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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.

The Russian Federation is one of INTERPOL’s 190 member countries, which means that it has the privilege of using INTERPOL’s databases to help it track down wanted suspects and convicts for prosecution and sentencing.  Along with that privilege comes the obligation to follow INTERPOL’s rules, not the least of which are the requirements that every member country abide by the Universal Declaration of Human Rights and uphold their own due process laws.  Additionally, member countries must not use INTERPOL’s channels to pursue politically motivated  or corruptly filed criminal charges.  When countries violate their obligation to uphold these tenets, INTERPOL’s rules specifically provide that those countries can be sanctioned in a variety of ways.

While INTERPOL has refused to issue certain Red Notice requests as made by the Russian government, anecdotal evidence shows that its quasi-appellate body, the Commission for the Control of INTERPOL’s Files (CCF), is still accepting representations by the Russian government that it is in compliance with its above-stated obligations.  A recent decision by the CCF contained the statement that Russian authorities had provided “satisfactory  elements regarding compliance with … the Universal Declaration of Human Rights.”

Honestly, this kind of statement is stunning, given the international recognition and condemnation of the ongoing and endemic violations of human rights in Russia. In addition to the increasing drum beat of criticism of Russia’s human rights record, now another NGO has issued a statement, yet again affirming the truly horrific human rights violations still occurring in Russia.

The Open Dialog Foundation released a statement on May 9 regarding the involvement of Russian officials in the ‘Magnitsky list’ who are also involved in other politically motivated criminal proceedings in Russia. Open Dialog advocacy officer Thomasz Klosowicz presented information on other politically motivated criminal prosecutions and connected these cases to officials who were also connected to the Sergei Magnitsky case. The Red Notice Law Journal has previously addressed the Magnitsky case here and here.

In its statement, Open Dialog addressed the cases of Nadiya Savchenko, a former Ukrainian pilot and politician convicted for the murder of Russian journalists; the protestors of Bolotnaya Square and Manezhnaya Square, prosecuted for being members of opposition movements and organizations; the leaders of Yukos, accused of fraud and tax evasion; and Mukhtar Ablyazov, a opposition politician and businessman accused of embezzling funds. The purpose of the statement is to demonstrate how corruption and oppression in Russia has led to the abuse and exploitation of both its citizens and foreign nationals, and to serve as a call to action to raise awareness and prevent the unjust treatment and prosecution of these individuals. The Open Dialog Foundation says that it aims to identify that corruption in Russia is systemic and in direct violation of human rights laws.

As Russia’s human rights abuses continue to grow, the question must be asked, at what point does INTERPOL apply the sanctions available to it since its rules were changed in 2012, and hold Russia consistently accountable for its abuse of INTERPOL’s systems?

As always, thoughts and comments are welcomed.

*(RNLJ thanks journalism student Elayza Gonzalez for her contribution to this post.)

 

It would seem to all observers of the William Browder case that INTERPOL’s most recent consideration of Russia’s request to issue a Red Notice against Mr. Browder would result in a swift denial, that has not happened.

Instead, INTERPOL is taking its time in issuing a decision on the matter, and has not issued any indication of what its decision might be, as reported here.  INTERPOL’s reconsideration of the case was previously discussed in this blog;  and INTERPOL has previously issued public statements on the matter not just once, but twice. The organization found that Russia’s request was predominantly political in nature and therefore INTERPOL was prohibited from being involved in the case.

Given INTERPOL’s former statements on the case and Russia’s colossal judicial corruption problems, it is difficult to imagine that INTERPOL would change course at this point.

As always, thoughts and comments are welcomed.

 

 

 

In the last post, I discussed the endemic corruption in Russia’s courts and the need for INTERPOL’s heightened scrutiny of Russia’s Red Notice requests.  Today’s focus is on the reason that some litigants fare much worse than others in Russia’s courts, and how that affects INTERPOL.

While Russians generally seem to agree that basic, low-level civil disputes between similarly-situated litigants are commonly handled in Russian courts with an efficient turnaround time and relatively fair resolutions, disputes between individuals with differing levels of power are another matter entirely.

Last year, Reuters reporter Danielle Wiener-Bronner explained the reason for this distinction in her article, “The Russian legal system’s split personality.”  Complainants in Russia understand that more powerful litigants have both the ability to influence the judiciary and the confidence to litigate in court knowing that their influential efforts are likely to succeed.  The “more powerful litigants” may be wealthy individuals or officials within the Russian government. This influential ability extends to criminal cases as well, as has been addressed in this blog previously here. 

Recent news from Russia appears to confirm that Russian authorities continue to use the courts for political purposes.  The Wall Street journal reported in June that Russian authorities filed criminal fraud charges against three supporters of opposition candidate Alexei Navalny.  

Criminal charges have also been filed against Gleb Fetisov, a Russian businessman and billionaire.  In a case that echoes many Red Notice cases from Venezuela and Ecuador, financial charges were filed against him after a bank he no longer owns was accused of failing to maintain liquidity in a manner that would allow it to meet its financial obligations. Fesitov has supported opposition party leaders, which is not surprising in Red Notice cases, but is unusual for most wealthy individuals in Russia.  There is reportedly an “unspoken agreement that the rich don’t support the opposition,” and Fesitov supporters believe that his criminal case is a consequence of his political activity.

Another current example of Russia’s request for Red Notices in political-or business-based cases is that of Nikolay Koblyakov. The Telegraph reporter Peter Oborne described the case as follows:

On returning to Russia, [Koblyakov] started a chain of care homes for the elderly which seem to have been both compassionate and profitable. As so often happens in Russia, competitors with the backing of the regime forced him out of business.

Since then, Mr Koblyakov has lived in Paris, where he was a founding member of Russie-Libertés, an NGO that campaigns for Russian democracy. He participated in protests involving Free Pussy Riot, the controversial 2014 Winter Olympics in Sochi and a demonstration under Ukranian flags outside the National Assembly in Paris on the night of Putin’s D-Day anniversary dinner with President Hollande.

Mr. Koblyakov now faces criminal charges; his extradition hearing in Bulgaria has been continued until October, and his request to leave the country temporarily was denied.

When these types of cases create the basis for Red Notices, INTERPOL is left to sift through the evidence presented by the Red Notice subject and decide whether to hold Russia accountable for its historic and current corruption problem, or whether to turn a blind eye and to trust that Russia is abiding by its obligations as an INTERPOL member country.  Based on the news out of Russia lately, it seems that INTERPOL will have ever-growing opportunities to make those decisions. 

As always, comments and thoughts are welcomed.

 

 

INTERPOL has received improper requests for Red Notices from Russia in the past, and all current indicators point to a worsening of the situation rather than an improvement.

Russia is an INTERPOL member country and is currently ranked 28 on Transparency International’s corruption index.  A score of 28 means that Transparency International has determined that Russia is close to the “highly corrupt” end of the corruption scale, and is more corrupt than 126 other evaluated countries. NGO Freedom House rated Russia’s political rights at a 6 out of 7 (a 7 is the worst on the scale).  Amnesty International has found that,

Despite ongoing attempts to improve the efficiency and independence of the judiciary, alleged political interference, corruption and the collusion of judges, prosecutors and law enforcement officials continued to result in frequent reports of unfair trials.

Individuals are not the only victims of corruption in Russia.  Companies are also frequently targeted by Russian officials.  Jens Berthelsen, an anti-corruption specialist who prepares companies for doing business in Russia, was quoted in CNBC’s “Is Russia Too Corrupt for International Business” about the plight of business entities in Russia:

 Companies often face extortion or have court cases brought against them.

Based on the deeply entrenched corruption in Russia’s court and political systems, it would seem that the country would be a great candidate for INTERPOL’s list of problem members.  INTERPOL has recognized in the past that certain of its member countries were abusive (my word) of INTERPOL’s tools.  For example, INTERPOL’s Secretary General visited Venezuela in 2011 and the organization engaged in significant efforts to open “direct channels of communication between Venezuela’s Fiscalia and INTERPOL’s Office of Legal Affairs” (INTERPOL’s words).  Following INTERPOL’s recognition of certain member countries’ abusive INTERPOL activity, it has appeared from the practicioner’s perspective that INTERPOL has viewed Red Notices from those countries with a more skeptical eye than before.

And that may already be the case with Russia.  In terms of high-profile cases, INTERPOL has refused to issue Red Notice requests where issuing the Notices would violate its rules.  Where the cases are less publicized, however, we should expect that INTERPOL will review the Notices only upon the request of the Red Notice subjects and/or their attorneys.

In the next post, I’ll address the issue of Russia’s “two parallel court systems” for run-of-the-mill cases and cases with litigants having extreme power differentials.

As always, thoughts and comments are welcomed.

 

As was discussed here last Thursday, Russian officials publicly reported that INTERPOL was considering Russia’s third request to provide assistance in locating and apprehending William Browder.  

INTERPOL has twice rejected Russia’s requests based on the political nature of the case, and it now appears that the third time will not be a charm for Russian authorities.

INTERPOL’s press office responded to Red Notice Law Journal’s inquiry on this subject, stating that

[T]he situation with regards to Mr Browder remains unchanged. As per the previous decisions by both the CCF and the INTERPOL General Secretariat, no information about Mr Browder is contained in INTERPOL’s databases.

As always, thoughts and comments are welcomed.

 

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.

 

The issue of Russia’s request for INTERPOL’s help in locating William Browder was previously covered here.  Mr. Browder sought the removal of his data from INTERPOL’s files, and his request was granted.  Since that time, Russia’s interest in Mr. Browder has continued, and earlier this week, Russia requested a Red Notice in Mr. Browder’s name.  

As of yesterday, INTERPOL issued a public statement regarding Russia’s most recent request for INTERPOL’s assistance against Mr. Browder: 

Today, Friday 26 July, INTERPOL received another request from the National Central Bureau of Moscow concerning Mr Browder, this time seeking to locate and arrest Mr Browder with a view to his extradition on a charge of ‘qualified swindling’ as defined by the Russian Penal Code.

INTERPOL considers this charge to be covered by the previous decision of May 2013. Therefore all information related to this request for Mr Browder’s arrest has been deleted from INTERPOL’s databases and all INTERPOL member countries have been informed accordingly.

While it is unusual for INTERPOL to issue a statement regarding a decision to deny or grant a Red Notice request, Mr. Browder’s case is also unusual, particularly in terms of the level of attention his case has received.  INTERPOL went on to explain the publication of the reasoning behind its decision:

INTERPOL has taken the decision to make its decisions and actions public in response to the Russian Federation’s request, given their public statement on the matter.

The issues in Mr. Browder’s case were determined to have been politically motivated and thereby prohibited by INTERPOL’s constitution.

As always, comments and questions are welcomed. 


Last week, INTERPOL immediately announced its decision to remove investment banker William Browder from its databases, thereby denying Russia’s request to keep Browder’s information in circulation between its 190 member countries.  The background between Mr. Browder and Russian officials is found here, in an article by David M. Herszenhorn.

INTERPOL’s press statement regarding the CCF recommendation is here.

The decision is certainly a significant one, but on its merits is not unheard of.  INTERPOL’s “appellate” body, the Commission for the Control of INTERPOL’s Files (“CCF”), routinely receives requests for removal of information from INTERPOL’s databases.  So what makes Mr. Browder’s request and decision unusual, and what part of his case is “run of the mill” for INTERPOL?  Let’s take a look:

The complaint:  the fact that a complaint was even filed is unusual.  Out of all the wanted individuals in INTERPOL’s databases, only 170 people (.35% of subjects) filed complaints in 2011.  This makes sense, given that requests for assistance with criminal apprension are presumed to be, and should be, valid.

The basis of the complaint:  Mr. Browder’s complaint alleged political motivation as the primary basis for Russia’s request that INTERPOL circulate his data.  This basis for a complaint to the CCF is not all that unusual, as it was raised in 29% of complaints in 2011.

The CCF’s decision about the complaint: The CCF decided to withdraw Mr. Browder’s information from its databases.  A decision to cancel a search of a subject or to destroy the information in INTERPOL’s databases was made in approximately 19% of cases heard by the CCF in 2011.  When we consider that many challenges to Red Notices and other notices are improperly and/or poorly prepared, and may or not be validly based, that percentage is a higher rate than one might expect.

The announcement of the decision:  The news release about the CCF’s recommendation and the General Secretariat’s decision to follow the CCF’s recommendation is obviously not a routine matter. Very few cases become the subject of a news release by INTERPOL.  The international drama that occured in the background of this particular case nearly mandated the news release.

The timing of the announcement of the decision: Here’s where Mr. Browder’s case is highly abnormal.  While the CCF has been willing to advise a complainant or his attorney as to the date that his case is likely to be considered by the CCF, it is very unusual to learn of the decision on the same date of the hearing.  

The grounds for the decision: The fact that the CCF provided a reason for its decision is to be expected, certainly in a case that has been monitored so closely from so many corners of the globe.  But the CCF frequently provides a basis for its decision, either in its response letter or after an inquiry regarding the grounds for the decision.  

As always, thoughts and comments are welcomed.

* Statistical references are gleaned from the CCF’s most recently published report, which is the Annual Report for 2011.