In a blog post last week, Gherson explored the basics of how INTERPOL operates and what INTEPOL Red Notices are.
However, the key questions for people who fear they may be subject to an INTERPOL Red Notice will certainly be:
- How can I challenge and remove an INTERPOL Red Notice?
- Am I subject to an INTERPOL Red Notice?
This blog helps explain how you can identify whether you are subject to an INTERPOL Red Notice and, if so, how to challenge and remove an INTERPOL Red Notice.
How do I know if I am wanted by Interpol?
It is important to first clarify that INTERPOL is a data-sharing platform and nobody is technically “wanted” by INTERPOL, rather states utilise INTERPOL in an attempt to publish the data of individuals wanted by requesting states. It is the state, not INTERPOL, that individuals are wanted by.
When a member state (of INTERPOL) requests INTERPOL to publish data on a suspect or convicted person, INTERPOL sends this data internally to every member state’s National Central Bureau’s (“NCB”) database. However, it is less well known that sometimes the requesting member state expressly requests that the suspect or convicted person’s data is not also published on the publicly available list, found here.
This could be so that the wanted individual does not know that they are wanted, and any investigation is not therefore prejudiced. In addition, if the requesting member state is not sure where the individual is located and does not want to alert them that they are actively seeking their arrest, they will request that the Red Notice be kept on INTERPOL’s private list. Representations can be made to INTERPOL to enquire whether you are on the private list, although expert advice should be sought before doing so as this risks disclosing your location to the requesting member state. Further, INTERPOL are not necessarily obliged to disclose whether they hold data on you. As such, expert advice should be sought before these representations are made to properly understand the risks involved.
How to remove an INTERPOL Red Notice
There are numerous ways to challenge the validity of INTERPOL Red Notices and they cannot reasonably all be explained in one blog post. INTERPOL is governed by the Rules on the Processing of Data (the “RPD”) and the INTERPOL Constitution (the “Constitution”). Effective challenges require an intricate understanding of the RPD and the Constitution alongside a thorough understanding of each specific factual situation. It is, therefore, via a thorough practical understanding of the RPD and the Constitution applied against the specific factual scenario that effective challenges have the best chance of being successfully mounted. As such, expert legal advice is always recommended. Four frequently utilised methods are as follows:
The first route to challenge the validity of a Red Notice.
The first way to challenge a Red Notice is through challenging the validity of a Red Notice. The RPD, at Article 83(1), states the offence must be “a serious ordinary-law crime”. As such, Red Notices should not be published for offences related to:
- behavioural or cultural norms;
- offences relating to family/private matters;
- offences originating from violation of laws deriving from private disputes; nor
- offences originating from administrative / private disputes.
Further, if a Red Notice is issued for prosecution for an offence, the RPD states that “the conduct constituting… (the) …offence is punishable by a maximum deprivation of liberty of at least two years…”.
If a Red Notice is issued in relation to an outstanding sentence, the RPD state that the sentence must be for “at least six months of imprisonment”.
Importantly, the General Secretariat may still decide to publish a Red Notice where the above criteria are not met, and retains the right to under this provision of the RPD. Therefore, this challenge may be the weakest route of challenge, though it remains a potential route to recourse.
The second route to challenge the validity of a Red Notice
The second way to challenge a Red Notice is through Article 83(2)(b) RPD. This proscribes that the Red Notices “may be published only when sufficient judicial data has been provided”, namely “a succinct and clear description of the criminal activities”, the “laws covering the offence”, “the maximum penalty possible” and “reference to a valid arrest warrant or judicial decision”.
Given the volume of Red Notice requests INTERPOL receive, it is often worth ensuring that INTERPOL have made the relevant detailed enquiries in respect of these thresholds. There is often ample scope to make your case through representations to INTERPOL to explain why the threshold may not have been met. If it can be shown the thresholds are not met, there is a strong case to be made that the Red Notice can and should be removed.
The third route to challenge the validity of a Red Notice
The third way to challenge the validity of a Red Notice is through Article 2(1) of the Constitution, namely whether there is conformity with the Universal Declaration of Human Rights (“UDHR”). If it can be argued that mutual assistance with the requesting member states’ request is not “in the spirit” of the UDHR, then the request can potentially be cancelled. This could involve, for example, proving, that the requesting state will not offer the individual a fair trial in accordance with Articles 6 and 10 UDHR.
The fourth route to challenge the validity of a Red Notice
The fourth route to challenge the validity of a Red Notice is through Article 3 of the Constitution. Article 3 details that “it is strictly forbidden” for INTEPOL “to undertake any intervention or activities of a political, military, religious or racial character”. Although this is not strictly delineable from Article 2 UDHR, this route provides for a more explicit challenge through a key article of the INTERPOL constitution.
The best way to challenge (Remove) the validity of an INTEPROL Red Notice
There is no strict “best way” to challenge an INTERPOL Red Notice request, rather the strategy for challenging the Red Notices must be carefully considered in the context of the request and the specific factual nexus. Expert advice should be sought if you have, or you fear you may have, an outstanding INTERPOL Red Notice request.
How Gherson can assist?
Gherson team have extensive experience advising clients facing Red Notices, and have experience making submissions and representations to INTERPOL on a broad range of grounds. Gherson can also call on extensive and 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. Please do not hesitate to contact us for advice, 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