Interpol Bans Red Notices in Unfunded Check Cases – But at the Same Time Continues to Publish Them
On the 28th of January 2022 Interpol’s General Secretariat published a new legal document setting out a list of prohibited crimes for which Red Notices may not be published. The list is available as a pdf on Interpol’s public website. To date the list has largely escaped the attention of the Interpol community. But it deserves close scrutiny, most notably because Interpol has now deemed that Red Notices for Unfunded Checks do not meet the minimum standards under Article 83 of the Rules for the Processing of Data.
Red Notices for Unfunded Checks have caused great controversy for Interpol in recent years mainly because of the large number of such notices issued by countries in the Middle East particularly the United Arab Emirates. It is common practice in the UAE for lenders to require post-dated cheques from borrowers for the entire period of the loan repayment. This provides a form of security for the loan. If the borrower fails to make a loan repayment the lender is entitled to present the post-dated cheque for encashment. When it bounces, criminal prosecution can follow. Pursuant to Article 401 of the UAE Federal Penal Code (Federal Law No 3 of 1987) the offence of uttering an Unfunded Check over the threshold value of AED 200,000 carries a maximum sentence of three years imprisonment.
Interpol’s decision to issue a blanket ban on Red Notices in Unfunded Check cases is not a huge surprise. The likely rationale for the General Secretariat’s pronouncement can be found in a 2019 decision of Interpol’s appellate body, the Commission for the Control of Files (“CCF”) in which it held that Red Notices for unfunded checks were not compatible with Interpol’s Rules.
CCF Decision Excerpt No 1 of 2019 concerned an applicant who was unable, due to serious financial difficulties, to repay a loan that he had taken out. He claimed he had no intention of issuing an Unfunded Check and was trying to reach a settlement with his debtor. The Applicant was suspended from work and faced the prospect of dismissal after his security clearance was compromised by a Red Notice issued against his name.
The CCF noted that a “large number of Interpol member countries do in fact consider the inability to pay a debt as a civil rather than criminal matter” and
“expressed strong concern that the data on the applicant in Interpol’s files may not be of interest for the purpose of international police co-operation. Indeed, it appears to the Commission that, in the particular case of the applicant, the mere act of issuing an unfunded check with no criminal intent has been demonstrated does not meet the criteria of a ‘serious ordinary law crime’.”
Despite these welcome developments, the recent case of Brian Glendinning suggests that Red Notices are still being disseminated on Interpol’s databases for Unfunded Checks. Glendinning was arrested in Iraq on a Red Notice having run up a small debt in Qatar and now faces extradition to that country.
Cases such as these do not enhance Interpol’s standing as an international organisation. It is to be hoped that Interpol will review their procedures in light of Mr Glendinning’s case. Clearly robust action is required to filter out any new applications for Red Notices that may offend against the Article 83 prohibited list as well as deleting those already on its database.