INTERPOL in the spotlight: a bite-sized guide to Red Notices

INTERPOL Red Notices have been in the spotlight since one was issued in respect of businessman Carlos Ghosn in December 2019 following his flight from Japan to Lebanon. Another high-profile Red Notice has very recently been issued in respect of Anne Sacoolas, the US national suspected of being involved in a fatal motor accident in the UK. But what exactly is a Red Notice and, more importantly, does it work?

Red Notices in action

A Red Notice is not an arrest warrant. Rather, it is an “international wanted persons notice”. It may be issued at the request of one of the National Central Bureaus (“NCBs”) of INTERPOL’s 194-member countries. However, INTERPOL does not itself actively pursue the arrest of individuals that are the subjects of its Red Notices. Instead, a Red Notice alerts the other NCBs that an individual is being sought for the commission of a criminal offence(s). And although a Red Notice’s issue may restrict an individual’s ability to travel and work, each INTERPOL member country decides the legal value of a Red Notice for itself, before an arrest warrant is issued. In our experience, the length of a member country’s determination can vary wildly.

Should an NCB receiving the Red Notice learn of the wanted individual’s location, it must immediately inform the requesting NCB or the General Secretariat of INTERPOL. It must also take all “other” steps “permitted under national law and applicable international treaties”. These may include arresting the individual or restricting their ability to travel. However, the steps taken will ultimately depend on the application of domestic law and, in our experience, may not always lead to the wanted person’s arrest or extradition. The US has already indicated it will not be extraditing Ms Sacoolas any time soon.

However, once issued, a Red Notice becomes notoriously difficult to challenge. This makes the selection and adoption of the right strategy for dealing with a Red Notice crucial.

Red Notices within the INTERPOL armoury

Red Notices are in fact only one of nine types of alert mechanism available to NCBs. These include notices to seek information about unidentified bodies (Black) or a person’s location and activities (Blue); or to provide warnings about a person’s criminal activities (Green) or events (Orange). The range of investigative tools available to INTERPOL should not be underestimated; our experience has shown that alternatives to Red Notices can create similar risk profiles. For example, Blue Notices may be used by an NCB in order to allow a member country to then issue a bilateral request for criminal assistance to another member nation, wholly outside of the Red Notice process – but with the same practical consequences.

Confirming the existence of a Red Notice

The Red Notice issued for Carlos Ghosn is publicly available (accessible here). However, most Red Notices can only be accessed by INTERPOL member countries’ NCBs. A wanted person may not even realise that a Red Notice for their arrest has been issued until they are arrested. It is important to note that individuals can ask INTERPOL to confirm whether a Red Notice has been issued. This can give more certainty for the purposes of risk management and forward planning. However, a decision proactively to inquire about the existence of a Red Notice should be made with care; the procedural rules governing such requests are complex and specialised and, in our experience, require expert input and consideration.

The Commission for the Control of INTERPOL’s Files (“CCF - an independent body responsible for overseeing INTERPOL’s processing of individuals’ data) may, on the individual’s request, confirm that a Red Notice has been issued. But it may also refuse to disclose such information, even where the NCB cannot explain why disclosure should be withheld. Approaching the requesting NCB directly carries additional risks -it may prompt arrest or inadvertently lead to INTERPOL making the Red Notice public. Any request must also be made in accordance with the complicated procedural rules applicable to INTERPOL.

Challenging a Red Notice

Challenges to Red Notices require a clear strategy from the outset. In our experience, the most robust and well-received challenges are those which have been carefully considered in advance; kneejerk challenges are less likely to succeed. Those individuals who are prepared to challenge a Red Notice should also prepare for a potentially lengthy and complicated process - our experience has also shown such challenges to be governed by specific rules and procedures which need to be carefully negotiated.

Pre-emptive strikes

It can often be much quicker, easier and cost effective to issue a preventative request to the INTERPOL CCF explaining why it would be improper for a Red Notice to be issued upon a request being received.

Such pre-emptive requests must be carefully crafted, both in substance and form. Prepare them when the risk of a Red Notice first arises so they will be ready to be deployed at a moment’s notice.

Requesting deletion

A request to delete an inappropriate Red Notice can be made to the CCF at Interpol Headquarters in Lyon. Decisions of the CCF are binding upon INTERPOL. However, since the Request Chamber has four months or more in which to issue its decision, it is often difficult to insert urgency into Red Notice challenges.

Grounds for challenge

There are a variety of possible grounds upon which to challenge an inappropriate Red Notice. Some of the most common grounds include that the Notice:

• constitutes a violation of Human Rights (Article 2 of INTERPOL’s Constitution)
• is predominately “political; military, religious or racial in character”, so contrary to INTERPOL’s Neutrality Principle (Article 3 of INTERPOL’s Constitution)
• no longer meets the minimum criteria in its Rules (Article 83 of INTERPOL’s Rules on the Processing of Data (“RPD”))
• could prejudice the interests of INTERPOL or a member of INTERPOL (Article 77 of RPD.

Comment

Although Red Notices are an essential part of international law enforcement, INTERPOL’s Red Notice system has been abused in the past. Since 2015, INTERPOL has worked to increase the clarity and reliability of its processes and procedures. However, the current system is still difficult to navigate and lacks an appeal process. This presents significant challenges for wanted individuals looking to clear their names. Even when removed by INTERPOL, Red Notices often remain active in national databases. Those looking to challenge a Red Notice should try to minimise the effect on their freedom and reputation by devising a clear strategy for dealing with the Notice early on. That could involve pre-emptive steps being taken and, in any event, will require careful consideration and appreciation of the very particular procedural rules in place.