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Attorney-at-law, Partner, Head of White-Collar Crime Practice, VB PARTNERS
Interpol’s Role within the Global Security Architecture
In recent times one of the most important areas of international cooperation for Ukraine has been Interpol, particularly its search database. At the moment, 1,763 persons out of 10,000 are wanted by Interpol at the request of Ukraine.
Structure of Interpol’s Authorities
The management bodies of Interpol are the General Assembly and its Executive Committee, and the General Secretariat. The General Secretariat is the actual management body which adopts key decisions.
Interpol’s National Bureaus exist at the local level in each member state and is responsible for carrying out the organization’s tasks in a separate country.
A special place in the central office system is occupied by an independent body — the Commission for the Control of Interpol’s Files (hereinafter — the Commission). Its function consists of supervising compliance with the rules of placement, processing and storing information in the Interpol database.
Search Database — System, Requirements, Procedure for Publication
Interpol’s search database means the scope of all data about wanted objects / subjects to whom the appropriate notices (cards) are assigned, depending on the purpose of search:
— Red notice means a search of a convicted or accused to extradite him/her;
— Yellow notice means the retrieval of missing persons;
— Blue notice means collection of information about a person, his/her location in the interests of an investigation;
— Black notice means unidentified bodies.
— Green notice means potential offenders and repeat offenders;
— Orange notice means a warning of possible danger to health and property of persons;
— Purple notice means the instruments of crime, criminal schemes, etc.;
The “red notice” is the most widespread and its placement is subject to the following requirements:
The crime for which a person is wanted shall be a crime in most countries throughout the world;
Punishment for such a crime is at least two-year imprisonment or the non-served part of a sentence is at least 6 months.
Procedure for Interpol Notice
Publication of data in the search database consists of 5 stages. In the context of Ukraine such a procedure shall be as follows:
- An investigator/prosecutor sends the request for search to the Ukrainian Bureau of Interpol.
- The Ukrainian Bureau conducts an initial inspection of the request with regard to compliance with the requirements of international acts, including those as adopted by Interpol.
- After completion of inspection the Ukrainian Bureau applies to the General Secretariat for publication of the request.
- The General Secretariat shall re-inspect the request. The specific organs for examination of the “ notices” shall be the Center for Command and Coordination of the General Secretariat and Legal Affairs Office.
- The General Secretariat shall publish a notice of search and notify all participating countries of this.
The “red notices” shall not be published automatically and such publication may be denied. In particular, Interpol rejected the request as filed by the Russian Federation for placing the “red card” in view of I. Kolomoisky, and disallowed the request of Ukraine regarding A. Pavlov (“Motorola”). Moreover, only a short time ago the General Secretariat denied the request for search as filed by the Russian Federation concerning V. Muzhenko, Chief of General Staff of the Armed Forces of Ukraine.
Meanwhile, there is a procedure for “preliminary appeal” against the decision on publication in search, as was used by MP O. Onishchenko. This procedure provides for consideration by the Commission of the complaint about illegality of search of a person prior to publication of the “red notice” by the General Secretariat.
Grounds to Reject the Placement of the “Red Notice” or its Removal
In practice the most common reasons for rejection of placement of the “red notice” or its removal shall be the following:
— Expiry of the valid period of sanction (Case of Yu. Ivanyushchenko when the period of ruling for a permit to take him into custody expired), amnesty or termination of criminal proceedings, etc.
It should be noted that in the event of repeated resolutions for the arrest warrant, “the red notice” shall be re-assigned, as happened in the Case of Yu. Ivanyushchenko.
At this date, as V. Nevolya, the Head of Ukrainian Bureau has stated, tracing requests will be re-canceled, if information about the termination of criminal proceedings against Yu. Ivanyushchenko is confirmed.
— Political motives of persecution / prosecution (Cases of D. Yarosh, I. Kolomoisky, М. Abliazov, R. Solodchenko, М. Ketebaiev, T. Paraskevych, etc.);
This reason is a strong argument both at the stage of publication of the data about a person (as an example — the above-mentioned “red notice” of I. Kolomoisky), and at the stage of appeal against the already published notices of search (as an example — D. Yarosh).
This ground is being actively used by the defenders of V. Yanukovych, V. Zakharchenko, the Klyuiev brothers, S. Arbuzov, A. Klimenko, S. Kurchenko and others.
On the other hand, the Commission found no political component in the search of E. Stavitsky.
— Commercial reasons of persecution/prosecution — the criminal prosecution of a person to take possession of his/her assets. For example, Interpol removed the “red notice” of Jordanian businessman F. Almhayrat, after it was proved that the purpose of criminal proceedings, as initiated against him consisted of dismissing him from the position of director and forcing him to transfer his shares to other shareholders.
Let’s note that such practice exists in certain post-Soviet states which consists of using Interpol’s tools to criminally prosecute Ukrainian businessmen. The purpose of such persecution consists of the state seizing the assets of suspects.
At the same time, Interpol’s channel is used to create public opinion about the suspect’s culpability without, as a rule, reinforcing this with any evidence.
Similar persecutions/prosecutions of Ukrainian business are contrary to Interpol’s policy, and by virtue thereof, in our opinion, resolutions for search of Ukrainian entrepreneurs should be reversed.
— Risk of violations of human rights — freedom of speech, right to a fair trial, prohibition of torture, etc. In particular, the case of Venezuelan journalist Rafael Poleo, whose right to freedom of speech in the home could be restricted.
— The purpose of the “notice “ placement was attained — the location of a person was identified, the person in question was seized or extradited. For example, today we do not see the “red notices” of Y. Kolobov, H. Guta, B. Timonkin
Procedure for Appeal Against the Placement of “Notice” in View of a Person in Interpol’s Search Database
The person, information about him/her is in the Interpol database, (his/her representative) has a right to apply to the Commission for the correction or deletion of personal information.
The following practical aspects should be noted here:
- The period for considering such a request is established “as soon as is practicable”. However, the Commission’s meetings are held rarely. Since 2017 the number of the Commission’s members has been increased from 5 to 7, and the number of meetings has been increased from 4 to 6, which, however, cannot significantly accelerate the consideration of thousands of complaints.
- The Commission does not decide independently, but only gives recommendations to the General Secretariat as the holder of the database.
- Unless the General Secretariat complies with the recommendations, the Commission has the right to appeal against the General Secretariat’s inactivity to the Executive Committee.
Consequently, the procedure for considering the claims pertaining to placement of “red notices” is durable and formalized.
I would like to draw your attention to the fact that only a small proportion of “red notices” (about 2%) has been published on the Interpol website. Subject to the foregoing, our guess is that it is necessary to receive written confirmation of removal of the “card” from Interpol’s central office (in particular, such a confirmation was received by the legal representatives of R. Bogatyriova).
Alternatives Ways of Interpol Notice
For example, the national bureau may launch so-called “diffusions” on Interpol’s internal network — notices on the need to arrest a person to be served to a certain circle of other national bureaus and which are not public.
The procedure for publishing “diffusions” is not formalized, unlike publication of “red notices” and allows the arrest of a person without all the formalities and requirements of Interpol being complied with. In particular, wanted notices regarding Ukrainian roofers P. Ushevets and G. Tagramadze were issued in line with the “diffusions” procedure.
Countries where Interpol “Will Not Reach”
At the moment, Interpol’s participants are 190 countries — in practice it is the entire globe. However, there are a number of “exotic” countries which do not cooperate with Interpol. For example, North Korea, Palau, Solomon Islands, Federated States of Micronesia, Tuvalu, etc. The Vatican was the last country to join Interpol.
The “red notice” issued by Ukraine are often removed, as often the persons detained by Interpol are extradited to Ukraine.
So, the restaurateur A. Zadorozhny was extradited from Croatia, and recently the Cherkasy agro-businessman V. Babko was extradited from Serbia to Ukraine.
Countries with higher requirements for ensuring human rights and freedoms most often reject extradition to Ukraine. As an example, Italy refused to extradite I. Markov, and Spain banned the extradition of Y. Kolobov.
Therefore, Interpol is an organization with whom cooperation can bring many advantages to Ukraine. At the same time, the key of efficient interaction should become the proactive work of Ukrainian law-enforcers regarding justification of non political prosecutions, due prolongation of sanctions and providing the International Criminal Police Organization with the necessary documents.