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 the 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”) detailing how the double jeopardy principle applies to someone subject to an International Criminal Police Organisation (INTERPOL) Red Notice in the EU.

Background to the case

In 2012, INTERPOL allowed a Red Notice issued by the US against a German national (“WS”), seeking to extradite WS from Germany to the US for allegations of bribery. However, in 2010, WS had already settled this matter under German criminal law, where the German prosecutor had accepted the payment of a fine and closed the case.

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 the situation described above, namely where a decision has been adopted which definitively discontinues criminal proceedings, provided that the person concerned meets certain conditions.

The CJEU 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 then 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 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 the discontinued criminal proceedings and 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, and in these circumstances an individual may be arrested whilst the Member State in question 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 an individual’s 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 remain 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 would be 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 there.

If you require advice or assistance with regards to INTERPOL, Red Notices or any issues identified above then please contact us, send us an e-mail, or alternatively, follow us on Twitter to stay up to date.