Indeed, subsequent to the previous blog, the Commission for the Control of INTERPOL’s Files took the step of publishing one of its decisions on the issue.
Decisions of the Commission for the Control of INTERPOL’s files (“CCF”) are normally confidential and not meant for public dissemination. However, occasionally the CCF will publish an anonymised decision “to provide information on its activities and in accordance with its statute”. These are generally decisions which can be said to be in the wider public interest, therefore address a topical issue.
One such topic is the issue of INTERPOL being used to pursue individuals in relation to bounced cheques. Indeed, this was an issue that Gherson’s extradition team previously wrote a blog about and is an issue which unfortunate individuals are still finding their lives blighted by.
What were the issues in the publicised decision?
The published decision involved an Applicant who was subject to a Red Notice for issuing an unfunded cheque. The Applicant’s subsequent request for deletion of data concerning him was based on his contention that:
- The case is of a civil nature, and
- The case lacks interest for the purposes of international police cooperation.
What were the factors considered?
The Applicant claimed that he had no intention to issue an unfunded cheque and that following receipt of a loan during his previous employment he had encountered an honest inability to meet the financial obligations.
The Applicant indicated a willingness to cooperate and fulfil this obligation. The Applicant had faced negative consequences as a result of the Red Notice.
The NCB asserted that in the case of unfunded cheques no special intent is required, the act of issuing the cheque with the knowledge of not having sufficient funds is enough.
What were the findings of the Commission?
The Commission noted that:
- Although the minimal threshold had been reached, the interest for the purposes of international police cooperation shall be assessed, inter alia, in relation to the nature of the data and the extent to which the data may be used by NCBs for extradition purposes;
- As stated in the Court decision, there are laws which consider the mere writing of an unfunded cheque encompasses both criminal act and intent;
- However, cooperation through INTERPOL’s channels must be in accordance with the rules, which include limiting the use of Red Notices for ordinary-crime use;
- Most Member Countries do not qualify the mere act of bounced cheque as criminal;
- Further, the offence is seldom recognised as a crime and extraditable offence in many national systems;
- In the Applicant’s case, the Commission expressed strong concern that the data on the Applicant’s file may not be of interest for the purposes of international police cooperation, and the mere act of issuing an unfunded cheque where no criminal intent has been demonstrated does not meet the criteria of “serious ordinary law crime”;
- In this case, the data concerning the Applicant is not compliant with INTERPOL’s rules on the processing of data and must be deleted.
The publication of the above decision does not seem to have acted as a deterrent against those using INTERPOL to pursue individuals in similar circumstances.
However, the above decision as least gives hope to the fact that INTERPOL is appreciating how, in some circumstances, its use for such purposes is not compliant with its own rules. The decision publication can hopefully also be seen as at least an acknowledgment of the need to make its decision-making in this regard more publically known.
If you face the above issues, then expert legal advice is recommended. There is certainly the potential for any representations to INTERPOL to be fortified by the above decision and the findings of the Commission.
How Gherson can assist?
Gherson have extensive experience advising clients facing both extradition and Red Notices, and have experience making submissions to INTERPOL on a broad range of grounds. Gherson can also call on extensive expert international experience if required. If you require any advice on INTERPOL, Red Notices, or extradition, then Gherson’s extradition team will be more than happy to assist. Send us an e-mail, or alternatively, follow us on Twitter, Facebook, or LinkedIn to stay-up-to-date.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
©Gherson 2021