Red Notice Challenges

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Clients frequently ask how they can have an INTERPOL Red Notice if they are not listed on the Wanted page of INTERPOL’s website.

The answer is that the vast majority of Red Notices are unpublished. INTERPOL’s currently available data, here, tells us that

“[t]here are currently approximately 58,000 valid Red Notices, of which some 7,000 are public.”

With less than ten percent of Red Notices being published, this means that approximately 51,000 people are walking around  the globe not knowing that they are listed as wanted in INTERPOL’s databases.

Obviously, it is more efficient for law enforcement officials to apprehend a subject who is unaware that he is being sought and who therefore travels more freely. Those who are publicly listed as wanted may decide to limit their travel or to seek removal of their Red Notices if they were improperly requested.

As always, comments and questions are welcomed.

INTERPOL’s CCF (the Commission for the Control of INTERPOL’s Files) has made its most recent Annual Report available online, here.  In the 2017 Annual Report, which was officially published at the 2018 General Assembly meeting, the CCF covered a variety of topics, from recent statutory changes to the duties of the two chambers.

Among the most interesting topics for an INTERPOL practitioner is the CCF’s treatment of some member countries who have attempted to circumvent the CCF’s rulings on previous cases. In paragraphs 57 and 58 of the report, the Commission recognizes that certain countries do, in fact, violate the spirit and effect of those rulings:

57. Misuse of INTERPOL’s channels: The Commission dealt with cases where the sources of data
have sent a diffusion to INTERPOL members to request the arrest of an individual, whereas a
request for a red notice has previously been refused. It also processed requests which
highlighted the use of the SLTD database where a diffusion or a notice to arrest a person was
considered not to comply with INTERPOL’s rules.
58. These cases raised questions of compliance with INTERPOL’s rules that have been addressed by
the Commission and the General Secretariat. In such cases, the data concerned (if they were
still recorded in INTERPOL’s files when the Commission studied them) are deleted, and the
INTERPOL member countries which received the information are also informed that INTERPOL’s
channels cannot be used in the case concerned.

The good news is that the CCF is acting consistently when it discovers that a member country has improperly utlized a diffusion (which it can circulate itself, without General Secretariat involvement) after a Red Notice has been refused by the General Secretariat.

The bad news is that, in order for these types of violations to be discovered, the unlucky subject of the diffusion often has to discover his or her diffusion status, and this discovery often occurs during travel, and it may lead to detention. Even a brief detention is frightening and disruptive of one’s life.

So the next question is, aside from deleting the diffusion and (again) informing the member country that INTERPOL’s channels cannot be sued in that case, what consequence do these countries face?

As always, comments and questions are welcomed.

One of the most personal aspects of an INTERPOL case concerns a Red Notice subject’s decison about attorney representation. On that topic, a reader sent in the following question:

Can a termination of legal representation of a lawyer after the submission of the application form to the CCF ( deletion request) and before the first review by the Commission of the file automatically lead to the dismissal of the Application on a procedural basis?

This reader has clearly already hired an attorney who has submitted a request for removal of a Red Notice, and the case is now in the process of being reviewed by the Commission for the Control of INTERPOL’s Files (“CCF”).

The answer to the question is no. An applicant’s choice of which attorney, or whether to hire an attorney, on an INTERPOL matter should have no effect at all on the CCF’s evaluation of the case.

However, if a change in counsel is made and a new power of attorney is executed for a new attorney to act on the subject’s behalf, the CCF must be advised of that change so that it has the correct contact information on file when it comes time to send out its decision or other correspondence.

As always, thoughts and comments are welcomed.

We left off in the last post with a discussion about why a Request Chamber comprised entirely of lawyers makes a difference in the nature and quality of decisions being issued by the CCF.

In March of 2017, INTERPOL adopted a new Statute of the Commission for the Control of INTERPOL’s Files. As with many new regulations, the effect of this one took some time to become realized. That effect is now apparent, and is partially due to the new make up of the Commission.

Previously, the Commission‘s membership did include professionals with legal backgrounds, but they were not all attorneys. Now, however, this is the required background for the individuals who will decide the cases:

Article 8, Statute of the CCF:

The Request Chamber comprises the following:

(4) The Requests Chamber shall consist of five members:
(a) A lawyer with data-protection expertise;
(b) A lawyer with recognized international experience in police matters, in particular international police cooperation;
(c) A lawyer with international criminal law expertise;
(d) A lawyer with human rights expertise;
(e) A lawyer who holds or has held a senior judicial or prosecutorial position, preferably with experience in international judicial cooperation.

That’s a lot of lawyers, and that’s a lot of relevant legal experience. This type of experience makes a difference in the Commission’s analysis of cases and arguments. Since this change in the composition of the Commission’s decision-making body, we have seen a change also in the quality, depth, and detail of the decisions being issued by the Commission.

The advantage to this new approach is not only that the Commission is providing more transparency and legitimacy to its process. The changes also mean that the Commission is allowing for a higher quality of requests: when applicants know how the Commission approaches its cases, applicants and their attorneys are able to tailor their requests in a manner that is best suited for the Commission’s analysis.

RNLJ has frequently included criticism of INTERPOL and has advocated for reform where it has been needed, and we will continue to do so. But for now, credit has to be given where credit is due. INTERPOL has gotten this right.

As always, thoughts and comments are welcomed.

 

I recently received a decision from the CCF (Commission for the Control of INTERPOL’s Files), and I absolutely loved it. It was by far the best decision I have ever received from the CCF- and not just because we succeeded in our request to remove a client’s Red Notice, although of course that was the best part.

The decision was outstanding for another reason: it provided a thorough and detailed analysis of the Commission’s approach to the case. It provided a basis for understanding the Commission’s view of the case, and it gave the reader insight about how the Commission weighed the evidence and arguments that we had submitted, particularly against the political landscape of the country that requested the Red Notice.

Since the CCF does not publish its decisions, we can only glean information and guidance from its decisions on an anecdotal basis, as the decisions become available to us through our own work or the work of others. In that manner, I’ve noticed over the last 9 to 12 months that the CCF’s decisions are increasingly detailed, more thorough, and offer more transparency in terms of providing insight as to the Commission’s process and reasoning.

This change may be rooted in a variety of reasons, but the one that’s most apparent is this: the Commission’s decisions on requests for removal are now made by the Request Chamber, which was newly created in 2017 by the Statute of the Commission for the Control of INTERPOL’s Files. The members of the Request Chamber are all lawyers, and the difference that makes is significant.

Certainly, the CCF has always had attorneys on its staff who handle much of the CCF’s work when it is not in session, and who work in overdrive when it is in session. However, the added influence of having attorneys in decision-making roles who preside over cases in session cannot be overlooked, and is becoming more apparent with time.

In the next post: who are the lawyers that make up the Request Chamber, and why it matters.

As always, thoughts and comments are welcomed.

A reader recently sent in this question:

“hi, I am looking to assist a friend who is on an interpol red alert.

We wish to challenge the notice and have no idea how to gather the evidence allegedly supporting the notice .

any suggestions ?”

Any experienced, practicing attorney will likely understand why this question made my heart sink. Let me explain in the context of car repair.

It’s reasonable to think that some people are able to build their own automobile engine for the first time to use in their own automobile. If one has a sufficient background in automobiles, has installed engines built by others, and has studied engine building for some time, it would perhaps be a reasonable endeavor to attempt to build an engine, install it in a vehicle, and then drive it with one’s family members inside. Or, if the person was willing and able to spend the time researching and understanding vehicle design and repair, perhaps s/he could eventually become proficient enough to take on that challenge.

If not, the results can be disastrous and irreversibly damaging.

When I hear the kind of question such as that posed by our reader, above, it’s like hearing this about engine replacement:

“hi, I am looking to assist a friend who needs a new automobile engine.

We wish to build and install the engine and have no idea how to find the engine block or the other engine components.

any suggestions?”

The question is so broad that it tells me that the author, obviously good-hearted and well-intentioned, is also not (yet) qualified to do this work, and has not yet studied the issues related to the question in any depth.

The answer to this question is broad- and in addition to needing evidence that supports the notice, the reader needs evidence to support the arguments for removal. The answer depends on what the evidence is, where it is, who has it, whether it’s relevant or not to your argument, whether it’s reliable or not. It also depends on the grounds for seeking the removal, assuming they exist- what are they? Which rules/laws/treaties/conventions were violated?  Finally, if the reader makes the attempt and fails, there is a good chance that INTERPOL’s rules will prohibit a second effort.

So the short answer – “Gather the evidence that supports your arguments from the places that your evidence exists- court dockets, public and private records, media accounts, etc., etc.”- presupposes that you know what your arguments are, that they are valid, and that there exists evidence to support them. In other words, the reader is prepared to build the engine and drive around in the vehicle with his/her family in the vehicle.

If that is all in place, then the reader should make the attempt. If not, s/he should find a qualified professional to assist.

As always, thoughts and comments are welcomed.

 

A attorney/reader recently sent in this question on the topic of publicly available information on Red Notices, in relation to an individual wanted by authorities in a particular country:

My question is whether there is any tabulation of Red Notices that have been revoked/rescinded because of the Article 3 political repression nature of the issuance. I am interested in the total overall and the specific number related to (X country) –for any recent time frame.

The reader refers to INTERPOL’s constitution, Article 3, which prohibits INTERPOL from becoming involved in matters of a predominantly political nature.

And the response is this: the general public does not have access to the precise number of Red Notices that have been removed from INTERPOL’s databases from any particular country or for any particular reason unless INTERPOL decides to publish that information. In some annual reports by the CCF, the Commission has released figures for the grounds raised in requests for removal of data, but those reports have not specified the countries from which relief was sought. It has released numbers of cases in which relief was sought from particular countries, but without knowing the total number of cases in which a Red Notice was issued, it is impossible to attach any statistical significance to the number of cases for which relief was sought.

Additionally, given that INTERPOL’s member countries do not have to publish the Red Notices within the public domain, there is no publicly available data on the total number of Red Notices that any particular  country has requested or received.

The takeaway: while we do have some information regarding the number and type of cases wherein individuals assert violations of Article 3 of INTERPOL’s constitution, it’s not enough to serve as meaningful evidence of trends in violations. However, INTERPOL does have the capacity to release figures on that topic, should it choose to do so, within the context of an annual report or in response to a request for information.

As always, thoughts and comments are welcomed.

A Turkish court has requested a Red Notice against reporter Can Dündar, the former chief editor of the Turkish newspaper Cumhuriyet. Authorities charged him with espionage in 2016, alleging that he disclosed state secrets in the course of his reporting.

As reported here, the Committee to Protect Journalists (“CPJ”) has criticized Turkey’s request as being politically motivated, and has also requested that INTERPOL deny the request.

The CPJ’s criticism comes at  a time when Turkey is on the defensive about many of its Red Notices and Red Notice requests, particularly those involving journalists being charged with terrorism, espionage, and similar charges based upon the content of their writings. INTERPOL is reportedly examining scores of Red Notices with the goal of weeding out politically motivated notices; this activity is being undertaken amidst the international community’s criticisim of Turkey’s recent INTERPOL abuses.

As INTERPOL’s efforts to investigate the subject notices were reportedly contemplated prior to November of 2017, it is reasonable to anticipate that significant progress should be made in advance of INTERPOL’s general assembly this year in Dubai from November 16-21.

And though it shouldn’t be necessary, it is also reasonable to expect that INTERPOL would make an unequivocal statement regarding its stance on the criminalization of responsible journalism, particularly in light of such activity in INTERPOL’s member countries such as Turkey, Azerbaijan, and Kazakhstan.

As always, thoughts and comments are welcomed.

 

In the last post, we began a discussion on the issue of confidentiality in requests for Red Notice removals to the CCF.

When a Red Notice subject requests removal of a Red Notice, he is obliged to explain to the CCF why he is entitled to relief, and that explanation often involves reference to illegal action taken by officials in the INTERPOL member country seeking to capture him.

Naturally, many Red Notice subjects who seek Red Notice removal have left behind not only a corruptly obtained criminal charge and corrupt local officials, but they have also left behind family and friends about whom they are concerned.  The Red Notice subjects are often reluctant to disclose information regarding corruption, because those same corrupt officials are also capable of taking action against the subject’s family or friends.

This is where the issue of confidential information in an application requires some thought and analysis.

The CCF advises as to confidentiality issues on INTERPOL’s website, and confirms that all requests are confidential, and will not be recorded in INTERPOL’s databases, or be used to assist in international police searches. It clarifies, however, that:

The Commission may nevertheless need to communicate some information to the INTERPOL General Secretariat or the National Central Bureaus in order to obtain information, which is necessary for the processing of a request.

Experience tells us that the CCF can and does reach out to National Central Bureaus (NCB’s), and not only to verify court rulings and case status. There are also times when the CCF explains in some detail the arguments that have been asserted by Red Notice subjects in an effort to learn the NCB’s perspective on those matters. Obviously, some Red Notice subjects would prefer for such arguments, and the evidence offered in support of those arguments, NOT to be brought to the attention of the NCBs. For example, if a subject has fled a country where a bogus criminal charge has been filed as the result of political persecution, that subject would be reasonable to believe that the persecutors, who are connected with law enforcement officials, may also persecute their family members. In this situation, a subject has to make the difficult decision to disclose information and request heightened confidentiality, while also possibly risking a negative effect on the CCF’s review of the matter, as addressed by the CCF here:

However, any item of information specifically identified by the Applicant as confidential will not be communicated. This may be detrimental to the Applicant, as it restricts the Commission’s ability to fully process a request.

Therefore, in such instances when a subject does request heightened confidentiality, the subject must rely on the CCF’s request chamber members, all of whom are attorneys, to evaluate the application based upon the evidence submitted, with an eye toward individual protection and and the ability to appreciate the very real dangers that can accompany a request for protection to the CCF.

As always, thoughts and comments are welcomed.

Why would a Red Notice subject want a request for removal of that notice to remain confidential? If you were a wanted person who was innocent, wouldn’t you want to shout it from the rooftops, for everyone to hear? The answers to these questions are more nuanced than one might initially think.

By the time most Red Notice subjects seek assistance with the removal of a Red Notice, they have already endured multiple, ongoing hardships. They have often faced false or inflated criminal charges in jurisdictions where a fair trial is unattainable. Sometimes they have had civil disputes that became criminal because their opponent bribed local officials. Other times, they were charged criminally because they opposed the ruling political party in some way.

Very frequently, they say at some point during our initial meeting, “I know this sounds crazy, but…”

And the fact of the matter is, it doesn’t sound crazy. There is almost a recipe for every type of false or inflated charge that is prosecuted. That recipe almost always includes more than one person in power with an agenda that includes, or requires, the maintenance of criminal charges against individuals who would serve as obstacles to their goals. It may be as simple as a local police officer and prosecutor who filed a criminal complaint after being bribed. It may be as complicated as an entire national administration dedicated to keeping an oligarchy in power.

Regardless of the corruption model, a Red Notice subject often fears retribution when seeking relief from an improperly issued Red Notice. Even though the subject himself may have escaped an unsafe venue, he often has the worry of the family and business associates he left behind. It is not at all unusual for remaining family and associates to be harassed and intimidated by authorities, both officially and unofficially.

For these reasons, Red Notice subjects are often extremely concerned about confidentiality in their requests for relief to the CCF.

Submitting a request for relief to CCF requires a showing of violations of rule and law, which may require a showing of information that could endanger people back home. While the CCF’s rules do provide for confidentiality, there are situations where the CCF may wish to verify information with the country that requested the notice in the first place. Accordingly, applicants often have to decide whether to send the CCF information that would assist their cases, or to keep that information private in the interest of family safety.

In the next post, we’ll look at the issue of absolute confidentiality in the context of a request for relief to the CCF.

As always, thoughts and comments are welcomed.