Not twice for the same thing – travel protections, and removal from EU’s Interpol databases in cases of double jeopardy
What is the ne bis in idem (“double jeopardy”) principle?
The ne bis in idem principle (not twice for the same thing) is laid down in Article 50 of the Charter of Fundamental Rights of the European Union (“the Charter”). This states that: “no one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law”.
How does this apply to INTERPOL Red Notices?
Following Judgment in Case C-505/19 (WS v Bundesrepublik Deutschland) a press release dated 12 May 2021 was published by the Court of Justice of the European Union[1] (“CJEU”) that details how the double jeopardy principle applies to someone subject to an International Criminal Police Organisation (INTERPOL) Red Notice in the European Union (“EU”).
Background to the case
In 2012, INTERPOL allowed a Red Notice issued by the United States (“US”) against a German national (“WS”), seeking to extradite WS from Germany to the US for allegations of bribery.
However, previously in 2010 WS had already settled this matter under German criminal law with the respective German prosecutor accepting a fine and closing the case.
As such, in 2017, WS brought his case to the Administrative Court in Germany arguing that the continued storage of his data on INTERPOL in EU Member States was a breach of Article 50 of the Charter and contrary to EU law. The Administrative Court then referred some questions to the CJEU.
What was the decision of the CJEU?
The CJEU noted that the double jeopardy principle may apply in a situation as above, namely where a decision has been adopted which definitively discontinues criminal proceedings provided that the person concerned meets certain conditions.
The decision also held that where the double jeopardy principle applies, the recording in member states of the person’s data contained in a Red Notice, is no longer necessary. The data subject can request that data be erased, and if data remains recorded there must be a note that the person can no longer be prosecuted.
That is some reassurance, but what are the limits of double jeopardy protections?
With financial crime becoming increasingly borderless it is easier for individuals to find themselves facing allegations of offences spanning across multiple jurisdictions. This judgment should at least give some comfort to individuals who face allegations spanning numerous jurisdictions and who are concerned about international travel.
However, there remain some caveats to be aware of:
The question of whether double jeopardy applies to a case is fact specific and will depend on issues such as:
- The specific meaning of discontinued criminal proceedings;
- The alleged facts in relation to each jurisdiction.
Although a Court determination in one member state would bind all other EU member states, there may not always be a Court determination. In these circumstances an individual may be arrested whilst the member state determines whether the principle applies.
Finally, there will be different protections depending on whether the allegations span just EU states, or span EU and non-EU states:
Allegations across EU member states
Where individuals face allegations spanning multiple EU states then discontinued criminal proceedings in one of these states (which meets the above fact specific criteria) may generally preclude their arrest whilst they remain in the EU and should prompt the removal of a Red Notice across both EU and non-EU states.
Allegations across EU and non-EU member states
Where individuals face allegations spanning an EU and a non-EU state, the dynamics are more complex. Given the above, an individual can perhaps be confident that as long as they remains in the EU, the principle will be respected. However, were that individual to leave the EU there would be no guarantee that the principle would be recognised and therefore the individual could still be subject to arrest on a Red Notice issued by the non-EU member state. There would also be no guarantee that the Red Notice is removed.
Can I travel safely and/or apply to have INTERPOL data removed?
In all circumstances where individuals are subject to allegations in multiple jurisdictions and fear that a Red Notice might be imposed it is necessary to seek expert legal advice.
With expert understanding of the above factors and issues, Gherson is able to provide specialist advice including making enquiries as to whether specific countries respect double jeopardy and making representations on behalf of clients to INTERPOL to have their data removed in the relevant country so they can travel freely.
Gherson have previously[2] explained the unreliable nature of INTERPOL’s removal process with respect to Red Notices and the retention of people’s data. Therefore, Gherson continue to emphasise to clients who have previously had INTERPOL Red Notices issued in their name, the importance of clarifying the position with the relevant country before travelling to the country.
Could INTERPOL be involved?
Finally, individuals will want to know how INTERPOL can be involved. Indeed, a country may issue a request to locate an individual through INTERPOL before issuing an extradition request; however, this is not a prerequisite (i.e. an individual can face extradition proceedings even if they are not subject to INTERPOL measures). If you require more information, Gherson have previously written a series of blogs designed to assist those who fear they might be subject to INTERPOL measures (including a Red Notice):
- INTERPOL and Red Notice Challenges
- How to Remove an INTERPOL Red Notice
- INTERPOL Red Notices and Extradition
- How do I know if I am subject to an INTERPOL Red Notice
Gherson has over 40 years of experience in assisting with all aspects of INTERPOL and Red Notice challenges, extradition requests, complex asylum claims, and where the three intersect. 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 further advice, send us an e-mail, or, alternatively, follow us on Twitter, Facebook, Instagram, 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 do not 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 2023