this case.”

Even without an agreement, Iranian officials were free to seek the removal of any Red Notice directly through INTERPOL. Whether INTERPOL agreed to remove the notices or not would depend upon INTERPOL’s view of the case, specifically whether the Red Notices were requested in violation of any of INTERPOL’s governing rules or texts.  Such a direct approach would not at all guarantee the removal of the notices.

The agreement, however, appears to have been directed more toward the two countries’ efforts to resolve the matter in a fashion that awarded each party something of value: Iran presumably wanted the Red Notices lifted, and Argentina wanted something from Iran.  Multiple media outlets have reported that Mr. Nisman said President Kirchner was working behind the scenes to protect the Iranians in return for oil, at a time when the South American country was in the midst of an energy crisis.

In the end, INTERPOL seems to have maintained its position of neutrality, as its constitution mandates.  The question of a resolution to the issues between Argentina and Iran appears to have been put off, at least in the short term, because of the Argentinan public’s outrage about the Kirchner administration’s handling of this case.

As always, thoughts and comments are welcomed.

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.

In the last post, I discussed the case of Carmelo Bruzzese, who is wanted by Italian authorities as a Red Notice subject charged with Mafia association.

Although Bruzzese is living openly in Canada, Canadian authorities have never arrested him for the purpose of initiating extradition proceedings due to a lack of dual criminality of the criminal charges.

Even when a Red Notice subject is not extraditable, for whatever reason, the Red Notice still may serve as a catalyst for him or her to be removed from the country through immigration proceedings. In the case of Bruzzese, he has finally been arrested by Canada’s immigration authorities. He is scheduled to appear before the Immigration and Refugee Board for the purpose of determining whether Italy’s criminal charges should form the basis for Bruzzese’s deportation. If he is deported, he will likely be returned to his country of origin.

A Red Notice subject could also be deemed inadmissible to the country he seeks to enter legally. When a person is determined to be inadmissible, he is normally scheduled for removal from the country.

(Bruzzese is one of several alleged men affiliated with the Calabria-based Mafia organization called the ’Ndrangheta.  Its alleged members reportedly have been arrested this year in Italy, Colombia, the Netherlands, and Germany.)

As always, thoughts and comments are welcomed.

The case of Carmelo Bruzzese provides an interesting example of why Red Notices do not always lead to arrest and extradition, even where the alleged crime is rather serious by most standards.

The National Post reports here that Canadian police did not arrest Bruzzese, although they knew where he was living and that he was wanted by fellow INTERPOL member country Italy. Bruzzese was the subject of a Red Notice, and the underlying crime charged against him was leading the ‘Ndrangheta, the Mafia organization in the Italian region of Calabria.

 A common requirement in extradition treaties is that of dual criminality, meaning that the crime for which one country seeks the extradition of an individual must also be a crime in the country where the individual is currently located. Without dual criminality, extradition proceedings normally will not occur. In Canada, criminal association charges must also be linked to other, overt acts related to the organized crime. Without additional criminal charges, it appears unlikely that Bruzzese’s alleged association with the ‘Ndrangheta will result in extradition.

However, Red Notice activity and extradition are not the only methods available to INTERPOL member countries for effecting one’s exit from the country. In the next post, I’ll discuss some of the options available to immigration officials when dealing with Red Notice subjects.

As always, thoughts and comments are welcomed.