Double jeopardy and Interpol red notices

Niall Hearty of Rahman Ravelli details a case where the double jeopardy rule was seen to override an Interpol red notice

The Court of Justice of the European Union (CJEY) has ruled that a German citizen cannot be extradited to the US on an Interpol red notice because of the principle of double jeopardy.

In the judgment earlier this month, the CJEU said that the individual – who was wanted in the US to face bribery allegations - became immune from extradition to the US when he had resolved the same allegations with prosecutors in Germany. This was because of the double jeopardy principle.

The CJEU ruling makes it clear that an individual that is sought on an Interpol red notice cannot be extradited from the EU or Schengen countries if allegations identical to those that gave rise to the notice have been settled in a member state. 

The Case

The individual in this case, a company manager known only as WS, was involved in a bribery scheme in Argentina to boost his company’s trading in that country. The allegations led to investigations by authorities in both Germany and the US. WS paid a fine to the Munich Public Prosecution Office as part of a settlement in 2009, according to the CJEU, and the German investigation was closed the following year.

By the time the CJEU ruled on the issue, however, it was arguably only a hypothetical situation. Interpol had deleted the red notice two years ago at the request of the US, according to the judgment. 

But the ruling ends nine years of uncertainty for WS that began when the US obtained an Interpol red notice against him in 2012 as it attempted to extradite him over the bribery allegations. According to the judgement, WS and the German Federal Criminal Police Office had argued against the notice on the grounds of double jeopardy in 2013 and had tried to convince US authorities to cancel the extradition request. In 2017, WS launched legal proceedings to try and cancel the red notice, using the double jeopardy argument, stating that the red notice breached EU law and claiming his right to freedom of movement was being threatened.

The Ruling 

The CJEU based its ruling on the Schengen Agreement and the EU’s Charter of Fundamental Rights. Both of these enshrine the principle of double jeopardy – that someone cannot be tried twice for the same crime – in EU law.

The CJEU stated that if double jeopardy is established in one Schengen country, then all other member states are bound by it. As a result, they cannot then arrest and extradite an individual on a red notice. 

A preliminary opinion handed down six months ago referred to a “protective umbrella” created by the Schengen area that enabled individuals to travel around the 26 countries in the bloc without the possibility of being prosecuted for matters that have already been resolved. But the court did state that European authorities are still able to provisionally arrest an individual on an Interpol red notice in order to stop them absconding, while they check to see if the principle of double jeopardy applies.