As discussed in the last post, here, INTERPOL’s new rules governing the CCF took effect in March. From a practitioner’s standpoint, among the more significant changes is the CCF’s new task of publishing its opinions and providing reasoning for them.

The CCF is now required to “endeavour to make its decisions, opinions, recommendations and
reports public in all working languages of the Organization.”

This language of the statute is devoid of hard deadlines or methods of publication- there are no assurances that the CCF’s decisions will be published monthly, quarterly, yearly, etc. In fact, there is not the requirement that the CCF actually publishes an opinion- simply that it must endeavor to do so.

However, the publication provision in the statute is still good news. This marks the first time that the CCF has obliged itself to even contemplate creating a public repository of opinions, and that would be a very useful thing for both the CCF and practitioners for a couple of reasons:

  • Published decisions allow practicioners to better understand the CCF’s analytical process and the weight that the CCF gives to various types of arguments.  Until now, we have been limited to reviewing our own cases or the relatively few media cases to gain insight as to the CCF’s deliberative process.
  • Published decisions allow the CCF to receive better prepared requests for relief. An informed practitioner is an effective practitioner.

Now, we wait to see how and when this new practice will take effect.

Next time: new rule on the how quickly an attorney must act on the discovery of new information in an applicant’s case.

As always, thoughts and comments are welcomed.

Last November, at the annual meeting held under the direction of INTERPOL’s newest Secretary General, Jürgen Stock, the organization adopted new rules to be applied to its quasi-appellate body, the Commission for the Control of INTERPOL’s Files (“CCF”).  This change marks the first time since 2012 that INTERPOL and the CCF have undergone such a substantive change in the rules.

The new rules are set forth in the “Statute of the Commission for the Control of INTERPOL’s Files,” the purpose of  which is to define the work of the CCF.  The changes in the CCF are both procedural and substantive.  We’ll address the most significant differences in the next several posts, and today will begin with one of my favorites and something that almost no one ever asks for: more lawyers.

In the context of the CCF, more lawyers is good.  Up until now, the CCF has been comprised of five members, who are required to include: one chairperson who has held a senior judicial or data protection post; two data protection experts having held senior positions in that field; an electronic data processing expert having held a senior position in that field; and an expert with international experience in international police co-operation.  While some attorneys have held the positions, there has not been an absolute requirement that attorneys be appointed. Consequently, the Commission members’ experience in or interest in international human rights issues, criminal law fundamentals, and international judicial matters have not been required.

Now, however, the new Statute re-defines the makeup of the CCF.  There will now be two chambers that comprise the CCF:

The Supervisory and Advisory Chamber, responsible for:

  • ensuring compliance of personal data with INTERPOL’s rules, and
  • assisting INTERPOL with advise on projects, rules, and oeprations regarding the processing of personal data.

The Requests Chamber, responsible for:

  • examining and deciding on requests for access to and removal or correction of data.

The Requests Chamber is required to include five lawyers, one of each with expertise in data protection, international police cooperation, international criminal law, human rights issues, and one with judicial or prosecutorial experience.

While the CCF has already staffed very capable attorneys who work on the data requests, this is the first time that the members of the Commission will be required to be attorneys as well.  This change is indicative of a higher commitment by Commission members to the examination and understanding of legal arguments and theories, and should make the work of the CCF’s staff attorneys less burdensome in terms of pre-session preparation of cases.

The inclusion of attorneys on the CCF will also assist in accomplishing one of the other new requirements of the CCF: to provide reasoned and published opinions.  More on this topic next time.

As always, thoughts and comments are welcomed.

As the year begins, and changes appear to be coming to both INTERPOL and the CCF,* Red Notice Law Journal reviews some highlights from the CCF’s activity in 2016:

Third case study: a comparison of the CCF’s treatment of Russian Red Notice requests:

In today’s post, I’ll compare two very different decisions from the CCF, primarily to highlight the difference in the quality and depth of the responses that we are receiving now.  Both cases involved very complicated fact patterns and legal issues, and both required that the CCF review a significant quantity of evidence prior to making its decision.

The decision in the first case, however, was more similar to the decisions that the CCF has issued in the past: concise, to the point, and lacking the information that would allow the client to fully understand the basis of the decision or that would allow the attorney to understand how the CCF viewed each legal argument. The decision in the second case contained many of the elements that the CCF will be required to include after the rules changes take effect in March.*

September 2016 decision regarding a Russian national:

In this decision, which was received in the early fall of 2016, the CCF advised that the client’s Red Notice had been removed, and confirmed that it had communicated to all the National Central Bureaus that the data should also be removed in their respective national databases.  This was not a particularly detailed decision as relayed to us, but it was obviously a welcomed one.

December 2016 decision regarding a Russian national:

In the decision received in December of 2016, the CCF methodically detailed the background of the case, the actions that it took upon receiving the evidence supplied on behalf of our client, and the reason for the CCF’s ultimate decision to remove the Red Notice. It also supplied an official document explaining in plain language the the client was not known to INTERPOL’s files nor did his data exist within INTERPOL’s databases.  The detail supplied in this letter allows for an understanding as to the CCF’s reasoning and analysis, which is valuable for the client as well as the attorney.  The client feels that the CCF really took the time to examine and understand the case, which is very important, given that many Red Notice subjects who seek relief from the CCF have never received due process in their cases from the countries that requested the notices.  The attorney benefits, as does the CCF, by learning which arguments and which evidence were most compelling, or least compelling, in the eyes of the Commission members.

This change in the CCF’s approach to issuing its decisions is beneficial to all parties. In the next series of posts, I’ll address these changes and how they might affect practitioners and notice subjects.

As always, thoughts and comments are welcomed.

*Changes to the CCF will be addressed in the next post.

As the year begins, and changes appear to be coming to both INTERPOL and the CCF,* Red Notice Law Journal reviews some highlights from the CCF’s activity in 2016:

First case study: Vladimir and Alexandr Kholodnyak

In this case, our clients, Vladimir and Alexandr Kholodnyak,** succeeded in their efforts to remove the Russian- requested Red Notices in their names.  The CCF agreed to remove both of the brothers’ Red Notices, and followed its now-standard practice by specifiying in the decision letter the following information:

• The data registered in INTERPOL’s files was not compliant with INTERPOL’s rules. Consequently, the Commission recommended that INTERPOL delete the data concerned.

• INTERPOL’s General Secretariat has informed all INTERPOL National Central Bureaus that the data has been deleted from INTERPOL’s files.

• All NCBs have been instructed to update their national databases to reflect the removal of the Kholdonyaks’ data.

The CCF’s decision in the Kholodnyak’s case was additionally significant because the notices not only significantly affected their business interests, but they also posed a problem for their immigration cases in the United States.  With the removal of the notices, the brothers face one less impediment to achieving their immigration goals, and they are free to pursue their professional and personal lives. Additionally, their cases received some negative and seemingly biased media coverage, so the removal of the Red Notices brought a sense of vindication as well.

As always, thoughts and comments are welcomed.

* These changes will be addressed in the coming posts.

*Information published here with clients’ consent.

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.

One of my favorite adages is one that defense attorneys use in closing arguments when the government’s case contains some evidence of guilt, and some evidence of illegal police conduct:

If a waiter in a restaurant brings you soup with a cockroach in it, you don’t eat around the cockroach- you send the whole bowl back to the kitchen because all of the soup is tainted.

I am reminded of this story when I think about China’s Skynet investigation, the subject of a report here.

China has escalated extradition efforts in furtherance of its anti-corruption endeavor, named Skynet, and is seeking the assistance of other countries and INTERPOL, through the use of Red Notices, to find and bring home government officials who left the country and allegedly committed financial crimes.

Of course, often times when we see a massive anti-corruption drive, we also see an accompanying slew of human rights violations.  It appears from the article cited above that China’s Skynet is no exception. From the article, some detail is provided about the tactics China uses to encourage people to return to China to face their charges:

Over 40 percent of the 738 fugitives who returned to China in 2015 were “persuaded” to come back rather than forcibly repatriated, according to the CCDI. Fugitives’ family members sometimes played a role in these “persuasion efforts”, Li Gongjing, a Shanghai police officer, said in an interview with Xinmin Weekly magazine.
“It’s very effective. A suspect is like a kite. Although he is in a foreign country, his line is in China and we can find him through his relatives,” Li said.

“Finding” a suspect is different from “persuading” her to return. In almost every case I have seen where an improperly Red Notice is requested against a subject who has family members in the requesting country, government officials’ “persuasion” efforts have not included polite letters or requests. Rather, they have included the use of physical force and intimidation, seizure of legally owned assets, threats to have family members fired from their jobs, revocation of professional licenses and permits, and the like.  And this is all before the subject is returned to the requesting country- it’s not a stretch to imagine that such a country will commit further human rights and legal violations if she did return.

China has a long-standing history of violating human rights in the name of maintaining law and order.  For this reason, some countries, including the United States, have not agreed to an extradition treaty with China.  Recent evidence  illustrates that China continues its pattern of human rights violations: it has ignored the international amnesty status of individuals in order to re-patriate them, and has also engaged in disappearing individuals who have spoken against the government.

So, back to the soup.  Before INTERPOL can legitimately become involved with China’s anti-corruption prosecutions, China should be required to show substantive and documented reform in the area of human rights and due process rights.  Until then, the whole bowl of Skynet soup is tainted and should be returned to the kitchen.

As always, thoughts and comments are welcomed.

 

 

Given the fact that I have done my share of complaining about the Commission for the Control of INTERPOL’s Files demonstrating a lack of transparency and the need for more disclosure about its decision-making process, it is only fair that credit be given when the CCF does show progress on those fronts.

In a decision that my firm recently received from the CCF, the following pieces of information were included, in addition to its standard language:

  • the relevant arrest warrant was identified and attached to the decision
  • the date that the case was considered by the CCF was provided
  • the Commission’s final thoughts regarding each of my client’s claims were provided (although the precise nature of the analysis was not)
  • the Commission acknowledged other relevant information regarding the client

This type of decision provides for a better understanding of the Commission’s considerations, activity, and viewpoint.  It allows for the recipient to feel that a full review of the case did occur, and therefore contributes to the CCF’s credibility.

As always, thoughts and comments are welcomed.

Clients often ask if a INTERPOL member country can request another Red Notice after it has been rejected or deleted already by INTERPOL. This concern arises when the Red Notice request is motivated by political concerns or personal vendettas.  And, as the case of Fethullah Gülen illustrates, those repeat requests are sometimes made, and INTERPOL usually recognizes them for what they are: more of the same.

INTERPOL has reportedly rejected Turkey’s renewed request for a Red Notice against Turkish Islamic scholar Fethullah Gülen, a cleric who lives in exile in the United States. The decision, reported here, cited a lack of evidence that Gülen had committed any crime, and also referred to political issues raised by Turkish officials.

Turkish prosecutors accused Gülen of being part of a “parallel structure,” which is illegal under the current regime.  As reported in Zaman Today,

The term “parallel structure” was invented by President Recep Tayyip Erdoğan to refer to followers of the Gülen movement, also known as the Hizmet movement, a grassroots social initiative inspired by the ideas of Gülen.

INTERPOL apparently indicated in its decision that it did not recognize the “parallel structure” as a illegal or terrorist organization. In other words, the charges against Gülen appear to have been fabricated based on his political activity. His case is widely viewed as part of a government crackdown on dissidents and political opposition, as described here.  U.S. officials have also thus far refused to extradite Gülen back to Turkey.

As always, thoughts and comments are welcomed.

Any time a lawyer is successful in his or her efforts to zealously represent a client, I feel an appreciation for the satisfaction that the lawyer must be experiencing.  Recently, though, I learned of an attorney’s success and I felt a sense of personal happiness for the attorney’s victory, though I had no involvement with the case at all.

Rutsel Silvestre Martha is an attorney in London who is the former General Counsel and Director of Legal Affairs of INTERPOL.  He has written extensively on INTERPOL matters, and as such, has been one of my teachers.  Dr. Martha recently prevailed on two very difficult, protracted Red Notice cases before INTERPOL’s CCF.  Certainly, any INTERPOL case is an uphill battle, and any win is worthy of recognition.  The cases of Rafat Ali Rizvi and Hexham al-Warraq, however, were particularly challenging.  The results of the cases were published on INTERPOL’s website, and such publication is generally limited to cases that have been the subjects of extraordinary publicity or concern to INTERPOL or its member countries.

Congratulations to Dr. Martha and his co-counsel, Mr. George Burn, on their successful work on behalf of their clients.

As always, thoughts and comments are welcomed.

 

A reader recently sent in the following questions:

Can you tell me would the IRS issue a diffusion notice in a civil tax audit involving offshore banking? Would Interpol even accept a diffusion notice on a non criminal case? And if so what does that mean to a person travelling?

The reader rightly questions whether INTERPOL would become involved in a civil matter, and it would not.  INTERPOL exists primarily for the purpose of assisting its member countries in bringing criminal subjects to justice, and its rules require a minimum sentence for a crime to qualify for circulation in INTERPOL’s databases.  INTERPOL does also circulate notices regarding individuals who are subjects of interest to criminal investigations; missing persons; and unidentified bodies, but all notices contain crime-related information.

However, if a case has both a civil element and a legitimate criminal element, INTERPOL may become involved in the matter.  For instance, if a tax audit reveals evidence of tax evasion or tax fraud, it would be reasonable to expect that criminal charges may follow.  In that case, a Red Notice may be issued for a person who is believed to have fled the jurisdiction.

Regarding the reader’s question about travel: if a Red Notice is issued due to a pending criminal case, then detention and extradition become possible.

As always, thoughts and comments are welcomed.