by
Malcolm Hawkes

Biggles of the Interpol, one of the later novels of the eponymous ‘Air Detective-Inspector’ conjures a romantic image of the global crime-fighting organization, which now unites 190 police forces across the world. Always on the side of justice, Biggles would succeed in thwarting thieves, smugglers and the bad. However, the use and abuse of Interpol by states who do not play by the rules reflects growing concern about the role and integrity of the organization which has acquiesced to politically-motivated requests in a number of cases.

Central among these concerns lies the Red Notice, in effect an international arrest warrant, issued post- and pre-conviction the very fact of which often remains secret. Invariably a Red Notice can remain in force, long after any extradition proceedings have been defeated, no matter how glaring the injustice of the original request. Interpol rarely appears to apply any filter in accepting requests; rather, the scrutiny appears to take place, if at all, after the fact.

Safeguards

Interpol’s constitution contains two safeguards: First, Article 2, which requires it to operate ‘with the limits of the laws existing in the different countries and in the spirit of the Universal Declaration of Human Rights’; and second, Article 3, which strictly forbids it from undertaking any intervention or activities ‘of a political, military, religious or racial character’.

The Commission for the Control of Interpol’s files (‘the CCF’) is responsible for considering written applications to delete Red Notices. In exceptional cases, the CCF may meet with the applicant and/or their legal representatives. In considering a petition, the CCF applies a ‘predominance test’ whereby it evaluates the criminal, as opposed to the political, aspect of the case as well as its obligations pursuant to international law, its constitution and the context of the case as a whole.

The new head of the CCF, as of September 2014,Nina Vajić is a former judge of the European Court of Human Rights. In that role, she gave judgment in the pivotal 2012 decision on Russian prison conditions and Article 3 (torture) in Ananyev v Russia.  She ought therefore to need little persuading as to the severe consequences of issuing Red Notices on Russia’s behalf. After all, if the Russian authorities are incapable of holding a detainee in conditions which do not amount to torture or ill-treatment, ought Interpol to be entertaining any Red Notice requests from Russia at all?

Russia’s track record is cause for deep concern. For example, Peter Silaev, a Russian environmental activist who campaigned to protect a forest from development at Khimki in Russia, was accused of ‘hooliganism’ following a demonstration. Granted asylum in Finland, in August 2012 he travelled to Spain where he was arrested on the foot of a Russian Red Notice. Stranded in Spain, it took 6 months for a Spanish court to reject the Russian extradition request, yet Interpol refused to rescind the Red Notice for a further 18 months, despite the obvious political motive in that case.

This is not an isolated case. Anastasia Rybachenko, a political activist with the Russian Solidarnost movement, was reportedly the subject of a Red Notice following her participation in an anti-government demonstration in central Moscow in 2012. She fled to Estonia, fearing persecution, yet Interpol failed to respond to her petition to withdraw the notice, while the ‘offence’ itself was later the subject of an amnesty by the Russian authorities.

When the head of Hermitage Capital, William ‘Bill’ Browder uncovered an alleged £230m tax fraud in Russia committed by tax officials themselves, the response of the Russian authorities was to bar him from the country and to imprison one his lawyers, Sergei Magnitsky. Held in prison for a year in appalling conditions and deliberately denied medical treatment, in an apparent attempt to force him to deny the allegations, Mr. Magnitsky was beaten to death by prison guards on 16 November 2009. Oleg Silchenko led the police investigation and is alleged to have personally overseen Mr. Magnitsky’s torture and ill-treatment. In a macabre Russian legal first, in March 2013, Mr. Magnitsky was posthumously tried and convicted of offences of tax evasion; Mr. Browder was also tried and convicted of the same offences in absentia.

Thereafter, in May 2013, Russia issued a Red Notice in Bill Browder’s name; the furore around the Magnitsky case led Interpol to convene a special meeting after which it announced it would delete the request. Russia then accused Mr. Browder of further offences in another Red Notice request; this too, was rejected, on the grounds that it was politically-motivated.  Rumours continue to swirl about future Red Notice requests from Russia in Mr. Browder’s name, yet no-one involved in the arrest, torture and murder of Mr. Magnitsky has ever been prosecuted. Most notably, the chief investigator, Oleg Silchenko, has not merely been promoted and received awards for his work, despite being blacklisted by both the US and the EU, he continues to issue Red Notices in other cases, too.

Although Interpol can be praised for its stance regarding Mr. Browder, unlike many who are subject to such requests, he has the benefit of being a determined campaigner and both well-connected and wealthy. The fact the organization continues to accept Red Notice requests from Russia, authored by Mr. Silchenko at all is cause for serious concern.

Not least, because the corollary of being the subject of a Red Notice is an inability to travel internationally without a fear of arrest, detention and protracted extradition proceedings. For some, that might be merely an inconvenience; for others, with multinational business interests, that may be highly punitive.

This makes the scrutiny of Red Notice requests, before they are issued, all the more important to ensure that no politically-motivated or otherwise abusive requests are acted upon. The jury is out on whether under Ms. Vajic’s chairmanship, the CCF will act more robustly in refusing Russian Red Notice requests.

A rise in Russian cases?

Russia is currently facing innumerable serious problems. Its intervention in Ukraine has led to international isolation, sanctions and enormous military and civilian expenditure. At a time when the price of its principal export of oil has collapsed, causing the ruble to plummet, the country is paying a heavy price for having failed previously to diversify its economy away from hydrocarbon exports. It has also failed adequately, or at all, to address systemic corruption in every sector of society, including the courts and the police. Capital flight in 2014 was estimated to amount to $150bn; the estimate for 2015 is similar.

Now it needs that money back, Russia is pushing forwards a process of de-offshorisation, the aims of which are twofold: 1) to reveal the location and value of assets held by Russian nationals off-shore; and 2) to encourage their repatriation. New laws entered into force on 1 January 2015 which affect the tax residence of legal entities and are aimed at Russian nationals who are deemed to own or possess an interest in Controlled Foreign Companies (CFCs). Such nationals are now obliged to declare their holdings and pay the necessary taxes on them. Failure to do so by December 2017 will entail financial and criminal penalties.

This raises the question of to what extent will such individuals be pursued? The number of tax disputes in Russia is said to be rocketing. In a corrupt society, everything has its price. Those who otherwise comply with the law will be concerned that their legitimate off-shore assets may be at risk from corrupt practices and will wish to protect them. Those who do not may resort to the same to avoid transparency. Either group may well find themselves the target of prosecutions, Red Notices and fighting extradition requests.

These are likely to be testing and busy times for Interpol and those who advise upon Red Notices. If it is to fully comply with its own constitution, and the promise of its legendary Air Detective Inspector, the organization must give greater pause before rubber stamping Red Notice requests issued by abusive regimes.

Malcolm Hawkes