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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.

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.

“But I’m innocent!”  Clients who are the subjects of Red Notices frequently and understandably feel a sense of outrage over the fact that a Red Notice has been issued against them when they are in fact innocent of the charges in the underlying arrest warrant.

When clients ask if INTERPOL will withdraw a Red Notice based on innocence, the unfortunate answer is, no.  In fact, INTERPOL clearly states that the persons who are subjects of Red Notices are to be presumed innocent until proven guilty.  INTERPOL is not a trier of fact.  It acts as a communicator of information between law enforcement agencies, and aids in bringing the subjects of Red Notices before the proper authority for trial or sentencing.

So when a person offers only innocence as a challenge to a Red Notice, INTERPOL’s response will be the same as Tommy Lee Jones’ U.S. Marshall character in the movie, The Fugitive, when a sentenced fugitive tells him, “I didn’t kill my wife!”  Just as INTERPOL does not determine innocence or guilt, neither does the U.S. Marshall.  Of course, his response is:  “I don’t care.”  INTERPOL is only compelled to remove a Red Notice when a wanted person or her attorney presents the organization with compelling evidence that maintaining the Red Notice would violate its rules.

As always, thoughts and comments are welcomed.

(This post was originally published on in June of 2011 by Red Notice Law Journal and is published here with additional information.)

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.

 

A reader recently wrote to ask what happens when an INTERPOL member country’s National Central Bureau (NCB) does not respond to INTERPOL’s requests for confirmation of information supplied by a Red Notice subject or his attorney.

An NCB is obligated to respond to INTERPOL’s request for information in order for INTERPOL to properly process individual requests for access to INTERPOL’s files, and when the NCB responds in a timely fashion, INTERPOL is able to do the same regarding the request.

However, there are times when the NCB either completely fails to respond.  When this happens, INTERPOL can and does make a determination regarding the subject request based upon the information it has available.  That decision may be favorable to the individual or not.

The reader also asked about approaching INTERPOL in person or via telephone in order to obtain a response.  Neither approach is likely to be successful, because INTERPOL’s independent body that addresses all requests for information and relief, the Commission for the Control of INTERPOL’s Files, requires that all requests be sent to it via post.  Postal requests are also the only means of keeping inquiries confidential.

As always, thoughts and comments are welcomed.

 

INTERPOL is an international information sharing agency that allows its 190 member countries to assist one another in the search for wanted persons who are suspected of having fled the jurisdiction of the requesting member country.

While the vast majority of publicized Red Notice challenges seem to arise from individual requests for removal that are prepared by the Red Notice subjects or their attorneys, some disputed Red Notices are challenged by the subject’s own country on behalf of the subject. In these instances, INTERPOL’s member countries may either approach one another directly, or may approach INTERPOL in an attempt to reach an agreement regarding the disputed Red Notice.

An example of country-led efforts at resolving INTERPOL matters arose last year, when the United States approached INTERPOL directly on behalf of several United States citizens to request that INTERPOL not issue Red Notices against them.  The U.S. argued that Egypt’s request was politically based, and INTERPOL eventually agreed, refusing to issue the notices.  INTERPOL also utilized its press release as an opportunity to increase its commitment to transparency, by offering that

Anyone seeking the truth about INTERPOL’s involvement, or otherwise, in any matter should contact the organization directly in order to ascertain the facts, rather than making statements based on ill-founded rumour and speculation.

This statement appears to have been prompted by what INTERPOL characterized as “ill informed speculation about this case and INTERPOL’s role.”  (More on this topic in the next several posts, which will focus on Fair Trials International’s recently issued report on INTERPOL.)

Certainly, member countries are free to engage directly in country-to-country efforts to resolve such matters. To some degree, the U.S. and Egypt did deal directly with one another regarding the NGO case. After the U.S. threatened to cut off significant aid to Egypt, Egypt did agree to allow the accused individuals to travel out of the country, although the charges remained pending, and the accused were later convicted.

INTERPOL does not govern the diplomatic relationships between member countries, so there is no INTERPOL-imposed means of conducting country-to-country communications outside of INTERPOL’s involvement.  However, if a member country does approach INTERPOL directly on behalf of a wanted individual, INTERPOL’s rules (Rule 135, RPD) do require that the country’s National Central Bureau (NCB) act as the country’s representative.

As always, comments and thoughts are welcomed.

We’re in the middle of a series of posts about issues that are addressed in the 2012 Annual Report of the Commission for the Control of INTERPOL’s Files (CCF).  The question for today is probably the most common of all for Red Notice subjects who decide to seek the removal of their Red Notices:  “How long will this take?”

In its recently issued report, the Commission announced its average time for processing a request, which is an appeal for some sort of relief from Red Notice subjects and their attorneys. The CCF lists its average response time for 2012 requests as being 6 months.  

While the 6 month average is likely accurate for the CCF’s general case load for 2012, my experience has been that cases take an average of nine months for a response.  This average is taken over a period of years, rather than just 2012, and includes cases that may have been particularly sensitive in nature, thereby taking longer to process.

As always, thoughts and comments are welcomed.

Last week, Bassama Al Jandaly of gulfnews reported that an alleged Italian mafia head was detained in Duabai based on a Red Notice issued at the request of Italian authorities.  The suspect, Amadeo Matacena, is wanted in Italy for charges of colluding with the Italian mafia.

All news reports on this case indicate that local authorities in Dubai were alerted to Matacena’s arrival through its INTERPOL connections.  Normally, when a passenger manifest is inspected for a particular  flight, authorities have access to INTERPOL’s databases and are notified when a particular passenger is wanted by another country.  

In this case, the subject was detained at the airport and was arrested.  The Dubai Public Prosecution is handling the extradition request, and the subject was released on bail until extradition has been determined.

If his attorneys are successful in obtaining a denial of extradition, it is likely that INTERPOL will provide an addendum to the Red Notice against Mr. Matacena indicating the failed extradition.  If extradition is ultimately granted, then Mr. Matacena will be returned to Italy to face the pending charges.

As always, thoughts and comments are welcomed.

 

INTERPOL has planned its 82nd General Assembly meeting for next month in Colombia.  To get right to the point, out of all the planned events for the meeting, I am most interested in reading about the presentation of the Annual Report by the Commission for the Control of INTERPOL’s Files (CCF). Traditionally, the CCF’s report has been presented to the General Assembly in conjunction with a speech by its chairperson.

This year, one of the primary topics of the report is likely to be whether the Rules on the Processing of Data (“RPD”) have been implemented completely in practice, and if so, to what effect?  A critical issue in the RPD, for both INTERPOL and for attorneys practicing before INTERPOL, is that of the accountability of National Central Bureaus (“NCB’s”) for INTERPOL’s member countries.  

When the RPD took effect in July of 2012, the new rules included multiple provisions that were clearly intended to shift responsibility for proper data processing to the NCB’s and away from INTERPOL itself.  One concern, which remains to be fully publicly addressed, was how the CCF and INTERPOL would identify misbehaving NCB’s, and how the available sanctions would be applied.

While it has only been a little over a year since the effective date of the new rules, sufficient time has passed for the CCF to have observed, directly or indirectly, improper actions taken by some member countries’ NCB’s.  It will be interesting to see whether the Commission addresses NCB malfeasance and sanctions in connection with the implementation of the new rules.  If so, the Commission will have taken another step towards the goals of transparency and accountability that INTERPOL sets for itself.  If not, we will be left to wonder whether the new rules matter very much.

As always, thoughts and comments are welcomed.

 

A reader recently sent in the following comment and question:

I have a diffusion notice against me , which was issued by the Indian government. This was done purely to harass me , using the high influence of politics. The case I was wrongly implicated in, is now resolved. So is there a way that we apply to remove the name from the diffusion notice? This  is causing me terrible stress in the airport everytime I enter the airport.

The reader’s experience with difficulty and delay when travelling is a common one.  Even after the underlying grounds for a Red Notice or diffusion have been resolved, many countries fail to remove the original information from their systems.  This failure is a violation of INTERPOL’s rules and make the offending member country subject to sanctions by INTERPOL.

When a member country does not advise INTERPOL that an underlying warrant or conviction is no longer a valid grounds for a Red Notice or diffusion, the subject of the notice or diffusion is forced to either hire an attorney to assit him or to try to remove it himself.  Of course, it never hurts to first request that the member country execute the removal itself, as it is bound to do by its INTERPOL obligations. 

As always, thoughts and comments are welcomed.