The Commission for the Control of INTERPOL’s Files Publish Redacted Decisions

In a further effort to appear open and transparent in its operation, the Commission for the Control of INTERPOL’s Files (“CCF”) last week published a fresh batch of redacted decisions from 2018 and 2019, bolstering the total number of decisions available for the period 2017-2019 to 45.

Of the ten decisions that have been published from 2019, four determined that the data held in INTERPOL’s database were not compliant, although none of these was based on a violation of Article 3 of INTERPOL’s Constitution which states “it is strictly forbidden for the Organization to undertake any intervention or activities of a political, military, religious or racial character”. Only Decision No. 9 of 2019 raised political motivation, an argument that appears to have been given short shrift by the CCF, who unhesitatingly found the data held to be compliant with INTERPOL’s Constitution and Rules on the Processing of Data (“The Rules”). Although there were some political elements to the case, the facts (as far as can be gleaned from the heavily redacted decision) were clearly insufficient to satisfy the predominance test; the applicant was not himself political and there appeared to be strong evidence of a personal gain from the collapse of a large company. The applicant’s affiliate links were not sufficiently strong to demonstrate he was part of a larger political reprisal. These findings led the CCF to determine that the Red Notice should remain in place.

In other decisions, it was disappointing to discover that Red Notices still existed in INTERPOL’s database for offences of “uttering an unfunded cheque”, a criminal offence in the UAE, but not in the majority of INTERPOL’s member states. However, it was encouraging that the CCF found that ‘the mere act of issuing an unfunded cheque where no criminal intent has been demonstrated’ does not meet the criteria of a “serious ordinary law crime” – a pre-requisite for the publication of a Red Notice under Article 35(1) of the Rules.

Staying with cases of “uttering an unfunded cheque”, the CCF published a decision that revealed for the first time the minimum threshold required by INTERPOL’s General Secretariat for the publication of Red Notices. In previous decisions, the CCF had alluded to such a threshold being in existence. In Decision No. 2 of 2018, for example, the CCF had referred to a) the ‘General Secretariat’s implementing rules in this type of case [unfunded cheques] as expressed in its diffusion….’ and b) the minimum threshold envisioned by the General Secretariat has been reached by far…’, but without revealing what that threshold was. Disclosure requests for the General Secretariat’s ‘implementing rules’ and disclosure of the minimum threshold envisioned by the General Secretariat have gone unanswered by the CCF. It was therefore a pleasant revelation to see in Decision No. 1 of 2019 an explicit articulation of the minimum criteria required by the General Secretariat for the publication of Red Notices for unfunded cheque cases: 1) the threshold being not less than a value of $10,000 or 2) where there are multiple cheques on several occasions in a repetitive manner, regardless of the value of the cheques.

The first criterion of this threshold test appears to be unduly low. Even the UAE, who imprisoned over 480 individuals during the financial crisis of 2008, no longer imprison those convicted of uttering unfunded cheques under AED 200,000 (approximately $54,000). As reported here, in December 2017, the offence of uttering an unfunded cheque under the value of AED 200,000 was de-categorised to a misdemeanour, carrying a maximum sanction of a financial penalty. As such, Red Notices can no longer be requested by the UAE NCB for unfunded cheques under the value of AED 200,000, on the basis that the offence does not carry at least two years’ imprisonment, as required by Article 83(ii) of INTERPOL’s Rules. It is therefore unclear why the figure of $10,000 was chosen as being the threshold at which the General Secretariat will publish a Red Notice.

The justification for the second criterion is an attempt to establish whether there is the presence of a further ‘scheme of fraud’ that may give rise to different charges under various domestic laws that would establish dual criminality. The CCF in past decisions has accepted that although the offence of ‘uttering an unfunded cheque’ is a criminal offence in the UAE, such an offence would probably not be recognised as an extradition offence in many other national systems, where the lack of dual criminality would prevent national authorities from acting upon requests for police co-operation. Therefore, the conduct of ‘uttering an unfunded cheque’, without more, would not satisfy the dual criminality doctrine. It is the ‘without more’ that the second criterion attempts to address. The existence of multiple unfunded cheques was held in Decision No. 2 of 2018 to be a determining factor in resolving that the data held by INTERPOL was compliant with its Rules. The applicant in that case had been convicted of five offences of uttering an unfunded cheque, each over $10,000, which was sufficient for the CCF to conclude that the offence may have illustrated a “fraudulent scheme of fraud”, with the presence of a criminal intent resulting in conduct other than ‘uttering an unfunded cheque’ that could contain an element of criminal intent. This finding mirrored the representations made by the applicant NCB when it submitted that the applicant was wanted in connection with a large number of unfunded cheques, numerous criminal cases were registered and the CCF should take into account of the repetition of the criminal activity in establishing the criminal intent.

Disclosure of these minimum criteria when that information had previously been redacted may have been intentional, but may equally have been a mistake. Indeed, other published decisions that are heavily redacted so as to cautiously conceal i) the identity of the applicant, ii) the applicant NCB, iii) the nationality of the applicant, and iv) the underlying facts of the application, contain one or two similar mistakes. In Decision No. 6 of 2018 and Decision No. 14 of 2018, for example, the identity of the applicant NCB is found later in the decision despite being redacted at the outset.

Despite the minimum criteria appearing to strike a blow to those seeking to challenge Red Notices published for the offence of ‘uttering an unfunded cheque’, particularly those who have registered against them cases involving multiple cheques, Decision No. 1 of 2019 makes clear that the CCF will continue to have ‘strong concerns’ about cases where the mere act of issuing an unfunded cheque where no criminal intent has been demonstrated will not meet the criteria of a “serious ordinary-law crime”. As such challenges should continue to be made in such cases where Red Notices have been published. For those whose cases do involve multiple unfunded cheques, evidence is likely to have to be produced to rebut the assertion that this fact alone demonstrates a scheme of fraud. This is an area that historically the CCF has been keen to avoid; the CCF’s own procedural guidance for applicants makes clear it is not “empowered to lead an investigation, to weigh evidence, or to make a determination on the merits of a case. Only the competent national or regional authorities may do so”. However, the CCF has made clear in its recent decisions involving unfunded cheques that the evaluation of compliance with its Rules requires a case-by-case analysis before a decision can be taken and will therefore necessarily include a deeper dive into the underlying facts of a case than it would ordinarily undertake.

The publication of further decisions (albeit in redacted form) is to be applauded. It provides practitioners advising on INTERPOL matters with a better understanding of the workings of the CCF and also provides a body of case law to refer to. Although not binding on the CCF, its past decisions may be persuasive on future CCF decisions and at the very least will help to tailor representations.