Red Notice

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One of the most frequent questions people have about INTERPOL Red Notices is how a Red Notice can be issued in a case where the prosecution was politically motivated. The question is a valid one, particularly given INTERPOL’s prohibition of involvement in political cases. INTERPOL specifies in one of its fact sheets, here, that:

 

The General Secretariat can only publish a notice that adheres to all the proper legal
conditions. For example, a notice will not be published if it violates INTERPOL’s Constitution, which forbids the Organization from undertaking activities of a political, military, religious
or racial character.

 

This statement is not entirely accurate, only because the General Secretariat does not always know the true nature of the cases behind the Red Notice requests that it receives from its member countries.

Despite the prohibition against political cases, practitioners are routinely approached by individuals who are being politically prosecuted for criminal offenses, and listed with INTERPOL as Red Notice subjects. The reality is that politically motivated Red Notices are, in fact, published.

Unless a Red Notice subject is particularly well-known, it is quite possible for the underlying political nature of the Red Notice to be unknown to INTERPOL. Only when the subject discover the Red Notice and works with his/her attorneys to inform INTERPOL about the true nature of the case does INTERPOL learn that it should not be involved in the matter.

As always, thoughts and comments are welcomed.

 

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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My question is whether there is any tabulation of Red Notices that have been revoked/rescinded because of the Article 3 political repression nature of the issuance.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.

It was with great dismay that I read this article . It seems that under the administration of Donald Trump, United States officials are now gathering intelligence on the public activity of journalists, bloggers, and other people that the administration considers to be influencers on matters of import to the Department of Homeland Security.

While obviously one hopes that this kind of activity is not for nefarious purposes, it’s not difficult to imagine that a president who has been so sensitive to criticism, as has Mr. Trump, could only be gathering this information for purposes of punishing, prosecuting, or targeting individuals who write information that is harmful to his ego, his policies, his desires, or simply his feelings.

Tyler Houlton, spokesman for the Department of Homeland Security, asserted in a tweet that the monitoring activity was simply standard procedure, and that any  suggestion otherwise was “fit for tin foil hat wearing, black helicopter conspiracy theorists.”

In other words, we’re crazy if we question this monitoring of the free press, despite the current political crackdown on journalists that we’ve seen around the world, particularly in Turkey, where the administration has utilized INTERPOL’s tools in the furtherance of its prosecution of journalists.

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.

 

Under the leadership of its current Chairman,  Vitalie Pirlog, the Commission for the Control of INTERPOL’s Files (“CCF”) has proven in this year’s decisions that it is serious about holding National Central Bureaus to their obligations under INTERPOL’s rules.

In his speech at this year’s General Assembly, Chairman Pirlog reminded INTERPOL’s membership that the CCF often seeks information from their National Central Bureaus (“NCBs”). These responses are essential to the CCF’s ability to make decisions about requests for removal of Red Notices from the requesting country. Mr. Pirlog reminded member countries that timely responses were particularly important, given the CCF’s new statute that generally requires a response to be issued within four to nine months.

INTERPOL has always provided the required assistance to its members’ NCBs, but historically, the NCBs have not always been strictly observant of their duties to provided requested information, or to provide it timely. The CCF has apparently had enough of that, and is holding the members countries’ NCB’s feet to the fire.

Based on the CCF’s decision letters that have been received by this practitioner, it is clear that:

  • The CCF is generally adhering to the new time limitations for issuing decisions, with some decisions being issued even earlier than required;
  • The CCF is demanding cooperation from National Central Bureaus, and when they do not respond in a timely fashion, the CCF is proceeding to make a decision based on the information it has, rather than waiting or continuing the matter until the NCB provides a full response; and
  •  The decisions being issued by the CCF are generally accompanied by a reasoned explanation, detailing the Commission’s steps and considerations taken in reaching its decision.

These factors are critical to the CCF’s efforts at demonstrating transparency, and allow applicants to both appreciate the nature of the process, as well as to recognize that they were given a “fair shake” in INTERPOL’s processes. One would hope that the more lax NCBs recognize the shift in culture at the CCF, and become more compliant as a result. Whether they do or not, the CCF will benefit from the fact that it is protecting INTERPOL’s interests in transparency and the furtherance of human rights.

As always, thoughts and comments are welcomed.

Last month, a Swedish journalist of Turkish descent, Hamza Yalçin was finally released from detention in a Spanish jail awaiting an  extradition decision. Turkey has requested and received an INTERPOL Red Notice based upon an underlying charge of “terrorism” and insulting the Turkish president.

If he had been extradited, Mr. Yalçin would have faced over 22 years in prison for insulting the president of Turkey.  The journalist reportedly received asylum from Sweden many years ago based on his previous political activity in Turkey.   The facts that Mr.  Yalçin is a journalist and that he is an asylee from Turkey both render the Red Notice against him rather curious: INTERPOL has a policy in place that was enacted for the purpose of protecting asylees from further political persecution by the countries from which they fled, and notices against journalists are often requested based on their criticism of the requesting regime.

This is not the first time that Turkey has utilized its access to INTERPOL’s tools to aid in the prosecution of a journalist.  Earlier this year, German Chancellor Angela Merkel noted that Germany has had to modify its policies in dealing with Turkey, and that such abuses against journalists and critics cannot be tolerated.

Yalçin was released late last month, but not because the Red Notice was dropped: he reportedly was released because Spanish law did not allow for the extradition of  an asylee.

INTERPOL has an opportunity to highlight its commitment to human rights by subjecting Turkish Red Notice requests to additional scrutiny before issuing them, particularly where the subject is an author or journalist.

As always, thoughts and comments are welcomed.

A reader recently contacted Red Notice Law Journal to inquire about INTERPOL’s role in child kidnapping cases. This question  is unfortunately more common than one might imagine, and is likely to become more so as we continue to evolve into a more and more transient world.

INTERPOL’s involvement in child kidnapping, or abduction, cases, primarily involves Red Notices for the person accused of wrongfully taking the child out of an INTERPOL member country, and Yellow Notices for the child who is thought to have been wrongfully taken.

A Red Notice is issued when a person is wanted for a crime. This means that, until an arrest warrant (or its equivalent) for a criminal act has been issued for a person accused of kidnapping a child, INTERPOL cannot be used to assist in finding the accused person.

A Yellow Notice is issued for missing persons who have been kidnapped or have disappeared without explanation. No criminal charge is necessarily required for this type of notice to be issued regarding a missing child. For parents seeking the whereabouts of their children, even if there is no actual criminal charge pending against anyone for taking the child, a Yellow Notice may be requested through local law enforcement authorities.

Certainly, there are times when a Red Notice is improperly requested by a parent with the assistance of local law enforcement, often when a custodial parent has moved in compliance with a court order out of the country. In such instances, local law enforcement and INTERPOL may have no way of knowing that the Red Notice request was improperly requested until the custodial parent learns of the notice and informs INTERPOL of the actual nature of the case.

As always, thoughts and comments are welcomed.

We continue to receive reports, like this one, of individuals who are wanted in the United Arab Emirates or other areas in the Middle East, for bounced security checks. I addressed the basics of this issue in a previous post, here.  At the time, it appeared that efforts to bring this matter to the forefront, led by multiple attorneys such as Radha Stirling and those at Fair Trials International, would lead to a resolution of these types of notices. While we have all had success in handling the Red Notices stemming from bounced security checks, here we are several years later with this issue is still lingering, causing incredible hardships for the subjects of the Red Notices.

The use of security checks in the Middle East

In many countries in the Middle East, where established credit verification mechanisms are still in development or are not widely used in the same manner as other parts of the world, financial institutions require the individual seeking the mortgage loan to execute an undated security check in the full amount of the mortgage. It is understood by all parties that the borrower does not have the full amount of the check in the bank.  If the mortgage payment is missed, the financial institution will deposit the check, which will “bounce,” or be returned for insufficient funds, and the institution will then foreclose on the property.

However, it also eventually became the practice of many financial institutions in the Middle East to also refer the check to the local police for criminal prosecution, despite the lack of evidence of any fraudulent or criminal intent. The property is then reverted back to the financial institution’s possession. If the borrower is not in the country, a Red Notice is often requested to aid in criminal prosecution.

As a result of this practice, many foreign nationals who are relocated by their employers, or who are forced to leave the country when they lose their jobs, and thus their legal status, find themselves in the situation where they no longer have the income that allowed them to qualify for the mortgage loan, and can no longer legally live or work in the country, but are being pursued for criminal charges that they have no way of resolving.

Request to INTERPOL for a policy statement

Earlier this month, I made a request for a policy statement on this issue to INTERPOL. The request was acknowledged and we now await the statement. It is important that INTERPOL issue a public statement regarding its stance on this issue, lest private financial institutions continue utilizing even the threat of INTERPOL involvement in cases where such involvement is improper.

It is critical for both INTERPOL and its member countries that INTERPOL’s tools not be used for improperly based charges, and that INTERPOL be utilized as an effective law enforcment organization, rather than a debt collection agency for certain member countries.

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.

Today’s post is by attorney Yuriy Nemets, who has given considerable thought to the issue of INTERPOL’s refugee policy, how it is being implemented, and how it might be further developed.

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INTERPOL’s New Policy on Refugees: Is Everything Settled?

Yuriy L. Nemets, Esq.

Managing Member at Law Office of Yuriy L. Nemets PLLC

LL.B., J.D., LL.M., Ph.D.

 In February 2015, INTERPOL disseminated among its national central bureaus (NCBs) a new policy regarding red notices and diffusions seeking detention of individuals with refugee status.  According to the new policy,

[i]n general, the processing of red notices and diffusions against refugees will not be allowed if the following conditions are met:

  • the status of refugee or asylum-seeker has been confirmed;
  • the notice/diffusion has been requested by the country where the individual fears persecution;
  • the granting of the refugee status is not based on political grounds vis-à-vis the requesting country.

By adopting this new approach, the organization officially recognized that when it comes to international police cooperation, the advancement of which is the organization’s primary aim, refugees deserve INTERPOL’s special protection.  This special protection is necessary to shield refugees from member states that abuse INTERPOL’s channels to persecute political opponents and other victims of corrupt criminal prosecutions.  Protection of individuals from persecution is one of INTERPOL’s primary objectives.  It is beyond dispute that the new policy furthers that objective.

Several provisions of the new policy deserve closer examination, however.  The policy stipulates that it is to be applied “in general.”  By making this reservation, INTERPOL retains the right to deviate from the provisions of the policy when the organization deems it necessary.  INTERPOL has indicated that the objective of the new policy is to “support member countries in preventing criminals from abusing refugee status, while providing adequate and effective safeguard to protect the rights of refugees.”  If INTERPOL finds it necessary to be able to take a closer look at some red notices or diffusions issued against refugees, it is crucial that the organization include an exhaustive list of such exceptions in the new policy.  This will help avoid ambiguities and better protect the rights of refugees.  Such a list should be limited to serious international crimes (genocide, crimes against humanity, war crimes), terrorism, maritime piracy, and trafficking in illicit drugs, illegal arms, and dual-use goods and technologies.  If the charges underlying the red notice or diffusion do not fall under any of the exceptions, INTERPOL should prohibit any use of the organization’s channels with regard to the refugee.

Another provision of the new policy that merits attention lies in the three-prong test, which is essentially the backbone of the policy.  It appears that the third prong of the test is more likely to raise questions and doubts: “the granting of the refugee status is not based on political grounds vis-à-vis the requesting country.”  The provision appears to stipulate that instead of reflecting the demarche by the country of asylum to spite the country that issued the red notice or diffusion, the decision to grant refugee status must be based on proper application of the 1951 Convention Relating to the Status of Refugees and, in particular, on the asylum seeker’s “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.”  INTERPOL does not specify what evidence it takes into consideration as proof of the existence of a political conflict between the countries involved or the effect the conflict has on the decision to grant refugee status.  In addition, publication of a red notice or diffusion in INTERPOL’s databases, when the organization is aware of a political dispute surrounding the red notice or diffusion, is contrary to the principle of INTERPOL’s neutrality, which is a cornerstone of all the organization’s activities.  The principle of neutrality is enshrined in Article 3 of INTERPOL’s Constitution according to which, “[i]t is strictly forbidden for the Organization to undertake any intervention or activities of a political, military, religious or racial character.”  Over the years, INTERPOL has developed “case law” under Article 3 that reflects the organization’s commitment to avoiding involvement in any political disputes among the member countries.  The better approach for INTERPOL would be to delete the red notice (or diffusion) and allow the countries to resolve their political differences without the organization being involved in any way.

It is also important to emphasize that the new policy does not provide for an exception to the general presumption that before an individual requests deletion of the red notice or diffusion from INTERPOL’s databases, the individual must, according to the Operating Rules of the Commission for the Control of INTERPOL’s Files, provide “sufficient evidence” that he or she knows that there is information about him or her in the organization’s databases.  Because INTERPOL does not make information in its databases accessible to the public without obtaining consent from the country on whose behalf the information is recorded, refugees often learn that there is a red notice or diffusion against them only after they are detained due to the INTERPOL alert.  Detention may lead to prolonged extradition proceedings and potentially extradition; in either case, the rights provided for in INTERPOL’s policy on refugees come too late.

Indeed, in a number of instances refugees were detained because of a red notice or diffusion recorded in INTERPOL’s databases.  One of the most recent cases, which also occurred after INTERPOL began to implement the policy on refugees, is the arrest of Mehdi Khosravi, an Iranian national with refugee status granted by the United Kingdom.  Italian law enforcement detained Mr. Khosravi, acting on the red notice issued by Iranian authorities.  Although Italy released Mr. Khosravi within days of the arrest, this case of swift justice is the exception rather than the rule.  Consider, for example, the case of Paramjeet Signh.  In 2000, the United Kingdom granted Mr. Signh refugee status.  In December 2015, Portuguese authorities detained Mr. Signh, acting on the red notice India issued against him.  Mr. Signh spent two months in detention before Portugal released him.  Petr Silaev, a recognized refugee from Russia, spent even longer, six months, in detention after Spanish authorities arrested him due to the request Russia disseminated through INTERPOL’s channels.  These and other similar cases show that effective measures are needed to prevent the abuse of INTERPOL’s channels with regard to refugees before, not after, such abuse takes place.

INTERPOL must make an exception for refugees to the requirement that an individual prove that he or she knows that there is a red notice or diffusion against him or her in the organization’s databases.  Any individual with refugee status must have the right to demand that INTERPOL delete the information about him or her issued by the country where he or she fears persecution from the organization’s databases without providing any evidence of such knowledge.  INTERPOL must create and maintain a secure and confidential database containing the names and other relevant information about individuals with refugee status.  Any refugee must have the right to have his or her name and other relevant information added to the database.  INTERPOL must monitor all requests disseminated through its channels and compare each request with the database.  If a request is issued by the country whose nationality the individual enjoyed before he or she was granted refugee status, INTERPOL must refuse to publish the request in its databases.  These measures may contribute to the prevention of abuse of INTERPOL’s channels with regard to refugees.

INTERPOL’s efforts to protect individuals from persecution and abuse of the organization’s channels are undoubtedly welcome.  The new policy, however, needs improvement to help INTERPOL achieve that objective and better protect the rights of refugees.

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Many thanks to Mr. Nemets for his thoughtful and well-reasoned approach to this subject.

As always, thoughts and comments are welcomed.