INTERPOL "case law" Archives - Red Notice Abuse Report

INTERPOL’s Recent Decision Gives Hope to Those Falsely Accused of Tax Evasion and Other Financial Crimes

By Yuriy Nemets | October 20, 2024 | Comments 0 Comment

In one of its recently published decision excerpts, the Commission for the Control of INTERPOL’s Files considers a complaint filed by a business executive accused of fraud. In this case, the Commission ruled that the Red Notice at the center of the complaint must be deleted from INTERPOL’s files because it violated Article 83(2)(b)(i) of INTERPOL’s Rules on the Processing of Data (RPD). Under Article 83(2)(b)(i) of the RPD, a Red Notice must include a “summary of facts of the case which shall provide a succinct and clear description of the criminal activities of the wanted person, including the time and location of the alleged criminal activity.” In its rulings over the years, the Commission has interpreted these provisions to mean that a country-source of data must produce information that is “concrete and specific in the sense that it must clearly identify the role of the [individual], her specific criminal actions, the time and the means to commit the infraction,” that such information “should be precise, detailed and demonstrate, when relevant, a benefit or the intention to commit the offence.”

In this case, the Commission reasoned that the criminal charge on which the Red Notice was based, “falsely issuing exclusive value-added tax invoices,” was “defined under the relevant criminal law provisions submitted by the NCB . . ., but could be considered to be an offence of an administrative or civil nature rather than of a criminal nature.” In this regard, the Commission requested that the country-source of data “provide additional elements which would highlight the possible effective participation of the [individual] to a serious ordinary-law crime.” The Commission asked the country-source of data “specific questions, including whether the individual personally benefited from the fraud, or how the sums of [xxx] million of price tax, [Company 1] earnings of [xxx] million of commission charges, and [Company 2] illegal deductions of [xxx] millions of taxes were calculated and arrived at” (emphasis added). The Commission received “no specific answer from [the country-source of data] on these issues” and concluded that the “information available [could not] be considered as sufficient to demonstrate any criminal act, criminal intent, or personal benefit, and consequently d[id] not satisfy the requirements of Article 83 of the RPD which call for a clear description of the criminal activities of the wanted person.”

This case is extremely important because in it the Commission has demonstrated its willingness to consider evidence that often requires specialized knowledge. Evidence in tax evasion and other financial crime matters is often highly complicated and requires expertise in national finance and tax laws as well as in accounting. It remains unclear how far the Commission is prepared to go in its consideration of such information. It is fair to assume that the extent of the Commission’s study depends on the circumstances of a particular case and on the Commission’s limited resources. Nevertheless, the Commission’s willingness to consider evidence on which the accusations of tax evasion and other financial crimes is often based gives hope to the victims of INTERPOL abuse falsely accused of such crimes.

Parallel Criminal Prosecutions and Conflicting Extradition Requests: Their Effect on the Legitimacy of Government Requests Disseminated via INTERPOL’s Channels

By Yuriy Nemets | August 5, 2024 | Comments 0 Comment

In one of its recently published decision excerpts, the Commission for the Control of INTERPOL’s Files considered whether a government request targeting an individual-subject to parallel criminal prosecutions violates INTERPOL’s rules. The case at issue concerned an individual wanted for criminal prosecution by two countries, the country-source of data recorded in INTERPOL’s files and the country of his nationality, based on the same “facts and charges.” The individual was detained in a third country at the request of the country-source of data. However, the country where the individual was detained received an extradition request from the country of the individual’s nationality as well. He was eventually extradited to the latter.

In his complaint, the individual argued that the diffusion violated the requirement that the processing of data may only be carried out for a “given, explicit purpose which is in conformity with the Organization’s aims and activities” (Articles 10 and 97 of INTERPOL’s Rules on the Processing of Data (RPD)) and the principle of ne bis in idem (Article 2 of the INTERPOL Constitution). Not only did the county-source of data and the country of the individual’s nationality ignore each other’s requests for the transfer of criminal proceedings but they failed to respect each other’s requests to share the results of their respective investigations as well. This lack of cooperation eventually resulted in the country of the individual’s nationality dismissing the charges for lack of evidence.

The Commission has ruled that the “purpose of the Diffusion remains valid, and the existence of the parallel proceedings in [the country of the individual’s nationality] for the same facts and charges raise neither concern for a breach of the non bis in idem principle nor for a lack of interest for the purposes of international police cooperation.” The Commission has concluded that the diffusion does not lack a valid purpose, reasoning that the country-source of data has fulfilled its obligation to request the individual’s arrest and extradition and has taken active steps toward achieving this purpose. The Commission has also disagreed with the argument that the country-source of data has failed to fulfill the purpose of its diffusion when it denied the other country’s request to transfer the proceedings. In this regard, the Commission “emphasize[d] that there is no obligation under INTERPOL’s rules for the [country-source of data’s] authorities to forgo their sovereign right to prosecute [the individual] under the territorial principle of jurisdiction, in favor of a transfer of proceedings to another country.” In disagreeing with the claim that the diffusion violates the principle of ne bis in idem, the Commission has reasoned that the parallel criminal prosecutions are based on the “established principles of territorial and national jurisdiction,” neither country has agreed to transfer the proceedings, and, therefore, the principle of ne bis in idem does not apply in this case.

In its decision, the Commission also considers whether conflicting extradition requests violate Article 35 of the RPD which requires that “data are of interest for the purposes of international police cooperation.” In this case, the Commission has concluded that “an INTERPOL member country’s response to conflicting extradition requests does not have a substantial impact on the interest of the data under Article 35 of the RPD, in particular because there are no elements in [this] case to suggest that [the individual’s] extradition to the country-source of data, if located and arrested in another country, would be improbable.” Nevertheless, the Commission has indicated that parallel proceedings should not be entirely ignored for the purposes of international police cooperation and ruled to inform the Organization’s member countries of the existence of these parallel proceedings in a caveat to the government request recorded in INTERPOL’s files, leaving it to the member countries’ discretion whether to take this information into consideration during international police cooperation.

Yuriy Nemets to speak at the American Bar Association event ‘Latest Developments in INTERPOL’s Fight Against Transnational Repression’

By Yuriy Nemets | June 16, 2024 | Comments 0 Comment

On July 22, 2024, Yuriy Nemets will speak at the American Bar Association event ‘Latest Developments in INTERPOL’s Fight Against Transnational Repression.’ The panel will discuss the latest developments in INTERPOL’s efforts aimed at curbing transnational repression and abuse of its systems. The panelists will review the latest developments in INTERPOL’s application of its rules aimed at protecting the rights of victims of abuse by INTERPOL member states, recent INTERPOL “case law” and other relevant disclosures (e.g. preemptive requests, presumption of innocence, child custody), the challenges that INTERPOL faces in its attempts to convince member countries to cooperate in the Organization’s fight against the abuse of its resources, the upcoming elections of the INTERPOL Secretary General, one of the most significant posts which plays a key role in addressing government abuse of the Organization’s channels, and the democratic countries’ attempts to avoid involvement in INTERPOL abuse committed by autocracies.

Don’t forget to register!

IN PROTECTING REFUGEES AND ASYLUM-SEEKERS, THE COMMISSION FOR THE CONTROL OF INTERPOL’S FILES LOOKS BEYOND INTERPOL’S REFUGEE-ASYLUM-SEEKER POLICY

By Yuriy Nemets | May 16, 2024 | Comments 0 Comment

In late 2014 – early 2015, INTERPOL introduced its refugee-asylum-seeker policy according to which “in general, the processing of Red Notices and diffusions against refugees will not be allowed if the following conditions are met: the status of a refugee or asylum-seeker has been confirmed, the notice/diffusion has been requested by the country where the individual fears persecution, and the granting of the refugee status is not based on political grounds vis-à-vis the requesting country.” Since its adoption, the policy has become a true lifeline for many individuals targeted by abusive government requests disseminated via INTERPOL’s channels. It is arguably the most straightforward way to fight an abusive Red Notice or diffusion.

The Commission for the Control of INTERPOL’s Files has very rarely publicly opined on its application of the refugee-asylum-seeker policy. Until recently, the Commission’s decision not to grant the relief provided by the policy to individuals who challenge government requests after they become the nationals of countries that have granted them asylum has been the most notable development. In my opinion, this decision to limit the application of the policy is wrong. This issue, however, deserves special attention, and I will give my reasoning in another publication. Today, I want to discuss the Commission’s recent disclosure in which it signals its willingness to protect refugees and asylum-seekers from INTERPOL abuse even when the refugee-asylum-seeker policy does not apply.

In the disclosure, the Commission describes a case of an individual targeted by a Red Notice which also involves three different countries: (1) the country-source of data (the Red Notice), (2) the country of the individual’s nationality, and (3) the country that has granted him refugee status because of persecution in the country of his nationality and refused to extradite him to the country-source of data, citing possible violations of his fundamental rights by the latter if he is extradited. In this regard, it is important to remember that under the second prong of the INTERPOL refugee-asylum-seeker policy, it applies to “notice[s]/diffusion[s] requested by the country where the individual fears persecution” (emphasis added). Because the country of the individual’s nationality, whose conduct became the reason for the decision to grant the individual refugee status, was not the source of data in this case, the Commission refused to apply the policy and delete the Red Notice on this basis. At the same time, the Commission did not ignore the individual’s refugee status either.

Following its consideration of all available evidence, the Commission, taking into consideration the totality of circumstances, ruled in the individual’s favor, citing, among other reasons, his refugee status. In this regard, the Commission reasoned that although the INTERPOL refugee-asylum-seeker policy did not apply stricto sensu in this case, the fact that the individual was granted asylum could still serve as evidence, an “aggravating factor,” as the Commission put it, that INTERPOL’s involvement in the case may lead to a violation of Article 2 of the INTERPOL Constitution.

The sixth of NEMETS’ webinar series Open Conversations About INTERPOL Abuse will focus on the results of the 91st INTERPOL General Assembly

By Yuriy Nemets | December 5, 2023 | Comments 0 Comment

On December 7, 2023, NEMETS PLLC will host the sixth of its webinar series Open Conversations About INTERPOL Abuse. This webinar will focus on the results of the 91st INTERPOL General Assembly. Join us live on YouTube, Twitter (X) or Facebook!

Yuriy Nemets to speak at the American Bar Association panel ‘Latest Developments in INTERPOL’s and its Member Countries’ Approach to Transnational Repression’

By Yuriy Nemets | July 16, 2023 | Comments 0 Comment

On July 25, 2023, Yuriy Nemets will speak at the American Bar Association (ABA) panel ‘Latest Developments in INTERPOL’s and its Member Countries’ Approach to Transnational Repression.’ The panel will discuss the latest developments in the area of INTERPOL abuse and defending the rights of individuals on the international wanted list. This is the fifth panel dedicated to this pressing problem hosted by the American Bar Association. Yuriy has participated in all five previous panels under the aegis of the ABA. Before that, in 2018, a panel on the topic was hosted by the Association of Certified Financial Crime Specialists (ACFCS) in which Yuriy participated as well. These panels are always comprised of experienced and dedicated professionals, attorneys who specialize in defending the victims of INTERPOL abuse as well as scholars who study and write about this issue. The panelists report on the most recent developments, such as INTERPOL’s latest approach to the interpretation and application of its rules, the reforms that must be carried out to bring the Organization’s redress mechanism closer to modern democratic due process requirements and legislative initiatives concerning INTERPOL abuse. It is exciting to witness the panel becoming a regular event. The discussions are always incredibly interesting and insightful. We are looking forward to this year’s panel, and we hope to see you there! Click here to register: https://urldefense.proofpoint.com/v2/url?u=https-3A__americanbar.zoom.us_webinar_register_WN-5FsUGjMqqXTze187DpIN5wnw&d=DwMGaQ&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=EdbakWNcaBtMWC6KkfB5Zv42TLxobocOWsk6DltS1vo&m=_LRIAoz2719_YERnqu6yP68mEHTn1DAZ1-4IRo7PyAJv0cZPjlPL9NhZY0njWAK1&s=kx7Vk6mMalntNgZ1ihFyyH90etRftbKAjHEYpMpv5-w&e=

Location Known: Can INTERPOL Continue to be Involved if the Requesting Government is Aware of the Accused’s Location and, Moreover, if the Accused Cooperates?

By Yuriy Nemets | December 6, 2020 | Comments 0 Comment

During the past several years, the Commission for the Control of INTERPOL’s Files has published a number of its decisions regarding complaints against government use of INTERPOL’s resources. Although these decisions are often published heavily redacted, they provide valuable insight into the Commission’s interpretation of some of the key provisions in the INTERPOL Constitution and the Rules on Data Processing. In addition, with regard to some of the rules, the Commission has published its interpretation more than once, which demonstrates their consistent application by the Commission. In this post, I reflect on one of the most common questions I get in my practice – can a Red Notice or a diffusion continue to circulate via INTERPOL’s channels if the requesting country is aware of the individual’s location?

The Commission has responded to this question in the affirmative, and it has done so in several of its published decisions. The fact that the government knows the individual’s location, even if the individual was the first one to reveal it, does not by itself make the government’s request disseminated through INTERPOL unlawful. The Commission has explained that “[t]he purpose of a red notice is not only to locate a person, but also to request his/her provisional arrest in view of extradition. In this regard, the fact that the Applicant’s location . . . is known to . . . authorities does not undermine as such the lawfulness of the Red Notice.” Therefore, the purpose of a Red Notice or a diffusion is twofold. Establishing an individual’s location achieves only one of the goals, and as such, it does not make the Red Notice or diffusion irrelevant. Following the Commission’s reasoning, it seems logical to conclude that if the accused not only reveals her/his location but also cooperates with the requesting government in its criminal investigation, such cooperation by itself does not invalidate a Red Notice or a diffusion either. This seems important for accused and their attorneys to remember.

Category: INTERPOL “case law”