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Senior Partner, AVER LEX
Partner, AVER LEX
Why Ukraine Needs INTERPOL
The International Criminal Police Organization, aka INTERPOL, despite the associations that come with its name, is not a typical police agency involved in investigations, whose officers capture the most wanted criminals all across the world.
In reality, it is a high-technology organization designed to assist the law-enforcement agencies of countries within the INTERPOL system, of which there are currently 194. INTERPOL is essentially an “international data bank” in the field of criminal justice and a global network for dissemination of information about wanted persons, potentially dangerous persons, missing persons and stolen works of art.
Basically, INTERPOL assists countries from different continents in the exchange of information about wanted criminals, helping them trace and, in the event of locating them, detain them for further examination and application of the corresponding procedures.
The search types are specified as colored notices (requests): red, blue, green, yellow, black, orange and purple. The red notice often becomes a subject of discussions; there are lengthy procedures and numerous requirements for it, as it is issued to search and arrest a wanted person for their subsequent extradition.
In terms of the international search of persons, INTERPOL publishes only red notices, but also not with regard to all individuals. That is why, if you suspect that a red notice was published against you, you can send an information request to the Commission for the Control of Interpol’s Files (CCF). This will not have a negative impact on the investigation or legal proceedings in a case.
If INTERPOL issued a notice, getting removed from the INTERPOL database, i.e. removing your name from the red notice list, is a lengthy and labor-intensive procedure, while its success depends on employing an experienced lawyer who practices in this area. The request on removal from the list must contain clear information confirming the ungrounded nature of the search and proof to confirm it. The request is considered by the Commission for the Control of Interpol’s Files.
It is worth noting that when a person against whom a notice was published obtains citizenship of the country, where such person is staying, this does not remove the notice and extradition when travelling to a different country. Due to this, only obtaining political asylum provides a possibility to request removal of the red notice, with reference to Article 3 of the Constitution of INTERPOL.
The interaction between INTERPOL’s General Secretariat and member states takes place through national central bureaus, operating on the basis of the law-enforcement agencies of such states.
Ukraine became a member of INTERPOL in 1992 and has since then been actively working with international partners involved in the search for wanted persons. Overall, the start of partnership between Ukraine and INTERPOL was actively discussed in the 1990s; it was an important achievement and had great significance for the role of the country on the international arena.
However, now, the situation has changed somewhat, partially due to certain ambiguity of laws, and partially because of the abuse of the mechanisms and possibilities of INTERPOL.
There are provisionally two main reasons causing new trends to appear in the work of Ukrainian law-enforcement agencies in the sphere of international search of wanted persons.
The first one is that the number of red notice requests to INTERPOL continues to increase further. There have been frequent attempts to get INTERPOL to issue red notices against an “undesirable” person or political opponents. However, the Constitution of INTERPOL prohibits any intervention in cases of a political, military, religious or racial nature. INTERPOL does stick to this rule. That is why, if INTERPOL discovers the political nature of the persecution of a person, the organization denies a notice request. There have been many such cases lately.
Indeed, politically-motivated persecution and attempts to get a person by using the red notice list have a strong negative impact on the country’s image.
The second reason is the issue that elaborates on the topic of this article. Namely, that Ukrainian law-enforcement agencies have begun to dismiss the necessity of a red notice and come up with new methods of working without having to involve INTERPOL. This is largely due to INTERPOL’s refusal to publish red notices.
A special pre-trial investigation (in absentia) once again requires that a person is on the international wanted list (red notice list). In general terms, ever since the provisions on in-absentia investigation and trial were introduced to Ukrainian laws it has been mandatory for a person to be on the international wanted list for the application of such a procedure. Subsequently, in order to facilitate criminal prosecution of some former top government officials, lawmakers introduced a provisional special procedure for in absentia pre-trial investigations and trials. It was a simplified procedure that provided for several grounds for an “in absentia investigation”, with international search being one of them, and not a mandatory one.
Starting from 27 November 2018, i.e. from the day the State Bureau of Investigation of Ukraine began to operate, the aforementioned simplified procedure became ineffective and, once again, international search became a mandatory condition for a court to issue permission for an in absentia pre-trial investigation to be held.
Another mandatory rule of the Criminal Procedure Code of Ukraine related to the international search of a person is that an investigating judge may consider a motion for selection of such measure of restraint as putting a suspect into custody in his/her absence or accused solely in case the prosecutor proves that the suspect has been put on the red notice (internationally wanted) list.
However, Ukrainian law-enforcement agencies have increasingly frequently received rejections from INTERPOL with regard to issuing red notices (and often due to the prohibition of intervention in cases of a political nature).
That is why the current situation is that an investigator issues a resolution on putting a person on the international wanted list and submits this document to a court as proof that the suspect is on the international wanted list.
To prove the incorrectness of this approach, we first need to ascertain, when exactly is a person considered to have been put on the international wanted list?
The Criminal Procedure Code of Ukraine does not provide a direct definition of the term “international wanted list”. However, the Guidelines on the Procedure of the Use of the Possibilities of the National Central Bureau of INTERPOL in Ukraine on preventing, solving and investigating the crimes envisages that an international search for persons are carried out using the channels and possibilities of INTERPOL.
The search for a person using the channels of INTERPOL is confirmed by the issuance of the red notice by the INTERPOL General Secretariat and publication of this red notice in its database.
That is why a resolution of the investigator or even a letter written by the National Central Bureau of INTERPOL in Ukraine confirming that law-enforcement agencies have submitted an application for a red notice cannot serve as confirmation that a red notice was published against a person.
It is noteworthy that judicial practice in this issue is ambiguous. There is the position of courts, which has been set out in their judgments, when the decision of INTERPOL on issuance of the red notice and including the person in its database is required to confirm that a person is indeed wanted internationally. For example, in a number of decisions the Kyiv Court of Appeal states that a suspect who has been declared to be internationally wanted should be considered only as a person who is put on the international wanted list and this is confirmed by relevant certificates and extracts from the Interpol database. There is also a different practice, when the court deems the resolution of the investigator as sufficient.
In the view of such different approaches, the work of the lawyer, specializing in this area and understanding the processes of the red notice and international wanted lists both from the standpoint of Ukrainian law and from the rules regulating the operation of INTERPOL, and who has already worked with INTERPOL procedures, is vital.
In addition, it would be logical to settle the issue at the legislative level; to enshrine the notion of the red notice and international wanted list, and clearly determine the procedure in the Criminal Procedure Code of Ukraine. By this, we mean to determine in the law that the person is put on an international wanted list by INTERPOL (red notice), and not by a resolution of the investigator.
Instead, Ukraine has decided to take a different path and decided to make the work of law-enforcement agencies easier. A draft bill was submitted to the Verkhovna Rada of Ukraine, which proposes to replace the requirement of the international wanted list (red notice) in the criminal procedure law with the resolution of the investigator/public prosecutor on putting a person on the wanted list.
Be that as it may, Ukraine has travelled a long and difficult path since 1992, when it established itself on the international arena as an important partner in the area of criminal justice. A large number of serious operations have been carried out to fight crime.
However, instead of refraining from politically-motivated prosecution of persons or improving work in terms of the validity and substantiation of requests, there are attempts to simply remove the requirements regarding the international wanted list (red notices) from the Ukrainian criminal procedure.
It is worth noting that news publications still contain a sufficient number of mentions about Ukraine’s cooperation with the law-enforcement agencies of other countries with the involvement of INTERPOL in order to combat cross-border crime. That is why the logical conclusion is that the changes outlined to legislation will, in the event of their approval, have the biggest impact on persons who are subjected to political persecution.
At the present time we have a new interpretation of the requirements of the law, or “favorable” for a specific situation, calling the actions of INTERPOL politically biased, which does not improve the work of our law-enforcement system and, as a result, leads to the violation of human rights.