Category: Entrepreneurs on the INTERPOL List

Application of the “Private Disputes” Provision and Article 3 of the INTERPOL Constitution: the Need for Clarification

Application of the “Private Disputes” Provision and Article 3 of the INTERPOL Constitution: the Need for Clarification

INTERPOL Headquarters, Lyon, France

Under Article 83(1)(a)(i) of INTERPOL’s Rules on the Processing of Data (RPD), “Red notices may not be published for . . . offences . . . deriving from private disputes, unless the criminal activity is aimed at facilitating a serious crime or is suspected of being connected to organized crime.”  I am often contacted by entrepreneurs with red notices and diffusions published at the request of or disseminated by countries where illegal business takeovers are common.  Such takeovers are usually characterized by criminal conduct from a party attempting to force a business owner to surrender her/his rights or interest in the business against the latter’s will by means of force, threats and/or extortion and accompanied by trumped-up charges against the victim brought by corrupt government officials in aid of the takeover if the victim refuses to comply.  In its 2016 annual report, the Commission for the Control of INTERPOL’s Files (CCF) highlights politically motivated prosecutions of “particularly influential businessmen” among the main substantive issues before it.  In its 2017 report, the Commission notes that “[w]hile a few of [the cases challenging compliance with Article 3] involve former high-ranking politicians, most of them concern people involved in business activities and charged with various fraud-related offenses.”  In this regard, I believe it is crucial that the Commission inform the general public about its interpretation of the “private disputes” provision of Article 83(1)(a)(i) of the RPD in the context of illegal business takeovers.  Does the Commission consider illegal business takeovers described above private disputes for the purposes of Article 83(1)(a)(i) and red notices and diffusions arising out of such takeovers to be in violation of said provision?  In addition, it would be very helpful if the Commission provided examples or hypotheticals of what it would consider to be a “private dispute” for the purposes of Article 81(1)(a)(i) of the RPD.

It is my understanding that the Commission has been applying Article 3 of the INTERPOL Constitution in cases in which the initial reason for the criminal prosecution is not the individual’s involvement in any political, religious, military or racial activity, but rather the government’s participation in an illegal seizure of the individual’s assets or the government’s involvement in a civil dispute with said individual.  I believe the Commission has signaled this approach in at least two cases.  In one of its published decisions, the Commission ruled that the prosecution in aid of an attempt by government officials to take control of the individual’s assets was predominantly political and, therefore, in violation of Article 3.  In another case, the Commission ruled in favor of the individual who claimed that the prosecution was in retaliation for the arbitration proceedings against the requesting government.  I believe the Commission has also signaled this approach in its two most recent annual reports mentioned above.  However, these decision excerpts and annual reports merely suggest that the Commission has taken this approach; they do not unequivocally confirm that.  In this regard, it would be very helpful if the Commission officially clarified its position: does it consider Article 3 applicable in cases in which the initial reason for the criminal prosecution is not the individual’s involvement in any political, religious, military or racial activity, but rather the government’s unlawful conduct, including, but not limited to, illegal takeovers of businesses as described above, extortion by a government official threatening the individual with a trumped-up charge if s/he does not comply with the unlawful demand, or the government’s involvement in a private (civil or commercial) dispute with such individual?

CCF Latest Report: Enforcement Loopholes, Political Prosecutions of Businessmen, Lack of Transparency

CCF Latest Report: Enforcement Loopholes, Political Prosecutions of Businessmen, Lack of Transparency

INTERPOL Headquarters, Lyon, France

The Commission for the Control of INTERPOL’s Files (CCF) has published its new annual report.  It covers the Commission’s activities throughout 2017, including the transition it has undergone to comply with its new Statute adopted by the INTERPOL General Assembly.  The report also reflects on the problems with the enforcement of decisions to remove politically motivated or otherwise unlawful red notices and diffusions, the Commission’s application of Article 3 of the INTERPOL Constitution, and the lack of transparency in its public disclosures.

Last year, Spanish authorities detained Bill Browder, a prominent critic of Vladimir Putin.  Although the full circumstances of this arrest remain unclear, it has been alleged that Spain acted on an active Russian request disseminated through INTERPOL’s channels.  Prior to this arrest, Russia had made several attempts to publish a red notice against Mr. Browder.  INTERPOL had refused to cooperate and called the case predominantly political.  Nevertheless, in 2017, Russia reportedly succeeded in disseminating a diffusion against Mr. Browder.  Unlike red notices, diffusions aren’t subject to any screening from INTERPOL prior to their publication.

After Mr. Browder’s arrest in Spain, INTERPOL’s enforcement of the Commission’s decisions became the center of attention.  Did INTERPOL successfully block each and every red notice and diffusion already found to be in violation of its rules from being disseminated?  I can think of only two reasons why an individual found to be a victim of INTERPOL abuse would appear on the international wanted list at the same country’s request: either INTERPOL did not have a comprehensive mechanism that would match incoming red notices and diffusions with its prior findings of abuse, or the organization had an unspoken policy which would under certain circumstances allow the same governments to put victims of their abuse back on the wanted list.

According to its latest report, “[t]he Commission dealt with cases where the sources of data have sent a diffusion to INTERPOL members to request the arrest of an individual, whereas a request for a red notice has previously been refused.”  Moreover, “[i]t also processed requests which highlighted the use of the SLTD [(Stolen and Lost Travel Documents)] database where a diffusion or a notice to arrest a person was considered not to comply with INTERPOL’s rules.”  In the report, the Commission calls this practice “misuse of INTERPOL’s channels,” and notes that it deletes any such data and informs the countries which received it that its channels cannot be used in such cases.  The report, therefore, confirms that INTERPOL does not possess a comprehensive mechanism that would preclude the same governments from putting individuals found to be victims of red notice and diffusion abuse on the INTERPOL wanted list.  This is, of course, unfortunate, because the loophole should be easy to fix by simply implementing a reliable computer software.  The recent reforms aimed at guaranteeing individuals an effective remedy against INTERPOL abuse seem futile if governments can with impunity (taking into consideration INTERPOL’s unwillingness to punish countries-abusers) harass their victims by utilizing diffusions or the SLTD database. The question remains, after an abusive government exercises all these ‘options,’ is this the end of harassment, or is there yet another way to put the same individual back on the international wanted list by, for example, charging her/him with a new crime or issuing a different type of notice?

Another major takeaway from the Commission’s latest report is its application of Article 3 of the INTERPOL Constitution.  In its 2016 annual report, the Commission for the first time in its annual public disclosures recognized politically motivated prosecutions of businessmen among the main issues before it.  At the same time, it did not comment on its application of Article 3 in cases in which individuals have not actively engaged in any political activities but instead became victims of corrupt prosecutions, for example, in aid of an illegal takeover of their businesses or other proprietary rights.  Some of the published excerpts from the Commission’s decisions in individual cases suggest that it has applied Article 3 in such cases despite the fact that there has been no active political activity on the part of the individuals challenging the governments’ use of INTERPOL’s channels.  The 2017 annual report also suggests that the Commission has taken this approach: “While a few of [Article 3] cases involve former high-ranking politicians, most of them concern people involved in business activities and charged with various fraud-related offenses.”  Although the Commission still has not unequivocally confirmed that Article 3 applies in such cases, its published decisions and the latest annual report suggest that it does.

The third important takeaway from the 2017 report is that the Commission has still not truly become any more transparent and yet again avoided disclosing the names of countries that have violated its rules.  Despite the growing attention being paid to INTERPOL abuse, the number of instances in which the public learns about the countries-abusers and the nature of their violations is very low compared to the growing number of complaints the Commission receives from individuals.  In its 2010 annual report the Commission identified member countries against which it had received the majority of complaints without, however, naming the countries the Commission found to be in violation of INTERPOL’s rules and the nature of their violations.  None of the Commission’s reports for the following years, including its most recent report, identifies member countries against which the Commission has received complaints, the number of times the Commission found those countries in violations of its rules or the nature of their violations.  The Commission purview clearly empowers it to disclose this information to the general public.

American Bar Association Panel ‘Red Notices and the INTERPOL Wanted List: Balancing Law Enforcement with Due Process’

American Bar Association Panel ‘Red Notices and the INTERPOL Wanted List: Balancing Law Enforcement with Due Process’

On January 29, 2019, Theodore Bromund (The Heritage Foundation), Michelle Estlund (Estlund Law), Yuriy Nemets (Nemets Law Firm), Rebecca Schaeffer (Fair Trials) and Bruce Zagaris (Berliner Corcoran & Rowe) spoke at the event ‘Red Notices and the INTERPOL Wanted List: Balancing Law Enforcement with Due Process’ organized by the American Bar Association (ABA) and Association of Certified Financial Crime Specialists (ACFCS).  The panel discussed the problem of INTERPOL abuse by governments that use the organization’s resources to persecute political opponents and other victims of unlawful criminal prosecutions:

Bill Browder’s Case Highlights Loopholes in Relief INTERPOL Grants Victims of Red Notice Abuse

Bill Browder’s Case Highlights Loopholes in Relief INTERPOL Grants Victims of Red Notice Abuse

On May 30 of this year, acting on an INTERPOL alert, Spanish authorities detained Bill Browder, an outspoken critic of Vladimir Putin’s regime.  Prior to this arrest, Russia had reportedly made at least five attempts to put Mr. Browder on the international wanted list.  In the past, INTERPOL refused to cooperate, citing the Commission for the Control of INTERPOL’s Files (CCF), which concluded that his case was predominantly political.  After several hours and, reportedly, the personal involvement of the INTERPOL Secretary General, Spanish police released Mr. Browder.

The full circumstances of this arrest remain unclear.  According to some reports, at the time, there was an active Russian request to detain Mr. Browder published in INTERPOL’s database.  INTERPOL, however, denied its involvement, and some commentators argued that Spain could have acted on old information in its national database, which the country failed to update timely to reflect the changes in INTERPOL’s files.  In its public statement, INTERPOL denies that there has ever been a red notice against Mr. Browder recorded in its database, but as Ted Bromund rightfully notes, the statement “is economic with the truth.”  The fact that INTERPOL has never approved a red notice against Mr. Browder doesn’t mean that there has never been a diffusion against him in the organization’s database.  Unlike red notices, diffusions aren’t subject to any screening from INTERPOL prior to their publication.  Indeed, in 2017, Russia reportedly succeeded in publishing a diffusion against Mr. Browder.  That is, after several unsuccessful attempts to have INTERPOL approve a red notice, the Russian government took the easier path of publishing a diffusion, thereby bypassing any preliminary check from the organization.

Investigative Committee of the Russian Federation, Moscow

Whether it was a failure to update the national database or a new diffusion that led to Mr. Browder’s arrest in Spain, both can happen to anyone who has ever been on the INTERPOL wanted list.  As long as either of these scenarios exists, any relief the CCF grants victims of red notice or diffusion abuse is limited at best.

The fact that individuals remain under the threat of arrest just because INTERPOL and its member countries have failed to ensure that national and INTERPOL databases are simultaneously updated is, quite frankly, appalling.  Objectively, this should have been the first obvious step to ensure that decisions to remove individuals from the international wanted list were enforced.  At the same time, the lack of an official public statement from INTERPOL on how it works to prevent the publication of red notices and diffusions the CCF has already declared unlawful, is yet another reason to wonder if the organization even has a plan to deal with the problem.

The public deserves to know whether INTERPOL is committed to enforcing its own decisions not to cooperate with governments in individual cases.  Does the organization monitor all incoming red notices and diffusions to make sure they are not published if the CCF has already found them to be predominantly political or otherwise unlawful?  If it is a matter of finding and implementing a reliable technology, the loophole should be easy to fix: such monitoring could be conducted via reliable computer software.  If, however, it is a matter of policy and INTERPOL allows governments to publish red notices and diffusions already found to be in violation of the organization’s rules, the problem is much more serious.

The Prosecutor General’s Office of the Russian Federation, Moscow

If INTERPOL has interpreted its rules to mean that governments can, under certain circumstances, place individuals, whose complaints the CCF has already approved, on the international wanted list, then its interpretation is wrong.  Only the CCF has the power to reverse its own decisions.  Neither the INTERPOL Constitution nor its other regulations grant any other body that power.  If INTERPOL believes it can allow a government to put an individual, already declared a victim of INTERPOL abuse, on the wanted list if the government simply brings new charges, it is hard to imagine that INTERPOL doesn’t realize how easy it is for a government to come up with new trumped-up charges.

Whether it is a technological or a policy loophole that allows governments to continue to use INTERPOL to persecute individuals the CCF has already declared victims of red notice or diffusion abuse, that loophole must be closed immediately.  If INTERPOL fails to act, there will be many more cases like Bill Browder’s.  In the meantime, Russia is already reportedly considering its next, seventh, attempt to put him on the international wanted list.

INTERPOL Sees Increase in Complaints from Refugees, Highlights Politically Motivated Prosecutions of Businessmen Among Main Issues

INTERPOL Sees Increase in Complaints from Refugees, Highlights Politically Motivated Prosecutions of Businessmen Among Main Issues

In its 2016, most recent, annual report, the Commission for the Control of INTERPOL’s Files cites an increase in the number of complaints from refugees and for the first time in its annual public disclosures recognizes politically motivated prosecutions of businessmen among the main issues before it.  Although notable, the increase in complaints from refugees was expected.  In June 2014, the INTERPOL Executive Committee introduced a policy, which provided refugees with a somewhat simplified path to red-notice-free status.  It isn’t surprising, therefore, that more refugees have been petitioning INTERPOL to delete their information from its files.  However, that INTERPOL has finally publicly named politically motivated red notices issued against businessmen among its main issues is a very important development.

For a long time, long before the Commission’s 2016 report, entrepreneurs have been among the main targets of INTERPOL red notice abuse.  Nevertheless, INTERPOL would not admit the problem to the general public. Instead, human rights advocates and the media reported multiple individual cases.  Entrepreneurs who take on an active role in politics or find themselves in a dispute with a government or with someone closely connected to the government often become victims of corrupt prosecutions based on trumped-up charges.  Such prosecutions are regularly used to retaliate against entrepreneurs who refuse to cease their political activities, give up their business interests, or abandon legitimate civil lawsuits or administrative or criminal complaints.  Entrepreneurs who manage to leave their countries before the government restricts their freedom of movement are often arrested abroad, placed in extradition proceedings, find themselves unable to travel, do business, or simply open a personal bank account due to the red notice or diffusion recorded in INTERPOL’s files.

Article 2 of the INTERPOL Constitution requires international police cooperation to be conducted in accordance with the member countries’ national laws and in the spirit of the Universal Declaration of Human Rights, and Article 3 strictly forbids INTERPOL to undertake any “intervention or activities of a political, military, religious or racial character.”  An individual on the INTERPOL wanted list who believes that in the course of the criminal case the government violated the country’s laws, the Universal Declaration of Human Rights, or prosecuted the individual for her or his political beliefs should consider invoking Article 2 or Article 3 or both.  In addition, entrepreneurs should consider the “private disputes” provision of the INTERPOL Rules on the Processing of Data.  The provision prohibits the publication of a red notice if the offense behind it derives from a private dispute, “unless the criminal activity is aimed at facilitating a serious crime or is suspected of being connected to organized crime.”  Some of the Commission’s decisions regarding red notices and diffusions issued against entrepreneurs suggest that entrepreneurs may indeed benefit from the “private disputes” provision, for example, when a red notice or diffusion arises from a dispute of a civil, rather than criminal, nature and, therefore, must be resolved in the course of a civil, rather than criminal, trial.

The INTERPOL Repository of Practice contains very useful information about INTERPOL’s application of Article 3 to red notices and diffusions issued in a political context, including charges against current and former politicians, offences concerning freedom of expression, assembly, and association, security of the state, unconstitutional seizure of power, embargo and sanctions, and elections.  Since 2014, the Commission for the Control of INTERPOL’s Files has seen an increase in the number of complaints alleging violations of the Universal Declaration of Human Rights.  In this regard, INTERPOL has yet to compile a repository of practice on Article 2 of the Constitution, although the Commission has already started developing its own “case law” in this area.  Now, that the Commission has recognized unlawful prosecutions of businessmen among the main issues before it, it is time for the Commission and INTERPOL to admit  that the “private disputes” provision needs its own repository of practice.  Indeed, when engaging in corrupt prosecutions, governments often charge entrepreneurs with crimes of a business nature that may look like they are related to the entrepreneur’s professional activities and thereby lend the criminal case some appearance of legitimacy but in fact are used to illegally transform what really is a civil private dispute into a criminal case.  It is, therefore, crucial for INTERPOL and the Commission to be transparent about how they interpret and apply the “private disputes” provision and for that purpose compile, publish, and constantly update a detailed repository of practice.

Due to lack of deterrence, Russia’s INTERPOL membership is unlikely to be threatened despite numerous violations

Due to lack of deterrence, Russia’s INTERPOL membership is unlikely to be threatened despite numerous violations

The Moscow Kremlin, Russia

Bill Browder has called upon INTERPOL to suspend Russia’s membership after the country renewed its efforts to put him on the international wanted list. Despite five unsuccessful attempts, Russia’s law enforcement agencies hope to secure INTERPOL’s cooperation in Mr. Browder’s case. So far, the organization has been unwilling to cooperate and in a rare public statement about an individual case called it predominantly political. However, despite Russia’s repeated violations of INTERPOL’s rules in this and other cases, the country’s membership is unlikely in any danger.

Under its regulations, INTERPOL is authorized to suspend or withdraw any user’s access to the organization’s databases, including any of its member countries, if that user violates INTERPOL’s rules on data processing. It is unclear whether INTERPOL has ever used that power. Certain recent examples suggest that the organization would rather avoid punishing a country. For example, it has been reported that Turkey tried to put 60,000 individuals allegedly linked to the 2016 failed coup against President Recep Tayyip Erdogan on the INTERPOL wanted list. According to these reports, INTERPOL refused to sanction Turkey for what appears to be an unprecedented violation of the organization’s Constitution, which strictly forbids INTERPOL to undertake any intervention or activities of a political character. If INTERPOL is reluctant to punish governments for such egregious violations, is there a limit, which, if crossed, would eventually force the organization to sanction the government?

The Prosecutor General’s Office of the Russian Federation, Moscow

INTERPOL’s unwillingness to suspend or withdraw access to its resources is not without reason. A country without access to INTERPOL’s databases might not be able to identify criminals wanted by other countries or inform foreign law enforcement about criminals possibly entering their territories, which could be detrimental to regional and global security. However, without a punishment effective enough to deter governments from abusing INTERPOL’s resources, the organization will always remain a tool in the hands of oppressive regimes.

Turkey and Ukraine Trying to Involve INTERPOL in Mass Prosecutions?

Turkey and Ukraine Trying to Involve INTERPOL in Mass Prosecutions?

In July 2017, Hürriyet Daily News reported that Turkey tried to put 60,000 individuals allegedly linked to the recent attempt to overthrow President Recep Tayyip Erdogan on the INTERPOL wanted list. Only INTERPOL and Turkey know how many of those 60,000 people had a red notice or diffusion recorded against them. It is unclear whether INTERPOL’s efforts to rebuff the attempt to abuse its channels have been effective.

The New Mosque (Yeni Cami) in Istanbul, Turkey

Turkey is not the only country that has sought to use INTERPOL to persecute members of the same political, business, or other group en masse, although its attempt is one of the most egregious. Whether through a regular election or coup, an incoming government may decide to open a criminal investigation into the former cabinet members and use INTERPOL to locate them and seek their extradition. Ukraine is yet another recent example of a new government seeking INTERPOL’s cooperation in apprehending its predecessors.

Independence Square (Maidan Nezalezhnosti) in Kiev, Ukraine

It has been reported that INTERPOL denied most of Ukraine’s repeated requests to put Viktor Yanukovich, the ex-president of Ukraine, and many of his former cabinet members on the international wanted list. Ukraine has criticized INTERPOL’s unwillingness to cooperate and accused the organization of political bias. It is evident, however, that with regard to the requests from Turkey and Ukraine INTERPOL has been doing exactly the opposite: it has been trying to maintain its neutrality and avoid any involvement in politics, as Article 3 of its Constitution requires.

 

China and Russia INTERPOL Appointments: Assessing the Human Rights Impact

China and Russia INTERPOL Appointments: Assessing the Human Rights Impact

In November 2016, the 85th INTERPOL General Assembly elected INTERPOL’s new president and vice-president. Mr. Meng Hongwei, a Vice Minister of Public Security and the head of the INTERPOL National Central Bureau in China, became INTERPOL’s President, and Mr. Alexander Prokopchuk, the head of the INTERPOL National Central Bureau in Russia, a vice-president. The appointments raised concerns over INTERPOL’s ability to maintain its adherence to the organization’s core principles of neutrality, non-involvement in activities of a political character, and protection of individuals from member countries that use INTERPOL’s resources to persecute political opponents and other victims of unlawful criminal prosecutions. For a long time, China and Russia have been widely criticized for human rights violations. Could these appointments affect INTERPOL’s neutrality and commitment to human rights?

Tiananmen Square in Beijing, China

INTERPOL’s President heads the organization’s Executive Committee. However, it is the General Assembly, not the Executive Committee, that has the supreme authority in the organization. The General Assembly sets the standards and principles for all INTERPOL’s activities. It is composed of delegates that represent each of the 192 member countries. Each member country has one vote in the General Assembly, and a simple majority makes decisions, except when the INTERPOL Constitution requires a two-thirds majority. The General Assembly adopted INTERPOL’s Constitution, the Rules on the Processing of Data, and other fundamental texts INTERPOL must comply with. These sources require that INTERPOL act in accordance with the Universal Declaration of Human Rights, strictly prohibit the organization from engaging in any activity of a political, military, religious, or racial character, and forbid member countries to use INTERPOL’s resources to persecute individuals. Under the Constitution, the Executive Committee supervises the execution of General Assembly’s decisions. It is not within the Executive Committee’s purview to repeal or change them.

The Moscow Kremlin, Russia

The Commission for the Control of INTERPOL’s Files guards INTERPOL’s independence and adherence to human rights too. The Commission is an independent body that ensures INTERPOL’s compliance with the Constitution and other regulations. The Commission adjudicates individual requests for access to information in INTERPOL’s files and requests to delete information from the organization’s databases. Its Statute is adopted by the General Assembly and its decisions are final and binding on INTERPOL. The Executive Committee is prohibited from interfering with any of the Commission’s activities or influencing its decisions. Tasked with overseeing the implementation of the General Assembly’s decisions, it is the Executive Committee’s obligation to ensure the Commission’s independence as guaranteed by the INTERPOL Constitution.

As described in INTERPOL’s regulations, the mechanism intended to ensure INTERPOL’s neutrality, including its independence from high-ranking appointments within the organization, looks robust. Let’s hope it works.

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