1 The power of the Interpol Red Notice In this article, Catherine

The power of the Interpol Red Notice

In this article, Catherine Heard and Alex Tinsley of Fair Trials International reveal the human

impact of Interpol “red notices”. They argue that more must be done to protect Interpol’s

systems against abuse and to provide a fairer system for challenging red notices in cases of

possible injustice.

Introduction

Fair Trials International assists individuals who are facing trial in a country other than their

own. Its focus is on cross-border criminal cases. In this context, Fair Trials International has

worked on several cases raising questions over Interpol red notices. This article examines

some common features among three of these cases: one, a businessman and US citizen;

the second, a union leader from Mexico; and the third, a West Papuan independence

activist. The article puts the case for reform of Interpol’s systems for issuing red notices and

for addressing the complaints of those who suffer injustice as a result of them.

The power of the Interpol red notice

Case 1: Ilya Katsnelson, wanted by Russia

In testimony to the US Helsinki Commission in 2009, Ilya Katsnelson, a US citizen,

businessman and father of three, described the following events, which took place as a

result of an Interpol red notice issued against him at Russia’s request.

“While driving through Germany to my home in Denmark, I was stopped near the Danish

border for a routine document check. After close scrutiny of my U.S. passport, the officer

advised me that I was to be detained due to an Interpol Arrest Order issued by the Russian

authorities. The next day, four special forces police troops, clad in balaclava hats, bulletproof

vests and military fatigues entered my detention cell, handcuffed me, put a bag on my head

and dragged me to a waiting car. I travelled in a five car cortege with a police escort at the

front and back. With blaring sirens we raced at 100 mph to the court house. The guard next

to me had his machine gun trained on me at all times”.

Katsnelson was escorted to the ferry to Germany by policemen armed with machine guns.

He was then detained in prison for almost two months, before his legal team managed to

secure his return to Denmark. Denmark has taken no steps to arrest or extradite him to face

the charges Russia has brought, which Katsnelson maintains are politically-motivated.

The United States has similarly taken no steps to extradite Katsnelson. Yet the red notice

remains in place, meaning he faces a risk of re-arrest and detention whenever he crosses an

international border. Even when returning with his family on vacations to the United States,

Katsnelson is systematically detained and questioned about his plans. He has asked Interpol

to remove the notice, but to no avail.

Interpol – key facts

Interpol is one of the largest international organisations in the world, with 190 member

countries and an annual budget of nearly €60 million. Headquartered in Lyon, France, it also

has seven regional offices across the world. It has representative offices at the United

Nations and at the European Union. Most of Interpol’s annual income derives from member

countries’ contributions. There is no detailed public information on its finances, on how state

contributions are calculated, or where the rest of Interpol’s funding comes from.

Interpol’s chief function is to provide liaison between the law enforcement agencies of its

member countries, principally communications and database assistance. Interpol’s

databases contain vast numbers of fingerprints, wanted or missing person details and DNA

samples. Interpol’s secure worldwide communications network allows its agents and

member countries to contact each other 24/7. These services play an important role in

facilitating international police cooperation and combating serious crime. However, the

cases suggest they are open to abuse, particularly around the use of red notices.

Red notices: “a Wanted Poster with teeth”

- as Henk Tepper’s case shows

A red notice is an alert issued by Interpol at the request of a member country, indicating that

that country seeks an individual’s provisional arrest with a view to extradition. In 2011, 7,958

people were arrested or detained following the publication of these notices

Red notices originate after domestic arrest warrants have been issued by national agencies.

Interpol then uses the information in the domestic warrant to produce the red notice, which is

circulated globally and allows police and border agencies in other countries to arrest and

detain the suspect, ostensibly to await extradition to the country where the charges originate.

A red notice is recorded on Interpol’s databases for instant circulation around all the world’s

police forces. Some are also published on Interpol’s public website. This is done by

Interpol’s General Secretariat at the request of a member country’s designated authority,

known in Interpol parlance as its National Central Bureau (NCB).

A red notice is not an arrest warrant. However, states choose how to act on a red notice:

many consider it a sufficient legal basis for arrest and preliminary detention. Whether the

person is further detained pending extradition and in what conditions (in terms of access to

legal advice and consular assistance) is, again, at each state’s discretion. The results of a

red notice are therefore unpredictable and often devastating to individuals involved. Last

year, Canadian businessman Henk Tepper was on a trade mission in Lebanon when he was

arrested, on a red notice issued at Algeria’s request in connection with an allegedly

substandard consignment of potatoes from his farm. He spent nearly a year in a Lebanese

jail before being allowed to return to Canada, his business by then close to ruin.

Impact of red notices - damage to business, reputational harm

The risk of experiencing an ordeal like Henk Tepper’s means that people who know there is

a red notice against them refrain from travelling for fear of what will happen at the border.

Red notices therefore, of themselves, result in a curb on free movement.

Red notices can also have other severe effects, including damage to reputations and

businesses. Individuals subject to red notices are labelled “wanted international criminals”

and, as a result, can lost their jobs, have travel visas refused, asylum applications turned

down, bank accounts closed and loan applications denied. They can even lose their

livelihoods. This has serious consequences for whole families, not just the individuals

affected by red notices.

Recent surge in use of red notices

Ben Howard, Warner Center News, California, June 21, 2012

Idem

The red notice has surged in popularity among the world’s law enforcement agencies,

doubtless because of the way it facilitates the rapid location of fugitives. In 2005, Interpol

issued 2,343 red notices. In 2011 it issued 7,678.

Interpol’s ‘i-link’ system (introduced in 2009) allows countries to communicate red notices to

other member countries in draft, that is, before they have been formally issued by Interpol’s

General Secretariat. This system allows notices to be recorded straight onto Interpol’s

database by the NCB before any detailed legal review of the draft notice has been carried

out by Interpol to check compliance with its rules. Arrests can take place on the basis of draft

notices.

Interpol rules on political neutrality and respect for human rights – do they go far

enough?

Interpol’s activities, including the way that red notices are issued, are limited and defined by

its Constitution. Article 2 of the Constitution requires Interpol to comply with the ‘spirit of the

Universal Declaration of Human Rights’. Under Article 3, ’It is strictly forbidden for [Interpol]

to undertake any intervention or activities of a political, military, religious or racial character.”

This is referred to on Interpol’s website as the “neutrality” principle. Interpol has a duty to

ensure that its notices comply with these rules before they are processed, but how this fits

with the new “i-link” system is unclear.

Interpol is also bound by a set of operating rules, which require information to be processed

in accordance with these cardinal rules in the Constitution. A new set of rules (“Rules on the

Processing of Data”) were agreed last year and apply as from July 1, 2012. The new rules

contain some sensible amendments: for example data is to be retained for an initial

maximum of five years (49); the General Secretariat is required to cancel a notice if it no

longer meets the conditions for publishing a notice (81(c)), and an NCB requesting a red

notice is required to provide assurances that extradition will be sought upon arrest of a

person (84(b)).

However, it is the NCB that is responsible under the rules for deciding whether data needs to

be retained beyond the initial expiry date (50(1)), and the General Secretariat cannot

override its decision. Further, the NCBs are primarily responsible for ensuring data

transmitted to Interpol complies with the Constitution and fundamental rights standards. As

some of the NCBs represent states with poor human rights records, this reliance on their

good offices appears optimistic, at best. It is also not clear whether Interpol plans an

immediate review of existing cases in light of the new rules.

In 2011, the International Consortium of Investigative Journalists analysed a snapshot of all

public red notices on Interpol’s website, as at 10 December 2010. This included 7,622 red

notices issued at the request of 145 countries. More than 2,200 of the red notices were

issued on behalf of countries that do not adequately safeguard human rights, including

Russia, Belarus, Iran and China. It is therefore unsurprising that in many cases, politically

active individuals who have fled persecution in some of these countries only to discover they

are subject to a red notice issued at that country’s request, will consider that their red notice

is politically motivated, in breach of Interpol’s rules. Benny Wenda is one example.

Misuse of red notices to pursue refugees who are political opponents

Case 2: Benny Wenda, wanted by Indonesia

Benny Wenda is a key figure in the movement for the independence of West Papua from

Indonesia. In 2002, shortly after the murder of the leader of the Papuan movement, Benny

was imprisoned and subjected to a seriously flawed trial for his alleged role in an arson

attack. He managed to escape and fled to the UK, where he was granted asylum.

Safe in the UK, Benny was able to pursue his campaigning for West Papuan independence.

He promoted his cause through websites and attended events around the world. In 2008 he

helped found the International Parliamentarians for West Papua (IPWP), increasing the

international profile of his campaign. He was frequently asked to attend overseas events.

In 2011, Benny discovered that he was subject to an Interpol red notice, published on

Interpol’s website. The notice has stifled Benny’s activism: vulnerable to arrest throughout

the world, he can no longer attend campaign events. For example, in 2012, the IPWP invited

Benny to an event in Canberra, Australia, which he could not attend for fear of arrest and

extradition. At no stage has Indonesia sought his extradition from the UK.

Can people find out if they are subject to a red notice?

The first step is to check Interpol’s website as some red notices are publicly listed, although

most are circulated only within the closed database accessed by NCBs. It may also be

possible to apply to the NCB in the country where the individual is based to see if a red

notice has been circulated to it. However, that option will depend on national data protection

laws.

The direct route is the ‘right of access’ to information provided under Interpol’s Constitution.

An individual can make this request to the CCIF, using the pro forma document on Interpol’s

website. The CCIF, part of the Interpol structure, is tasked with ensuring Interpol’s data

processing complies with its rules and handling individual requests. However, it can only

disclose information ‘subject to the agreement of the source’, that is, the NCB in the

prosecuting state. If that NCB refuses, the CCIF will not be authorised to tell the individual

whether or not there is a red notice.

How can an individual challenge a defective or unlawful red notice?

People who lose or risk losing their liberty, livelihood or reputation as a result of red notices

have three possible routes to seek a remedy:

(i) asking their country to protest against the red notice;

(ii) arguing their case before the national authorities of the requesting country; and

(iii) seeking an ex post review from the CCIF.

Regarding option (i), it would seem that the most a national body could do is confirm it will

not arrest or extradite a person. However, this would not necessarily lead to the removal of

the red notice. Even if a person’s extradition is refused on proper grounds (for example, due

to the risk of torture or the death penalty in the requesting state), the red notice still does not

need to be removed: instead, Interpol may choose to update it with an “addendum” referring

to the refusal to extradite. As to option (ii), challenges against the state where the request

for a red notice originated also seem unlikely to succeed, particularly where the authorities in

that country are hostile to the individual concerned. The case of Napoleon Gomez

demonstrates this.

No proper remedy against abuse

Case 3: Napoleon Gomez, wanted by Mexico

Napoleon Gomez Urrutía is the leader of the major Mexican mining union ‘Los Mineros’.

Since 2006, state authorities have repeatedly accused him of misappropriating US$ 55m

from a Union trust fund (the money was transferred to the Union itself, not to Gomez). Ten

different criminal cases have been opened by Mexico, all based on the same events. Of

these, three never made it past preliminary investigations, and the other seven have been

dismissed by the courts (the last is still technically valid by reason of a prosecutorial appeal).

The Union maintains this is a persecution.

Gomez left Mexico in 2006 after receiving death threats. He has since lived in Canada,

which, having notice of the allegations in Mexico, has granted him permanent residence.

Mexico sought an Interpol red notice in 2006, which has stayed in place despite the various

arrest warrants in Mexico being quashed by the courts there.

Gomez has been unable to attend union events abroad due to the live red notice against

him. In 2011, he was awarded the Meany-Lane Kirkland Human Rights Award in recognition

of his outstanding leadership and defence of union rights, but he could not receive it in

person in the US as the authorities refused his visa application because of the red notice. In

June 2012, he was invited to attend a seminal international labour union event in

Copenhagen, Denmark, but again had to appear by video-conference because he could not

obtain guarantees of safe passage.

Challenging a red notice through the CCIF – in focus

Realistically, the only option for individuals wanting red notices against them removed on the

ground that they should not have been issued, is to write to the CCIF seeking a review.

However, the CCIF itself can only offer limited relief. The CCIF can issue recommendations

to Interpol’s General Secretariat, including that a red notice be removed from the public

website, amended, or deleted altogether. These recommendations, though usually followed

in practice, are not legally binding and can be overturned by a simple majority of the General

Assembly, whose proceedings are private. There is no appeal against the decision ultimately

taken in response to the CCIF’s recommendations.

The current Chair of the CCIF has stated that 21 of the 215 complaints filed in 2009 with the

CCIF claimed they were being targeted for political reasons. In 2010, the CCIF

recommended that Interpol delete 21 cases from its databases altogether and also that it

remove a further 73 notices from its public website (meaning police could still see and act on

these notices).

Though the CCIF is the only realistic chance of getting a red notice deleted, it is not user-

friendly (as the summary below illustrates). There is no right to a hearing or disclosure.

Individuals do not receive a reasoned response (though the CCIF is required to give reasons

for any finding of inadmissibility). There is no expedited procedure even for urgent cases,

and recommendations usually take several months to be issued following admissibility

decisions.

Gomez, Katsnelson and Wenda complaints to CCIF

Complaint made

(arguments)

CCIF response(s)

(detail)

Current

status

Gomez

May 18, 2012 (email)

(red notice lacked foundation

in a national arrest warrant;

red notice politically

motivated; urgent response

sought given event in

Copenhagen)

20 June

(confirming admissibility)

Pending

Katsnelson

Sept 18, 2009

(Denmark has not extradited;

harm to family life, business

and reputation; not a

“fugitive” as alleged by

Russia, as whereabouts

publicly known.)

September 24, 2009

(confirming admissibility)

July 19, 2010

(addendum noting Denmark has

not extradited)

Oct 14, 2010

(investigations still ongoing)

May 2011

(investigations complete; red

notice to stay in place with

addendum about alleged

political motive to Russian

charges)

Closed

Wenda

April 24, 2012

(red notice a political device,

contrary to spirit of the UDHR

and serving improper

purpose)

May 3, 2012

(confirming admissibility; as an

interim measure, red notice

unavailable to Interpol

members)

Pending

Litigation - an alternative?

Individuals bringing claims against Interpol itself rarely get to first base, as courts refuse to

adjudicate claims against it. Under its Headquarters Agreement with France, French courts

cannot hear cases against it. The Headquarters Agreement states that all Interpol

documents are “inviolable”, wherever they are located, and that Interpol data is subject only

to Interpol’s internal rules. Research by Fair Trials International suggests that no national or

international court has ever issued a decision against Interpol at the suit of an individual

litigant.

For US purposes there is also effective immunity from suit. Interpol has been recognised in

the US as an international organisation since 1983, but it did not, until recently, enjoy all the

associated privileges until 2009, when Barack Obama signed Executive Order 13524,

removing those limitations, effectively granting Interpol immunity.

What next?

Gomez, Katsnelson and Wenda cases are just some of the many individuals Fair Trials

International has encountered who have suffered injustice as a result of red notices and the

inadequate mechanisms to challenge these. Our individual casework is revealing clear

patterns and the cross-border lawyers we work with across Europe and beyond are seeing

similar cases.

The reforms contained in Interpol’s new rules, in force from 1 July 2012, do not go far

enough. It is imperative that Interpol’s review procedures meet a higher standard of

procedural justice, in order to protect this important international crime-fighting body from

abuse and ensure that its systems help countries to deliver justice, rather than undermine it.