A recent decision by the European Court of Justice (Case C-505/19 from 12th May 2021) ruled that a person may not be arrested within the EU and extradited out of it due to an Interpol Red Notice if a final court decision has already been issued in an EU state with regard to the offence in question. In the background of this decision is the prohibition of double jeopardy applicable in the Schengen area (Art. 54 of the Convention Implementing the Schengen Agreement (CISA), Art. 50 of the EU Charter of Fundamental Rights).

In this article, we will provide details on this particular case, and what it may mean going forward. At Schlun & Elseven Rechtsanwälte, our extradition lawyers provide expert advice and premium support to our clients involved in extradition law cases and Interpol proceedings. We often support our clients from all over the world with the removal of Interpol Red Notices and other matters. To contact our legal team directly, you can contact us by phone at +49 221 93295960 or by email at info@se-legal.de. Our extradition lawyers look forward to working with you.

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The Court Case

The case in question concerned a German citizen (WS) who was the former manager of a large company. In 2012, the USA sought an Interpol Red Notice against him concerning fraud, money laundering and corruption allegations related to his company activities. As a result, Interpol issued the Red Notice for the arrest of WS on behalf of the USA. However, in 2009 he had faced a case in Germany relating to the same allegation. Still, these criminal proceedings were discontinued in return for payment of a fine (per § 153a (1) Code of Criminal Procedure). WS brought forward the argument that this move to place an Interpol Red Notice on him was in breach of Interpol rules on double jeopardy.

The German authorities, the federal police, agreed with this position, that double jeopardy applied, and they made a request to have the Red Notice withdrawn. However, in 2013, they could not convince the US to delete the request. The non-deletion of the Red Notice severely limited WS’ right to Freedom of Movement within the Schengen Zone and the rest of the European Union as he would face arrest if he left Germany.

In 2017, he brought a case against the Federal Criminal Police Office (Bundeskriminalamt – BKA) before the Administrative Court in Wiesbaden (Verwaltungsgericht Wiesbaden) on this basis. The BKA is the National Central Bureau for Interpol in Germany. WS brought his case with two specific grounds of concern, firstly, the continued existence of the Interpol Red Notice was an unlawful interference with his right to European Freedom of Movement and secondly, his legal team stated that the continued processing of the Interpol data by European Member States was contrary to the Law Enforcement Directive.

The court in Wiesbaden referred the matter to the ECJ and asked them to provide a preliminary ruling on six questions relating to the case. Preliminary rulings consist of the European Court of Justice providing a decision on how European law should be interpreted. They are given following a request by an EU Member State court or tribunal. This decision is then binding, and the court in the EU Member State is obliged to enforce it.


The Prohibition of Double Jeopardy and Double Prosecution

The principle of double jeopardy refers to the prohibition of parties being tried and convicted for an offence on which another court has already provided a final judgment. Double jeopardy prohibits the accumulation of prosecutions and sanctions of a criminal nature against the same person for the same offence (ECJ, judgment of 20.03.2018, Case C-537/16, para. 27). It serves to ensure legal certainty in that the person concerned can rely on not being prosecuted again for the same offence after a final decision has been taken. Article 50 of the EU Charter of Fundamental Rights states:

Article 50 – Right not to be tried or punished twice in criminal proceedings for the same criminal offence

No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.

This EU Charter of Fundamental Rights applies to the EU Member States and the rest of the Schengen area. Another source of a legal agreement between Schengen states is Article 54 of the Convention Implementing the Schengen Agreement. This article states that:

“A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.”

One of the issues in this particular case concerning double jeopardy was that the Public Prosecution Office of Munich accepted a fine rather than bring the matter to a conclusion in court. This is permitted under German law by § 153a Code of Criminal Procedure. Previous decisions from the ECJ (ECJ, Judgment of 11.02.2003, Cases C-187/01 and C-385/01, para. 48) had decisively ruled that renewed prosecution must be ruled out in such cases.

In the light of the foregoing considerations, the answer to the questions must be that the ne bis in idem principle (double jeopardy) laid down in Article 54 of the CISA also applies to procedures whereby further prosecution is barred, such as the procedures at issue in the main actions, by which the Public Prosecutor in a Member State discontinues, without the involvement of a court, a prosecution brought in that State once the accused has fulfilled certain obligations and, in particular, has paid a certain sum of money determined by the Public Prosecutor. (ECJ, Judgment of 11.02.2003, Cases C-187/01 and C-385/01, para. 48.)


The Decision of the ECJ

The ECJ ruled that data processing relating to Interpol Red Notices in cases where double jeopardy barred prosecution was allowed. Without the processing of such data, the other Member States would not be aware that double jeopardy may apply in the situation. However, there are limits on the data processing, as it must comply with the requirements of the European Directive 2016/680. Such limitations include continuing to process the data as if the individual concerned was still sought after by the authorities even where the principle of double jeopardy exists in the case.

The prohibition of double jeopardy does not prevent the provisional arrest of a person subject to an Interpol Red Notice by the relevant authorities in CISA or EU member states unless the Red Notice is based on the actions that have already been ruled upon. If there is uncertainty whether the prohibition of double jeopardy applies, the individual can still face provisional arrest, and it is up to the courts to make the final decision on whether double jeopardy does apply.

Should double jeopardy apply, the individual can seek the deletion or alteration of data in Member States’ databases (as it applies) to demonstrate that they are no longer subject to the Interpol Red Notice. This scenario applies where data has been stored, which may indicate that the individual is still subject to an Interpol Red Notice. Therefore, it heavily impacts their ability to travel and other rights.  Consequently, the interference with their rights of European Freedom of Movement will be removed.


The Impact of this Decision

This decision has indicated a greater extension of the scope of protection of the prohibition of double jeopardy. It reinforces the principles outlined in Article 54 of the Convention Implementing the Schengen Agreement alongside Article 50 of the EU Charter of Fundamental Rights, and that the decision does not need to provided by the courts if another mechanism within the Member State has provided the decision in the matter (such as in the payment of the fine by WS).

This case also demonstrates how decisions made by third countries (other Interpol states) can impact the freedom of movement and other rights of European citizens. Third countries may issue Interpol Red Notices, but a Schengen state may make the subsequent provisional arrest. Although the individual may be sought after for criminal prosecution solely in the third country, their rights as a European citizen will be greatly affected by the issuance of the Interpol Red Notice.

Finally, it demonstrates the importance of Art 87 Interpol’s Rules on the Processing of Data. This states that member states of Interpol are only obliged to make the provisional arrest of an individual if this is permissible under the law. If concerns exist regarding the legality of the Interpol Red Notice and its interaction with other applicable international treaties, such as in this matter concerning the prohibition of double jeopardy, then this needs to be challenged. Interpol Red Notices cannot be issued for politically motivated reasons, and they need to be concerned with a serious ordinary-law crime allegation (the threshold is “an offence that is punishable by a maximum deprivation of liberty of at least two years or a more serious penalty” (Art. 87 Interpol’s Rules on the Processing of Data)). However, Interpol Red Notices can be open to abuse, and expert legal advice should be sought in these cases.


Extradition Lawyers in Germany: Full-Service Legal Support

Are you the subject of an Interpol Red Notice? Do you have reasons to be concerned that you may be subject to one? Contact expert legal counsel today.

At Schlun & Elseven Rechtsanwälte, our German extradition lawyers provide premium legal service in matters concerning extradition law and Interpol proceedings. From our offices in Germany, we advise and support our global clients. Our full-service approach allows our experts to analyse your case from all possible viewpoints thoroughly. At Schlun & Elseven, our dedicated extradition law team is reinforced by our experts in immigration law, family law, criminal defence and many other legal fields, allowing us to create specific solutions tailored to the details of your case. Contact us today by phone at +49 221 93295960 or by email at info@se-legal.de. Our extradition experts are ready to oversee your legal defence.

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