INTERPOL publishes first Silver Notice

In our previous article we wrote about INTERPOL's intention to launch a pilot scheme to implement Silver Notices and Diffusions. INTERPOL are now out of the blocks and have wasted no time in announcing publication of its first Notice under the pilot; a request by Italy to seek information on the assets belonging to a senior member of the mafia.

While the publication of the Notice is no doubt newsworthy, of more significance is the publication of the legal framework governing the Silver Notice/Diffusion pilot. INTERPOL have been slow to provide details of how Silver Notices/Diffusions will operate in practice but there is now some clarity at least on the minimum requirements for publication. It should be noted that the rules are specific only to the pilot and do not reflect any changes to INTERPOL's Constitution or the Rules on the Processing of Data ("RPD").

As well as being governed by the Constitution and Articles of the RPD relevant to information processing, provisions common to Notices, and Diffusions, the framework also confirms the rules governing the work of the Commission for the Control of INTERPOL's Files ("CCF") apply to Silver Notices/Diffusions in the same way as they do to all other Notices/Diffusions. 

Additionally, new specific rules governing the publication/circulation of Silver Notices/Diffusions have been introduced:

Article 1 clarifies Notices/Diffusions can be published/circulated to locate assets, identify assets, obtain information about assets and to monitor assets discretely and/or continuously. During the pilot phase, their purpose shall be limited to non-coercive measures (requesting and sharing information with a view to facilitating follow-up bilateral cooperation) and  requesting and sharing information will be for the purpose of criminal and/or civil forfeiture, post-conviction and/or non-conviction based forfeiture.

Article 2 sets out the minimum criteria and data required for publication. A Notice/Diffusion can only be published/circulated if it relates to a natural person subject to a criminal investigation relating to a serious crime punishable by a maximum deprivation of liberty of at least four years. Sufficient data must also be provided, including a summary of the facts comprising a succinct and clear description of the underlying criminal activities, an established link between the criminal activities and the person and/or assets derived from the offence(s), and the relationship between the assets and the criminal activity. There must also be reference to a valid judicial decision related to the natural person subject to the criminal investigation indicating that the assets are subject to criminal restraint and/or to non-conviction based restraint, and to the charge(s) and law(s) covering the offence.

Article 3 sets out the steps to be taken following the location of the asset(s). The country where the asset has been located shall inform the requesting NCB and the General Secretariat and provide information concerning the procedures the requesting country should take to pursue further actions. The requesting NCB shall act immediately once it has been located in another country and shall ensure swift transmission of data and supporting documents. The General Secretariat shall also provide assistance to the relevant NCBs by, inter alia, facilitating the transfer of documents.

While the publication of the above framework is welcomed, there is still potential for the Silver Notice/Diffusion scheme to be abused. Particularly as countries participating in the pilot include Brazil, China, Kazakhstan, Russia and the UAE, who are well-known for abusing the Red Notice system. There is every reason to believe that Silver Notices/Diffusions will be abused in the same way; fabricated criminal charges being initiated against a political dissident/rival, or wealthy businessperson who has fallen foul of a autocratic state, in order to seize assets located abroad.

Unfortunately, INTERPOL's assertion that the General Secretariat will review every Silver Notice and Diffusion for compliance with the relevant rules prior to publication/circulation provides little comfort. Despite a supposedly rigorous review by the Notices and Diffusions Task Force, abusive Red Notices still slip through the net.

While there is no doubt the scheme can provide a significant benefit in the fight against transnational crime and the movement of illicit assets, INTERPOL will need to ensure that the legal framework is implemented robustly to protect the integrity of the system.

Howard Kennedy's Business Crime & Regulatory team has considerable experience advising and assisting clients subject to INTERPOL Notices, including pre-emptive challenges to/the deletion of Notices, and dealing with any subsequent extradition/mutual legal assistance requests.