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In 2012, Interpol published a red notice in respect of a German national (the “claimant”) at the request and on the basis of an arrest warrant issued by the United States of America concerning, inter alia, corruption allegations against him, with a view to potentially extraditing him to the US.
Prior to the issuance of the red notice by Interpol, the public prosecutor’s office in Munich, Germany, had initiated a criminal investigation proceeding against the claimant which concerned the same alleged criminal acts as the ones covered by the red notice.
The criminal investigation proceedings were discontinued in 2010 after the claimant paid an amount of money. Subsequently the German Federal Criminal Police Office (Bundeskriminalamt) informed Interpol that they considered the ne bis in idem rule to be applicable with respect to the acts which were subject to the red notice. The ne bis in idem rule, which is embedded in Article 54 of the Convention implementing the Schengen Agreement (“CISA”) as well as in Article 50 of the Charter of Fundamental Rights of the European Union (“Charter”), guarantees that a person cannot be prosecuted twice for the same offence.
Some years later, in 2017, the claimant initiated court proceedings before the Administrative Court in Wiesbaden (the “referring court”), against the Federal Republic of Germany, in essence asking the referring court to order that Germany should take all measures necessary to arrange for the red notice to be withdrawn. The claimant argued that due to the red notice still being in place, his ability to travel without running the risk of being arrested would be hindered. This would not only violate Article 54 CISG but also Article 21 of the Treaty on the Functioning of the European Union (“TFEU”) guaranteeing the freedom of movement of EU citizens.
The referring court stayed the proceedings and sought clarification from the Court by way of a preliminary ruling on the consequences flowing from the ne bis in idem principle within the Schengen area with respect to acts for which a red notice has been issued by Interpol at the request of a third state. In essence, the referring court asked whether EU Members States are prohibited from implementing a red notice, (and thereby restricting an individual’s freedom of movement) in circumstances where the Member State has informed Interpol that the red notice concerns an act to which the ne bis in idem principle applies. Furthermore, the referring court sought guidance as to whether Member States are authorised to further process personal data relating to the requested person which is contained in the red notice when, again, the ne bis in idem rule applies.
The Court found that the prohibition of double jeopardy was, in principle, applicable if the investigation proceedings had been discontinued upon conditions (judgment of 12 May 2021, C-505/19, WS v Bundesrepublik Deutschland). Whether Article 54 CISG would prevent the provisional arrest of a person wanted by Interpol, however, would depend on whether that person could be regarded as "prosecuted" within the meaning of Article 54 CISG.
In cases where it was questionable whether the ne bis in idem rule applied, a provisional arrest may be an “essential step” to allow the authorities involved to clarify this question and, at the same time, avoid the risk that the person concerned may abscond. In such cases, both Article 54 CISG and the freedom of movement in Article 21 TFEU, read in the light of Article 50 of the Charter, would not prevent a provisional arrest.
If, however, it was clear that a final judicial decision had been taken which would establish the application of the ne bis in idem principle with respect to the acts covered by the red notice, Article 54 CISA and Article 21 TFEU would prevent the authorities from provisionally arresting the individual concerned.
In order to ensure the effectiveness of these provisions in such cases, the Court held that the Member States and the Contracting States need to ensure that legal remedies are available which allow individuals concerned to seek judicial determination as regards the application of the ne bis in idem principle.
Furthermore, the Court held that any operation by the Member States of personal data contained in a red notice, such as storage of the data in databases that included lists of wanted persons, constitutes a “processing” covered by Directive 2016/680. However, this processing may, in principle, be necessary, in particular since it might be indispensable in order to determine whether the ne bis in idem principle applies. Having said that, the Court made it clear that where it has been established by a final judicial decision that the ne bis in idem principle applies in respect of the acts on which a red notice is based, the person concerned must have the right to request deletion of the data. If that does not happen, there must be a note accompanying the data which sets out that that individual may no longer be prosecuted.
The decision strengthens the protection of individuals in cases where a red notice has been issued but the criminal investigation proceedings in relation to the acts covered by the red notice have been discontinued.
However, since the Court acknowledged that a provisional arrest might be indispensable in cases where it needs to be clarified whether the ne bis in idem principle actually applies, individuals are still at risk, particularly when the red notice from Interpol only vaguely describes the acts at issue.
9 June 2021
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