Politically Based Red Notices

INTERPOL has removed the Red Notice in the name of Ex-Ukrainian president Victor Yanukovych from its website.    The removal of a name from INTERPOL’s online wanted pages is not indicative of a final decision, but it is significant.

In 2014, likely due to the public nature of the case, INTERPOL took the unusual step of publicizing the fact that it was reviewing the Ukrainian Red Notice request for Mr. Yanukovych.

Earlier this year, INTERPOL reportedly agreed to issue the Red Notice, based on charges of embezzling public funds. Mr. Yanukovych challenged the notice, and today it was announced that his name no longer appears on the online wanted list.  Mr. Yanukovych’s attorneys reportedly took the position that the Red Notice should be removed because the underlying criminal charges were part of a pattern of political persecution against him.

Mr. Yanukovych is no doubt encouraged by the report that Interpol suspended the Red Notice; removed the extract of the Red Notice showing Yanukovych as a “wanted person” from the Interpol website; and blocked access of Interpol member countries to Interpol data concerning him.  While a suspension is not a permanent removal, it is a good sign that the matter is being seriously considered by the CCF, and that it may be permanently deleted from INTERPOL’s files.

As always, comments and thoughts are welcomed.

 

The CCF’s Decision

According to a press release issued by the William Browder camp today, INTERPOL has decided -again- to reject Russia’s request to list him as a wanted suspect in INTERPOL’s databases.   This means that the CCF (Commission for the Control of INTERPOL’S Files) considered Russia’s request to have Mr. Browder listed as an internationally wanted fugitive in INTERPOL’s databases, and the CCF said no.  This is the third denial of a Browder-based request by Russia, and is hopefully the last.

INTERPOL has not yet published a statement about its decision, but given the high level of publicity of this case and INTERPOL’s decision to speak publicly in the past regarding the case, a forthcoming statement seems likely.

Mr. Browder’s Case

Mr. Browder’s case is by now very well-known in the international community and has been the subject of extensive media coverage as well as national legisltation in both the United States, which passed the Sergei Magnitsky Act, and in Russia, which passed the retaliatory Dima Yakovlev law.

The case has all the makings of a best-selling thriller: international politics, money, power, intimidation, corruption, and violence. If only  it were just a novel.  Tragically, Mr. Browder and his former attorney, Sergei Magnitsky, personally suffered through every detail of this case, with Mr. Magnisky paying the ultimate price for his role: his life.  Mr. Magnistky’s involvement began when he acted as a whistleblower and reported a tax scam to Russian authorities.  He was later arrested, detained, and charged with fraud; he died under mysterious circumstances nine months later.

In response to his lawyer’s death, Mr. Browder brought the full and considerable weight of his influence down against Russian authorities and individuals in every possible way, chief among which was his effective lobbying of the U.S. Congress to pass legislation condemnig the acts of those believed to have been assiociated with Mr. Magnistky’s death. The effect of the Act was to prohibit those individuals from entering the United States and from using the U.S. banking system.

Mr. Browder was then charged with tax evasion and fraud by Russian officials; shortly thereafter, Russia began a relentless campaign to use INTERPOL in its efforts to capture Mr. Browder.

What the decision says about the CCF’s process and independence

Russian officials, including President Putin, reportedly went to great lengths to obtain a Red Notice against Mr. Browder. After the CCF accepted the case for consideration for a third time, President Putin met with past Secretary General Ronald Noble this past October.  INTERPOL characterized the meeting as an effort to focus on areas where collaboration must continue between INTERPOL and its member countries, though it seemed impossible to resist speculating that Putin would attempt to engage in lobbying efforts about Mr. Browder’s case.  Additionally, the Browder press release alleges that Russia attempted to influence the CCF’s position by lobbying for sympathetic INTERPOL member countries to be appointed to the Executive Committee, as well as by appealing to INTERPOL to have re-opened the case in the first place.

 The CCF is publicly represented as the independent review body of INTERPOL.  From my experience, the CCF does jealously guard its independence.  Clients who have come to me with stories of well-connected and influential contacts who have attempted to intervene in Red Notice cases generally, and politely, have been told by the CCF to follow the CCF’s rules when seeking relief.  This has been true for ambassadors, former heads of state, current legislators, and the like.  Nonetheless, INTERPOL’s decision to re-consider this case did give one pause.

On the issue of influence, any observers of President Putin and his efforts to achieve his goals must recognize that Russia’s efforts to obtain a Red Notice against Mr. Browder had to have been formidable.

And the CCF did not capitulate.  Congratulations to the CCF for a job well done; and to Mr. Browder and his legal team for their perseverance.

Going forward: William Browder and other victims of corrupt INTERPOL member countries 

In the next post, I’ll address the collateral toll taken on individuals who have been persecuted by corrupt INTERPOL member countries, and how a “regular Joe” might fare in circumstances that Mr. Browder has endured.

As always, thoughts and comments are welcomed.

 

 

It would seem to all observers of the William Browder case that INTERPOL’s most recent consideration of Russia’s request to issue a Red Notice against Mr. Browder would result in a swift denial, that has not happened.

Instead, INTERPOL is taking its time in issuing a decision on the matter, and has not issued any indication of what its decision might be, as reported here.  INTERPOL’s reconsideration of the case was previously discussed in this blog;  and INTERPOL has previously issued public statements on the matter not just once, but twice. The organization found that Russia’s request was predominantly political in nature and therefore INTERPOL was prohibited from being involved in the case.

Given INTERPOL’s former statements on the case and Russia’s colossal judicial corruption problems, it is difficult to imagine that INTERPOL would change course at this point.

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.

Russia’s requests for Red Notices have been the subject of significant media coverage in the last two years.  Most recently, INTERPOL reportedly refused to issue a Red Notices for Ihor Kolomoisky, who is accused of masterminding murders, using prohibited methods and means of warfare, abduction, and other crimes linked to the armed conflict in the southeastern regions of Ukraine.  He is also allegedly financing the Right Sector, a nationalist party in Ukraine.

Similarly, INTERPOL has refused to issue Russia’s Notice request for businessman William Browder, as discussed here.   In both cases, INTERPOL’s refusal to issue the Notices was reportedly based on their political nature.

However, not every case with a political element is rejected by INTERPOL.  Earlier this year, INTERPOL published a Red Notice in the name of Dimitriy Yarosh.  Yarosh also supports the Right Sector, and the underlying charges for the Red Notice are directly related to his political goal of fighting against the Russian occupation of Ukraine.  Russian authorities allege that he has committed “extremist” and “terrorist” actions  in the course of his political activity.

So why does INTERPOL accept and publish one Red Notice that has political elements, but reject another?  The reason is that Article 3 of INTERPOL’s constitution only prohibits the organization from becoming involved with matters that are predominantly political.  Where an issue has a political component but is predominantly criminal, INTERPOL interprets the issue’s nature to be criminal, and not political for purposes of its involvment.  INTERPOL specifically notes that, as criminal activity and legal matters continue to evolve, analysis of political issues evolves as well, particularly with respect to terrorism charges:

Notably, INTERPOL’s General Assembly concluded that the application of Article 3 does not necessarily prevent the Organization from providing support in the field of counter-terrorism.

It seems clear that accusations of terrorist actions will likely survive a political motivation analysis and will result in a Red Notice being issued when requested by an INTERPOL member country.  Based on the decisions mentioned above, INTERPOL found Kolomoisky’s accusations, which involve violent acts, to be predominantly political.  Yarosh’s accusations, on the other hand, which involve violence and terrorism, were found to be predominantly criminal.

Other crimes, such as financial crimes, are widely known to be the type that are most often used by controlling governmental authorities to discourage opposition and are more likely to be recognized as predominantly politically motivated by INTERPOL.

In the next post, I’ll talk about the relationship between INTERPOL’s determination that a case is politically motivated and an extradition court’s determination of the same issue.

As always, thoughts and comments are welcomed.

In the last post, I discussed the endemic corruption in Russia’s courts and the need for INTERPOL’s heightened scrutiny of Russia’s Red Notice requests.  Today’s focus is on the reason that some litigants fare much worse than others in Russia’s courts, and how that affects INTERPOL.

While Russians generally seem to agree that basic, low-level civil disputes between similarly-situated litigants are commonly handled in Russian courts with an efficient turnaround time and relatively fair resolutions, disputes between individuals with differing levels of power are another matter entirely.

Last year, Reuters reporter Danielle Wiener-Bronner explained the reason for this distinction in her article, “The Russian legal system’s split personality.”  Complainants in Russia understand that more powerful litigants have both the ability to influence the judiciary and the confidence to litigate in court knowing that their influential efforts are likely to succeed.  The “more powerful litigants” may be wealthy individuals or officials within the Russian government. This influential ability extends to criminal cases as well, as has been addressed in this blog previously here

Recent news from Russia appears to confirm that Russian authorities continue to use the courts for political purposes.  The Wall Street journal reported in June that Russian authorities filed criminal fraud charges against three supporters of opposition candidate Alexei Navalny.  

Criminal charges have also been filed against Gleb Fetisov, a Russian businessman and billionaire.  In a case that echoes many Red Notice cases from Venezuela and Ecuador, financial charges were filed against him after a bank he no longer owns was accused of failing to maintain liquidity in a manner that would allow it to meet its financial obligations. Fesitov has supported opposition party leaders, which is not surprising in Red Notice cases, but is unusual for most wealthy individuals in Russia.  There is reportedly an “unspoken agreement that the rich don’t support the opposition,” and Fesitov supporters believe that his criminal case is a consequence of his political activity.

Another current example of Russia’s request for Red Notices in political-or business-based cases is that of Nikolay Koblyakov. The Telegraph reporter Peter Oborne described the case as follows:

On returning to Russia, [Koblyakov] started a chain of care homes for the elderly which seem to have been both compassionate and profitable. As so often happens in Russia, competitors with the backing of the regime forced him out of business.

Since then, Mr Koblyakov has lived in Paris, where he was a founding member of Russie-Libertés, an NGO that campaigns for Russian democracy. He participated in protests involving Free Pussy Riot, the controversial 2014 Winter Olympics in Sochi and a demonstration under Ukranian flags outside the National Assembly in Paris on the night of Putin’s D-Day anniversary dinner with President Hollande.

Mr. Koblyakov now faces criminal charges; his extradition hearing in Bulgaria has been continued until October, and his request to leave the country temporarily was denied.

When these types of cases create the basis for Red Notices, INTERPOL is left to sift through the evidence presented by the Red Notice subject and decide whether to hold Russia accountable for its historic and current corruption problem, or whether to turn a blind eye and to trust that Russia is abiding by its obligations as an INTERPOL member country.  Based on the news out of Russia lately, it seems that INTERPOL will have ever-growing opportunities to make those decisions. 

As always, comments and thoughts are welcomed.

 

 

INTERPOL has received improper requests for Red Notices from Russia in the past, and all current indicators point to a worsening of the situation rather than an improvement.

Russia is an INTERPOL member country and is currently ranked 28 on Transparency International’s corruption index.  A score of 28 means that Transparency International has determined that Russia is close to the “highly corrupt” end of the corruption scale, and is more corrupt than 126 other evaluated countries. NGO Freedom House rated Russia’s political rights at a 6 out of 7 (a 7 is the worst on the scale).  Amnesty International has found that,

Despite ongoing attempts to improve the efficiency and independence of the judiciary, alleged political interference, corruption and the collusion of judges, prosecutors and law enforcement officials continued to result in frequent reports of unfair trials.

Individuals are not the only victims of corruption in Russia.  Companies are also frequently targeted by Russian officials.  Jens Berthelsen, an anti-corruption specialist who prepares companies for doing business in Russia, was quoted in CNBC’s “Is Russia Too Corrupt for International Business” about the plight of business entities in Russia:

 Companies often face extortion or have court cases brought against them.

Based on the deeply entrenched corruption in Russia’s court and political systems, it would seem that the country would be a great candidate for INTERPOL’s list of problem members.  INTERPOL has recognized in the past that certain of its member countries were abusive (my word) of INTERPOL’s tools.  For example, INTERPOL’s Secretary General visited Venezuela in 2011 and the organization engaged in significant efforts to open “direct channels of communication between Venezuela’s Fiscalia and INTERPOL’s Office of Legal Affairs” (INTERPOL’s words).  Following INTERPOL’s recognition of certain member countries’ abusive INTERPOL activity, it has appeared from the practicioner’s perspective that INTERPOL has viewed Red Notices from those countries with a more skeptical eye than before.

And that may already be the case with Russia.  In terms of high-profile cases, INTERPOL has refused to issue Red Notice requests where issuing the Notices would violate its rules.  Where the cases are less publicized, however, we should expect that INTERPOL will review the Notices only upon the request of the Red Notice subjects and/or their attorneys.

In the next post, I’ll address the issue of Russia’s “two parallel court systems” for run-of-the-mill cases and cases with litigants having extreme power differentials.

As always, thoughts and comments are welcomed.

Russia’s preoccupation with obtaining a Red Notice against William Browder continues.  I first addressed this issue here.  For those who haven’t followed the case, William Browder is the chief executive officer and co-founder of the investment fund Hermitage Capital Management, and a noted critic of Vladimir Putin.  When his attorney, Sergei Magnitsky, allegedly uncovered and reported a massive tax refund fraud in Russia, Magnitsky was detained and charged with what Browder and others consider to be retaliatory charges. Magnitsky died while he was detained.  

Russian authorities initially circulated a diffusion in Browder’s name, and later sought his location and arrest through INTERPOL’s channels, presumably in the form of a Red Notice.

In May of last year, INTERPOL took the fairly unusual step of issuing a public statement regarding its decision on the diffusion in the Browder case.  It considered the case to be predominantly political in nature.

Russia later made a second request for INTERPOL’s assistance in locating and arresting Mr. Browder based on new charges.  In response, INTERPOL issued a second statement which characterized the “new” charges of “qualified swindling” against Mr. Browder as being covered by its previous decision.  Interestingly enough, INTERPOL’s statement led with the caption:

INTERPOL cannot be used by the Russian Federation to seek the arrest of Mr William Browder

Despite that decision, Russia has now requested for the third time that INTERPOL become involved in the Browder case.  The Prosecutor General of the Russian Federation issued a statement on June 19, 2014, asserting that the Commission for the Control of INTERPOL’s files agreed to reconsider the question of the international search for Browder.  Whether that statement is valid remains to be seen.

As always, thoughts and comments are welcomed.

 

The Egyptian justice system continues to suffer from the absence of basic due process, and we continue to see example after example of cases wherein defendants receive no protection from unfair trial proceedings.  First, a look at the cases, and then, why it matters to INTERPOL:

Last month, Human Rights Watch issued a report condemning the judicial proceedings in Egypt wherein the court sentenced multiple defendants to death after their trial:  

The March 22, 2014, trial, in which the vast majority of defendants were tried in absentia, took place in under an hour. The prosecution did not put forward evidence implicating any individual defendant, even though it had compiled significant evidence during its investigations, and the court prevented defense lawyers from presenting their case or calling witnesses, three of the defense lawyers told Human Rights Watch. A second summary session was held two days later solely to announce the verdict…

It’s shocking even amid Egypt’s deep political repression that a court has sentenced 529 people to death without giving them any meaningful opportunity to defend themselves,”

– Sarah Leah Whitson, Middle East director of Human Rights Watch.

This month, David Kirkpatrick of the New York Times reports that three journalists currently on trial (for conspiring to broadcast false reports about civil strife in Egypt) were witnesses to the prosecutors’ absolute lack of evidence in their cases.  The article, here, describes how prosecutors presented the court with video, previously represented as the basis for the charges, when in fact the video showed “family photographs, trotting horses and Somali refugees in Kenya.”

In another article describing the trial, Dan Bloom and David Williams write for the Daily Mail that the judge dismissed the evidence as being irrelevant, but still refused to grant bond to the defendants.  The five defendants who were present for trial appeared in cages and openly argued along with their attorneys against the seemingly ridiculous evidence that was presented against them.

Journalists appear in cages for Egyptian trial

Amnesty International criticized the trial as “vindictive persecution of journalists for merely doing their jobs.”

It’s difficult to imagine more compelling grounds for dismissing Egypt’s current judiciary as completely out of compliance with the Universal Declaration of Human Rights, as well as its own domestic laws.  As an INTERPOL member country, Egypt is bound to comply with both of those standards, as well as with INTERPOL’s governing rules.

In the face of such abuse of due process and basic standards of fairness, INTERPOL is bound to divorce itself from any of Egypt’s requests for assistance in apprehending fugitives until the country presents clear and consistent evidence that it is materially reforming its justice system.  Otherwise, INTERPOL risks losing any credibility as a protector of individual rights, and also renders meaningless its previous assurances that it requires member countries to comply with both domestic and applicable international law.

As always, thoughts and comments are welcomed. 

At a time when so many Venezuelans are suffering through political, economic, and social upheaval and violence, it can seem hard to come by good news.  Today, however, we do have some very good news.

Gilberto Jesus Imery Gonzalez, a Venezuelan national and businessman currently living in the United States, has prevailed in having his name removed from INTERPOL’s Red Notice list after being falsely charged with a financial crime by the Venezuelan government.  His story in this blog’s sidebar marked, “Press Release: Gilberto Imery.”

As always, thoughts and comments are welcomed.