Seeing red? – get the lowdown on Interpol

July 2017  |  SPECIAL REPORT: WHITE-COLLAR CRIME

Financier Worldwide Magazine

July 2017 Issue

White-collar crime investigations are increasingly becoming multijurisdictional. As such, the ability for investigators to arrest the target of an investigation abroad often becomes a crucial consideration in deciding to pursue an investigation with an international component.

The Interpol Red Notice system, while an abstruse concept to the public, is increasingly part of the white-collar investigator’s toolbox.

Simply put, a Red Notice is a formal request to the authorities of every Interpol member country to locate and provisionally arrest an individual, pending extradition. Each country possesses its own legal procedures and practices to address them. Individuals who are the subject of a Red Notice should usually expect to be arrested if located by the authorities of a member country and, if arrested, should also expect to undergo the national extradition procedure of that host country.

From a basic operational standpoint, Interpol is composed of a global membership of 190 countries, each member country maintaining a national central bureau (NCB) staffed by national law enforcement officers. NCBs can be viewed as the ‘local component’ of Interpol, as they are in charge of ensuring liaisons with the various law-enforcement departments in their respective countries, as well as ensuring liaison with other NCBs and with Interpol’s General Secretariat. In turn, the General Secretariat can be viewed as the operational headquarters of Interpol responsible for, among other things, acting as Interpol’s international centre in the fight against crime and issuing their famous Notices, including the red ones.

Numerous societal benefits arise from international cooperation through Interpol. In our global economy, there are obvious benefits in seeing fleeing white-collar criminals face justice. On the other hand, we cannot ignore the fact that there always remains the risk that individuals can be targeted by certain countries for improper or ulterior motives, such as for political reasons. The individual who has knowledge that is the subject matter of an improperly issued Red Notice, should carefully analyse, investigate and, when appropriate, challenge its validity.

Recently, the Commission for the Control of Interpol Files (CCF), the body in charge of handling the revision of Interpol Notices, has seen its number of annual requests for access, revision or deletion of Notices increase from 115 in 2005 to 643 in 2015, clearly showing that the CCF revision process is becoming in vogue. For anyone who might potentially be dealing with this well-known, but opaque, law enforcement cooperation agency, a basic understanding of Interpol’s system is certainly useful and could allow for better anticipation of the steps to come.

Some Red Notice extracts are published on the Interpol website. For various reasons, including ones that are operational in nature, it may happen, however, that an individual will be targeted by a Red Notice without that Notice being published, thus leaving that individual unaware of their status. An individual may also be targeted by a ‘diffusion’, which is a less formal communication made directly from NCBs to NCBs or even sometimes from NCBs to the entire Interpol membership and which has the same effects as a Red Notice. Just like unpublished Red Notices, diffusions are not published on the Interpol website and, unless publicised by other means, an individual has usually no way of knowing that they are being targeted by one. If an individual becomes aware that a Red Notice or a diffusion has been issued against them, either through publication or other means, there are several ways to provide assistance to them to ensure the protection of their rights, the fair treatment of their case and, where possible, its deletion.

Contrary to a common, ill-founded perception, Red Notices are not only issued against hardened and violent criminals but are increasingly targeting persons who have allegedly committed white-collar offences (such as bribery, money laundering facilitation or other similar activities). Considering the frequently impervious nature of the facts underlying these types of offences, sourcing authorities – the source being the member country requesting the issuance of the Red Notice – can sometimes only possess a partial view of a case and can set their target on individuals for reasons inconsistent with Interpol policies. As such, a subject can, and should, when applicable, exert its rights to access its file and ask for correction or deletion of its Red Notice by filing a request to the CCF as soon as it is aware of its situation, obviously in order to avoid major foreseeable difficulties. When such a request is filled, the Request Chamber of the CCF will have the exclusive power to examine it and decide on its merits.

The Request Chamber is composed of five independent members, all of them being lawyers with different expertise from Interpol member countries. The CCF Requests Chamber’s decisions are binding on the General Secretariat and, as such, the CCF can order them to remove a Red Notice when certain requirements have been infringed or when improper grounds exist pursuant to its issuance. Although each situation is unique, the most common grounds for deletion are usually the presence of political, religious or racial motives, the anticipation or the existence of violations of human rights, the lack of significance of the alleged offence, the presence of a controversial issue or the fact that the alleged violation pertains to a private dispute. There have also been cases where it was found that the Red Notice issuance was premature or where it was found that an unfair and biased trial was likely to take place. With regards to the procedure, the Requests Chamber primarily examines requests on the basis of written submissions, but a hearing may also be held when deemed necessary by them. From the date a request for correction or deletion is declared admissible, the Requests Chamber has an obligation to render its decision within nine months, unless the particulars of the case require an extension of the time limit (the communication and implementation of the decision are subject to additional delays).

Faced with some recent high profile cases involving the issuance of an Interpol Notice as a means of alleged political retribution, and with the growing number of overall Notices being challenged, Interpol has started to review its processes. In March 2017, the CCF adopted new operating rules in a laudable effort to increase its overall efficiency and to become more accessible and transparent. Still, considering the devastating consequences of an improperly issued Red Notice against an individual, especially when he or she is targeted because of past business activities, it is of the utmost importance for that individual to retain a lead counsel that has both concrete investigative capabilities and experience in similar dealings. It should be expected that the preparation of an adequate, precise and robust case will often require a considerable amount of time and expertise in various jurisdictions. More often than not, only experienced counsel will be able to tackle this complex challenge and avoid the various pitfalls in place through a coherent coordination leveraging the proper team capable of responding in a composed but assertive way.

 

Stéphane Eljarrat is a partner and Dave Pouliot is an associate at Davies Ward Phillips & Vineberg LLP. Mr Eljarrat can be contacted on +1 (416) 863 6407 or by email: seljarrat@dwpv.com. Mr Pouliot can be contacted on +1 (514) 841 6404 or by email: dpouliot@dwpv.com.

© Financier Worldwide

BY

Stéphane Eljarrat and Dave Pouliot

Davies Ward Phillips & Vineberg LLP

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