In the last post, I addressed the latest events in the case of Michael Misick, former Premier of Turks and Caicos Islands (TCI).  Today’s post is a continuation of that discussion and an update of a related post from earlier this year.

INTERPOL’s constitution forbids its involvement in politically motivated cases

Regardless of that fact that Mr. Misick’s political asylum claim was denied in Brazil, it would be surprising if he did not also challenge his Red Notice directly to INTERPOL on political grounds as well.

Article 3 of INTERPOL’s constitution establishes that

            It is strictly forbidden for the Organization to undertake any intervention or

            activities of a political, military, religious or racial character.

Given that the allegations against Mr. Misick stem from his tenure in office, one might assume that the question of INTERPOL’s involvement should end there:  activities conducted in a political office are necessarily political. 

However, the analysis of whether a Red Notice is politically motivated requires a more thorough review of the underlying charges and Red Notice application.  The question of political motivation requires a study of all the circumstances involving the allegations, as well as a review of the political landscape and history of the requesting country. Additionally, the relationship between the Red Notice subject and the requesting country must be considered along with their respective activities.  

If the predominant reason for the Red Notice is the accomplishment of the issuing country’s political goals, then the Red Notice very well may be politically motivated to an unacceptable level.  However, if the true overriding basis for the Red Notice is the underlying criminal charge, then a challenge based on the political motivation of the Red Notice likely will not succeed. 

TCI responded to allegations of political motivation behind charges

Earlier in 2012, the TCI government addressed concerns about the reason behind the issuance of the Red Notice. Mr. Misick’s supporters had  speculated that the notice against him was politically motivated based upon a public argument in March of this year between Mr. Misick and Governor Ric Todd.  The argument was precipitated by Mr. Misick’s criticism of Mr. Todd.  

Governor’s Office spokesman Neil Smith, in response to those allegations, reportedly stated that the country had applied for the Notice back in February.  Therefore, goes the logic, the Notice could not have been based upon a spat that occurred in March.

While the timing and manner of the Red Notice issuance is yet unclear, one thing is certain:  any Red Notice challenge by Mr. Misick’s attorneys will certainly include evidence of his criticism of, and later argument with, Governor Todd.  The success of such a challenge will depend on the strength and validity of the documentation of the underlying criminal charges.

** Note to readers:  Red Notice Law Journal placed a request for verification of the grounds for the Red Notice in Mr. Misick’s name with INTERPOL’s press office.  As of today’s date, no response has been forthcoming.

Earlier this year, the issue of Michael Misick’s Red Notice was addressed here.  The next two posts are updates on Mr. Misick’s case. 

International police cooperation results in arrest of former Turks and Caicos Premier Michael Misick

Former Turks and Caicos Islands (TCI) Premier Michael Misick was arrested in Brazil on December 7, 2012 while at Rio de Janeiro’s domestic airport.  TCI is an overseas  territory of the United Kingdom, and its government has confirmed that it will seek the extradition of Mr. Misick.

Both Brazil and the United Kingdom are member countries of INTERPOL.  Their National Central Bureaus (NCBs) are in Rio de Janeiro and London, respectively, and the NCBs are the countries’ liaisons with INTERPOL’s headquarters in Lyon, France. The United Kingdom also maintains an INTERPOL sub-bureau in TCI.

Background of charges

Mr. Misick is wanted by officials in TCI for questioning on corruption allegations, as originally reported by Jacqueline Charles in the Miami Herald, here.  The investigation, which has already resulted in the arrest of other government officials, centers on the allegedly fraudulent distribution of government land, money laundering, and corruption.  Mr. Misick fled TCI and was reportedly seeking political asylum from what he claims is political persecution.

Brazilian authorities reportedly gave Mr. Misick permission to work while in the country and while his asylum petition was pending.  However, as reported here, that request was denied and the INTERPOL Red Notice triggered detention and extradition proceedings in Brazil.

Interpol notices function differently from arrest warrants

INTERPOL’s notices, particularly Red Notices, are often an inaccurately referred to as “international arrest warrants.”  A Red Notice issued by INTERPOL is a tool used by member countries to aid in detecting, detaining, and extraditing internationally wanted persons. 

INTERPOL does not dictate that its member countries arrest red notice subjects.  Each INTERPOL member country is left to determine how it will react to finding a Red Notice subject.  Many countries immediately detain the subject, while others monitor him or her and only execute a detention when a domestic warrant is issued based on the Red Notice.  Other countries have been known to completely ignore the notice, as happened recently in Afghanistan.

In the United States, once an international fugitive is discovered, the case is assigned to an Assistant United States Attorney. Assuming that all of the requisite documentation is in order, that attorney obtains an arrest warrant for the fugitive from a federal judge or magistrate in the district where the fugitive is believed to be located.  At that point, a detention and extradition process is authorized.

In Mr. Misick’s case, the Red Notice served to alert Brazilian authorities as to his wanted status in TCI.  Although Brazil apparently gave Mr. Misick temporary legal status and entertained his asylum claim, a domestic warrant for his arrest ultimately resulted in just that.  

In the next post, look for a discussion on Mr. Misick’s claim of political motivation that his lawyers are expected to advance, and INTERPOL’s policy regarding such claims.

Today’s post is the third in a series of posts addressing the CCF’s Annual Report for 2011 and focuses on the relationship between the CCF and the General Secretariat.  

The CCF is the arm of INTERPOL charged with the protection and monitoring of data processed by INTERPOL.  The General Secretariat has the authority to either accept or reject the CCF’s recommended responses to challenges against Red Notices.

In its 2011 Annual Report, the CCF noted that the General Secretariat accepted all of the Commission’s recommendations regarding the validity of data processed by INTERPOL.  While there is a procedure in place for that dictates the protocol for instances in which the General Secretariat disagrees with the Commission, no such scenarios arose in 2011 that required the implementation of that procedure. 

Because of the fact that the CCF holds the position of guardian of individual rights within INTERPOL, this is good news for Red Notice subjects and their attorneys.  It remains true that fighting a Red Notice is an uphill battle due to the presumption of validity that cloaks every Red Notice.  However, the  lack of discord between the General Secretariat and the CCF indicates a high level of respect for the CCF’s decisions, including its decisions to delete improper data from its databases.

As always, thoughts and comments are welcomed.

In a continuation of a series of posts about the CCF’s Annual Report for 2011, today’s post focuses on a perhaps surprising, but apparently common, occurence in INTERPOL member country courts around the world.

In its Annual Report, the CCF noted that many domestic courts were confused about INTERPOL’s role in extradition proceedings.  The CCF reported:

When processing complaints from requesting parties arrested on the basis of red notices
published by INTERPOL, the Commission has been faced with the position of national judicial authorities that considered that they could not rule on an extradition request when the person concerned had sent a complaint to INTERPOL.
A likely source of confusion by the courts is the possibility, no doubt raised by the accused, that the Red Notice that prompted the extradition proceedings may be in the process of being removed or destroyed.  If the Notice was no longer valid, then a court understandably would be concerned that the underlying charges may not be valid, either.  However, such a concern arises from a misapprehension of INTERPOL’s role.  The CCF went on to clarify INTERPOL’s role:
On several occasions, the Commission has had to explain to national authorities via the NCBs the limits of its role which consists of determining whether the information recorded in INTERPOL’s files has been processed in compliance with INTERPOL’s rules, and that it has no power over proceedings taken against a person at the national level.
It cannot recommend that a national authority cancel an arrest warrant, halt proceedings, or cooperate or not with a requesting authority; only the national judicial or police authorities concerned may do so. It is up to national judges to determine, based on the criteria that are applicable to them, whether they consider that they can act upon a request for extradition. The study on compliance with INTERPOL’s rules conducted by the Commission is not meant to affect the process of a judicial procedure on the national level.

While INTERPOL’s internal activity is not intended by INTERPOL to have any collateral effect on domestic cases, attorneys representing immigration, criminal, and INTERPOL clients can attest to the fact that courts are sometimes concerned with an individual’s INTERPOL status.  That status may have an effect, intended or not, on matters such as asylum claims and extradition evaluations.  

As always, thoughts and comments are welcomed.

 

For the next several posts, the focus of this blog will be on the issues raised and discussed in the 2011 Annual Report by the Commission for the Control of INTERPOL’s Files (“CCF”), found here.  Every year, the CCF issues its report, focusing on INTERPOL’s accomplishments and challenges from the CCF’s vantage point.  This year, the 2011 report was presented on November 8 by the Chairman of the CCF to INTERPOL’s General Assembly, which took place in Rome, Italy.

The CCF does an admirable job of publicly highlighting the problems faced by INTERPOL and by its member countries, and credibly appears to take seriously its obligation of balancing law enforcement interests with individual human rights.

Among the challenges to be corrected, the CCF noted the rather pervasive problem of member countries’ National Central Bureaus (“NCB’s”) failing to advise INTERPOL when a Red Notice was no longer valid.  The CCF reported that, even when a Red Notice subject had been arrested and sentenced to a term of imprisonment, the Notice frequently remained live.

Experience showed that NCBs generally did not follow up such information and only rarely informed the General Secretariat that the person had served his or her sentence.

The effect of such failures by the NCBs is that people who have served their sentences and then travel abroad are still subject to detention in other INTERPOL member countries, although no charges are pending against them.
Based on that observation, the CCF advised INTERPOL to re-evaluate its policy regarding systemic retention of information for certain persons.  The CCF’s recommendation is a sensible one, both from an individual rights point of view and from INTERPOL’s vantage point.  Clearly, invalid data ought not to be maintained in a database designed to aid in detention and extradition.
 
Moreover, INTERPOL protects itself when it employs effective internal quality assurance mechanisms. INTERPOL has taken a more active and public role in protecting itself from external attacks resulting from the improper or erroneous activity by its member countries’ NCBs.  A change in the policy of systemic retention would place yet another obstacle between INTERPOL and its less vigilant member countries.
As always, thoughts and comments are welcomed.

INTERPOL’s role in the world of law enforcement, boiled down to its bare bones, is to aid its member countries with two things:  1) alerting them to the movement of wanted persons, and 2) assisting in the apprehension of wanted persons.  The alerting is normally accomplished via a member country’s request for a Red Notice.  The assisting in apprehension normally arises when local authorities come into contact with the Red Notice subject and detain him or her.

Corruption in the Application for Red Notices

It would be news to no one that I frequently complain about the fact that INTERPOL is subject to misuse, or that it has some corrupt member countries that seek Red Notices for reasons unrelated to crime-fighting.  I’ve addressed the issues of member countries’ National Central Bureaus using their INTERPOL access to support politically motivated goals, to obtain bribes, and to circumvent basic due process. When Red Notice requests are made in the context of such impropriety, they are subject to challenges by Red Notice subjects and their attorneys.

And it remains true that INTERPOL is susceptible to abuse by its member countries who improperly seek and obtain Red Notices.  The nature of an international organization with 190 member countries, all of which have varying degrees of oversight and corruption, is that abuse of process will occur.

Corruption in the Apprehension (or Failure to Apprehend) of a Red Notice Subject

What might be surprising, though, is that when a Red Notice is properly obtained based on criminal activity, the suspect is sometimes not even detained, let alone extradited.  

Even when a member country properly obtains a Red Notice against a suspect, plenty of room remains for law enforcement officials to behave illegally for their own purposes.  A prime example of a country’s failure (or refusal) to take action on a Red Notice is provided in last week’s article by Emma Graham-Harrison’s article on Afghanistan’s treatment of a Red Notice for financial crime suspect Sherkhan Farnood.

Mr. Farnoond has been charged with fraud and theft from Kabul Bank, which he founded.  Also charged is the the bank’s CEO, Khalilullah Ferozi.  The investigation of Farnood’s financial activity in Afghanistan revealed a massive Ponzi scheme that most likely would not have gone undetected for so long if Afghan police had acted upon a Red Notice issued against Mr. Farnood by INTERPOL member country Russia.

The reason for the lack of action by Afghan authorities appears by all accounts to be based on the disproportionate level of influence held by relatively few individuals in Afghanistan.  Graham-Harrison reported that

[A]mong the bank’s creditors are a group who got $3.1m in loans but are so powerful that receivers for Kabul Bank have declined to even ask for the money back.

With such pervasive corruption, it is anticipated that most of the stolen funds will go unrecovered, leaving the citizens of Afghanistan to make up the losses.

INTERPOL’s “Disciplinary” Options for Corrupt Activity

When faced with a member country’s refusal to act on a Red Notice, INTERPOL may decide to do nothing at all. Recall that every member country’s protocol for reacting to the discovery of a Red Notice subject is different, and every case has distinct characteristics which may not make it appropriate to detain or extradite the Red Notice subject.  An individual act of refusal to detain a subject may not merit any intervention by INTERPOL.

Simultaneously, the entire aim of INTERPOL is to provide for international police cooperation.  In the new Rules on the Processing of Data (“RPD”), INTERPOL reiterates that aim, and also provides for “corrective measures” to be applied to NCBs that do not fulfill their obligations under the rules.  One of the available corrective measures is the suspension of the NCBs access rights to INTERPOL’s data system.  Another option is that the General Secretariat must remind NCBs of their INTERPOL obligations whenever necessary.

It might be time for Kabul NCB to be reminded. 

As always, thoughts and comments are welcomed.

A fellow attorney contacted me recently with a common question.  The inquiry was as follows:

After I requested that a Red Notice against my client be removed, I received no answer, but it disappeared from INTERPOL’s website.  Can I assume that it has been removed?

As with any question about assumptions, the answer is that one shouldn’t assume, but should verify.

First, it should be noted that any request regarding the validity of a Red Notice should be met with a response regarding admissibility in thirty days.  In my experience, such responses have always been forthcoming within that timeframe.

Second, while it is possible that the Notice has been removed from INTERPOL’s databases, it is also possible that it has not.  The Notice may have become the subject of an inquiry regarding its validity.

Additionally, it is possible that the country that requested the Notice in the first place later requested that it not be published on the website any longer.  Recall that the decision to publish a Red Notice is made by the requesting country, and the requesting country is the owner of the information supplied to INTERPOL. Moreover, the vast majority of Red Notices are unpublished.

Instead of assuming, a better approach would be to directly inquire with the CCF (the Commission for the Control of INTERPOL’s Files), INTERPOL’s processor of personal information, regarding the status of the matter.

As always, thoughts and comments are welcomed.

A reader posted this comment recently:

Just wanted to know if a person committed a crime 28 years ago and has been on the run ever since, would that individual be on the Interpol red list if he tries to fly internationally?

We naturally assume that the question is merely one of curiousity, and posed solely for academic purposes.  The reader is referring to a Red Notice, and it is not known from the question whether the person who committed the underlying crime was ever made the subject of a Red Notice.  Assuming that a Red Notice was requested, there is a good chance that the Notice is still active.  This issue was addressed not too long ago in a post, here. 

The reader’s question is reminiscent, in its cautiously casual tone, of the thought that must run through many a man’s mind:

Just wondering if that transgression of mine from so long ago would be raised if I were to engage in the obviously impending argument with my wife?

And of course, the answer is that, unless the woman is really no longer interested at all, that issue will probably be raised, because the female memory bank tends to be rather broad and readily accessible.

Likewise, unless the requesting country is no longer interested in prosecution, the Red Notice likely remains outstanding and that the travelling Red Notice subject will be detained during his travels.  If there is reason to believe that the notice is no longer valid or was improper to begin with, then the subject or his attorney may wish to challenge the Notice and seek its removal.  He may have better luck than the guy arguing with his wife.

As always, thoughts and comments are welcomed.

 

INTERPOL’s annual General Assembly was recently held in Rome.  Now that the GA has come to a close, we have been discussing some of the decisions made during the meetings.  In the last post, the President of INTERPOL was the topic; today, we review the other newest members of the Executive Committee.

The Exectutive Committee is charged with organizing the meeting agendas of the General Assembly each year, as well as overseeing the execution of the decisions made by the General Assembly; submitting ongoing projects to the General Assembly as it sees fit; and supervising the work of the Secretary General. The Executive Committee meets three times per year.

This year, the following people were elected to  Executive Committee:

  • Alan Bersin, Assistant Secretary of International Affairs for the U.S. Department of Homeland Security (Vice President for the Americas), 
  • Nobuyuki Kawai, Director of the Organized Crime Department of the National Police Academy of Japan (Vice President for Asia), 
  • Algeria’s Abdelkader Kara Bouhadba, Commissaire Divisionnaire de Police, Directeur de la Police Judiciaire (Delegate for Africa), 
  • Bob Paulson, Commissioner of the Royal Canadian Mounted Police (Delegate for the Americas),
  • Jong Yang Kim of the Korean National Police Agency and Head of INTERPOL’s National Central Bureau in Seoul (Delegate for Asia),
  • Brigadier General Saoud Abdallah Al-Mahmoud, Director of the International Cooperation Department of Qatar’s Ministry of Interior (Delegate for Asia), and 
  • Filippo Dispenza, Brigadier General of the Italian National Police (Delegate for Europe).

All of the Executive Committee members are listed here; some members are continuing their existing terms of service.

As always, thoughts and comments are welcomed.

Now that INTERPOL’s annual General Assembly has come to a close, it’s a good time to discuss some of the decisions that were made during the GA’s annual meeting.

First, let’s get to the GA’s choice for INTERPOL’s president: Mireille Ballestrazzi, Deputy Central Director of the French Judicial Police.  She will serve as INTERPOL’s first female president.

Ms. Ballestrazzi previously served as the Vice President for Europe of INTERPOL, and is seen here in a video interview from March of this year.  She has led an interesting professional life and was even the subject of a book called Madame la commissaire.  Her most well-known accomplishments include tracking down valuable stolen works of art and taking on the mafia.

Being the first woman to hold a given office is nothing new for her; her current position is one in a series of firsts. She was also the first female deputy director of the Economic and Financial Affairs of the Central Directorate of the Judicial Police.  Additionally, although the seat of INTERPOL is in Lyon, France, Ms. Ballestrazzi’s election marks the first time since 1992 that the presidency of INTERPOL has been held by France.

While her public remarks were not lengthy at the General Assembly, we’re looking forward to seeing what sort of influence she will have on the Organization during her presidential term.

As always, thoughts and comments are welcomed.