Challenging INTERPOL Red Notices: what do the CCF's decisions tell us? Part One - Merits of the Case
INTERPOL is required to review all requests for Red Notices before publication to ensure they comply with its own rules and principles. Nevertheless, with limited resources and often limited knowledge of the facts on the ground, this review can be cursory. This lack of proper scrutiny allows some member states to abuse the Red Notice system and use it to facilitate improper activities, such as persecuting political opponents.
Whilst the system is vulnerable to political abuse, Article 3 of INTERPOL’s constitution forbids the organisation from undertaking any intervention or activities of a political (or military, religious or racial) character. This provides a basis for arguing that a Red Notice should be deleted and is often relied upon by those who are targeted because of their political beliefs or associations.
When considering such arguments, the CCF applies the ‘predominance test’ and considers whether the political elements of the case are predominant over the ordinary criminal law aspects. The CCF will consider factors such as the nature of the offence, namely the charges and underlying facts, the status of the persons concerned, the identity of the source of the data, the position expressed by any other member states or international entities, obligations under international law, implications for the neutrality of INTERPOL and the general context of the case.
In one case from 2017, the applicant had family connections to the former president and had held senior positions in companies linked to the former government of that country. After the fall of the regime, the applicant fled the country and criminal proceedings were initiated against him shortly thereafter. He argued that the criminal case was merely a form of political retaliation by the new government. The CCF accepted his connections with the former president, but noted that the case concerned ordinary law crimes and the requesting state had provided comprehensive information indicating a potential abuse of position by the applicant for personal gain. The CCF was not persuaded that the case was predominantly politically motivated and therefore decided not to delete the Red Notice.
The CCF took a similar approach in a 2019 case, which concerned a Red Notice against a senior manager of a state-controlled company arising from allegations of financial crime. In his request for deletion of the Red Notice, he argued that the case was politically motivated and pointed to his connections with the former administration. The CCF rejected this argument as it could not understand how his weak political connections, common to all holders of high-level government-appointed positions, would have made him a likely target for political retaliation. The requesting state had demonstrated that the offences were serious ordinary-law crimes and had provided sufficient information establishing the applicant’s possible personal effective participation in them.
In a different case from 2017, however, the CCF was persuaded to delete the Red Notice following the applicant’s claims that the case was politically motivated and there had been a lack of due process during his trial in absentia. The CCF considered these issues together, noting the inextricable link between the political context of the case and the fairness of the proceedings. In addition to the fact that the applicant was a political opponent in the requesting state, the CCF pointed to various decisions from international entities and judicial authorities criticising the conduct of the authorities in this and related cases. These independent decisions referred to politically-motivated attacks and other information concerning the political character of the case, and found that fair trial rights and other human rights had been violated. The CCF was unable to ignore these points and decided that the political elements of the case were predominant over the common law crime elements. As such, it had considerable doubts that the proceedings were based on the rule of law and the Red Notice was deleted accordingly.
Political arguments are among the most common of those relied upon when requesting the deletion of a Red Notice and the cases referred to above offer just a snapshot of the sorts of issues which commonly arise. However, they demonstrate three important points. First, the mere fact that a criminal case has a political context or involves people with political connections is not enough to persuade the CCF to delete a Red Notice; it must be shown that these political elements are predominant over the ordinary criminal law aspects of the case. Second, the CCF places great reliance on the decisions of other member states, tribunals or organisations which relate to the case under consideration. If an applicant can point to a favourable decision to support their case, their request for deletion will have more weight. Third, inter-related arguments make a case much stronger. If an applicant claims that the case against them is politically motivated, pointing to a lack of information demonstrating their possible effective participation in the alleged offences strengthens that argument; the lack of any substance to the allegations highlights the fact that the criminal case is nothing more than political persecution.
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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