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Challenging INTERPOL Red Notices: what do the CCF’s decisions tell us? Part Two - Politically Motivated Cases
Requests for deletion are considered by the Commission for the Control of INTERPOL’s Files (“CCF”), an independent body that ensures INTERPOL’s processing of data is compliant with the organisation’s rules. The workings of the CCF have an air of secrecy to them, with closed sessions and little opportunity for direct communication with its members. However, the relatively recent practice of the CCF to publish anonymised extracts from its decisions (albeit with significantly reduced facts) provides some insight into how it approaches requests for deletion of Red Notices.
In this series of blogs, we look at some of the key points arising from these published decisions. This first blog considers the limitations of the CCF’s assessment of the merits of a case.
Our clients are often surprised to learn that forensic scrutiny of the criminal case against them and determining whether there is a compelling counter-narrative to the allegations are not the focus of the CCF’s analysis when considering deletion of a Red Notice. The CCF has a very limited role when it comes to analysing the evidential strength of a case and any arguments or information which fall outside this will not be considered. The CCF considers only whether the requesting state has provided a clear description of the criminal activities of the requested person and sufficient information linking them to the charges which indicates their possible effective and personal participation in the offence(s).
The CCF will not go beyond this. It will not decide whether, on the evidence presented to it, it feels that guilt is more likely than not, nor whether it finds the requested person’s evidence more compelling. It does not take on the role of judge or jury. This is a matter for the national courts and is not within the CCF’s jurisdiction. It is not sufficient, for example, for a requested person to simply present the CCF with evidence in support of their innocence.
These points are demonstrated by a number of reported decisions. In one case from 2019 relating to alleged mismanagement of a company, corruption and embezzlement, the applicant argued that the prosecution authorities in the requesting state had not adduced any evidence of deliberate fraudulent actions, dishonest behaviour or illicit enrichment. He claimed that major restructuring within his corporation made the task of determining his alleged role in the criminal activity complex and financial losses were attributable to the economic crisis and normal business fluctuations. The CCF did not engage with these arguments. Instead, it stated that it was not empowered to conduct an investigation, to weigh evidence or to make a determination on the merits of a case, as these issues must be left to the competent national authorities to decide at trial or during extradition proceedings. The CCF was satisfied that there were sufficient elements demonstrating the applicant’s possible commission of criminal offences and therefore the minimum requirements for issuing a Red Notice were met. The CCF made clear the fact that it was not making any pronouncement on the applicant’s potential criminal responsibility.
Similar issues arose in another case from 2019 in which the applicant requested the deletion of a diffusion. A diffusion is an alert circulated directly by one member state to other member states and is less formal than a Red Notice, but the same rules and principles are engaged. The applicant in this case made a general plea of innocence and provided a detailed narrative of the context to the case. He argued that the charges against him had been fabricated by particular individuals for their personal interest, which included an intention to assume ownership of his properties. In its decision, the CCF repeated its general policy of not examining evidence or making a judgment on the guilt or innocence of a requested person. It emphasised that it does not rely on an alternative narrative of innocence provided by an applicant as the sole basis for a successful challenge. The applicant’s submissions concerning fabrication of charges for personal interest raised questions which more appropriately fell under the jurisdiction of national authorities and so the CCF could not reach a conclusion on these. All that the CCF could do was determine whether the requesting state had provided a clear, succinct and coherent description of the applicant’s possible involvement in the alleged offences.
The CCF’s approach in these cases highlights the limited role it plays in assessing the evidential basis of Red Notices. In preparing a request for deletion, understanding the full background to a case and carefully examining the allegations are essential, but submissions to the CCF concerning the merits of a case must be framed in a way which demonstrates a lack of evidence of the requested person’s possible effective participation.
For further information on the issues raised in this blog, please contact a member of our International Crime and Extradition team.
Will Hayes is a Associate (Barrister) in the Criminal Litigation team and represents individuals and corporate clients in a range of criminal cases. He has represented clients in cases covering the full spectrum of general crime, cases with an international dimension and represents clients defending extradition requests and challenging Interpol Red Notices. Will has a particular interest in legal professional privilege (LPP) and has developed a comprehensive understanding of the law and its practical application.
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