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Challenging INTERPOL Red Notices: what do the CCF's decisions tell us? Part One - Merits of the Case
The purpose of a Red Notice is not only to locate a suspect or convicted person, but, once located, for steps to be taken to facilitate that person’s surrender to the requesting state, usually through extradition proceedings. When attempts to extradite that person are unsuccessful, however, this does not automatically lead to the deletion of the Red Notice and, as several of the published decisions demonstrate, the CCF does not consider it a valid reason for deletion in itself.
In one case from 2019, the extradition of an alleged accomplice of the applicant in the same criminal case had been refused. This was partly because the corresponding offences in the country in which he was located would not be prosecutable due to the statute of limitations, meaning that extradition would not satisfy the requirement for ‘dual criminality’. Requesting deletion of his Red Notice, the applicant argued that his own extradition would most likely be denied on similar grounds and so the Red Notice could not serve its purpose. Similarly, in a case from 2018, the requesting state knew of the applicant’s location but, because the country in which he was located did not extradite its own nationals, it had not requested his extradition. The applicant argued that because he could not be extradited as a matter of law, the Red Notice served no purpose and should be deleted. The CCF was not persuaded in either case and refused to delete the Red Notices.
A different decision was taken in a number of other cases. For example, in a 2018 case, the applicant’s extradition had been refused because of a risk that he would be subjected to torture whilst detained in the requesting state and would not receive a fair trial. These risks were heightened because of his ethnicity and nationality. The CCF was persuaded to delete his Red Notice. In a later case from 2019, the applicant’s extradition had been refused due to his serious and worsening health conditions, in circumstances where there was a strong likelihood of irreparable harm to his health in the event of extradition. The CCF decided that continued publication of the Red Notice would not be compliant with its rules and it was therefore deleted.
The key difference between these cases is that, with the latter two, the reason for deletion was one which would continue to apply regardless of where the applicant travelled and from which country his extradition was requested. For as long as the risk of human rights violations in the requesting state continued, extradition would not be compliant with the rights guaranteed under the Universal Declaration of Human Rights, with which INTERPOL is required to comply by virtue of Article 2 of its constitution. The Red Notices could serve no useful purpose for as long as this risk remained. By contrast, the other decisions concerned issues which were specific to the domestic law of the countries in which the applicants were at that time located. At some stage in the future they might travel to a country whose criminal law did not impose such a restrictive statute of limitations or which did not refuse to extradite its own nationals, and therefore extradition would be possible. The Red Notices could, as far as the CCF was concerned, continue to serve a useful purpose.
Whilst we might consider the CCF’s reasoning to be somewhat at odds with the reality of life for the subject of a Red Notice, where the fear of arrest and extradition if they attempt international travel essentially makes them a prisoner in the country in which they happen to be located at that time, these cases nevertheless demonstrate an important point: the mere fact that extradition has been refused in one jurisdiction does not mean that a Red Notice will be deleted. The grounds for refusal must go to an issue which will continue to apply regardless of where the requested person may travel in future.
One final point to note is that in cases such as these where the CCF decides not to delete a Red Notice, it will usually update the applicant’s file with a reference to the fact that extradition has been refused. This will be of little comfort to the requested person, and the extent to which it has a meaningful impact on reducing risks if they travel is doubtful, but it does at least show a willingness by INTERPOL to maintain the accuracy of its data.
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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