Morais Leitão, Galvão Teles, Soares da Silva & Associados | View firm profile
On the 10th of January, the International Criminal Police Organisation (Interpol) announced the first publication of a Silver Notice, and, in the meantime, released its legal framework. The Silver Notice aims to locate and recover assets of illicit origin as a way of strengthening international police cooperation, in order to combat transnational organised crime.
The purpose of this Legal Alert is to clarify the contours of this new Interpol legal mechanism.
I. What is the Silver Notice?
The Silver Notice is the latest addition to Interpol’s wide range of international cooperation mechanisms, which allow police in Interpol member States to request and share critical information. Interpol organizes these notices by a color code.
The Silver Notice was introduced as part of Interpol’s strategy to combat money laundering and financial flows from illicit sources. This new notice is currently the subject of a pilot project involving 52 states and territories, including Portugal, which will run until at least November 2025.
II. Main purpose
The new Silver Notice aims, among other things, to help anti-corruption units, financial institutions and national criminal justice systems recover illicit funds and/or discover the identity of agents involved in economic and financial crimes. Through the Silver Notice, Interpol member States will be able to request information about a particular person’s assets linked to criminal activities.
The Silver Notice facilitates the location, identification, and gathering of information on assets, including property, vehicles, financial accounts and businesses. States can subsequently use this information as a basis for bilateral engagements, including the seizure, confiscation, or recovery of these assets, in accordance with national legislation.
III. Legal regime
Interpol recently made public the legal framework governing the Silver Notice pilot project:
a) Applicable standards
The first part sets out the general legal framework applicable:
• Articles 2 and 3 of the Interpol’s Constitution;
• Articles 10 to 18, 73 to 81 and 97 to 100 of the Interpol’s Data Processing Rules;
• All the rules governing the work of the Interpol File Control Commission also apply, in particular, the aforementioned Constitution and the CCF Statutes.
b) Special rules
The second part of the Silver Notice legal regime lays down specific rules for its diffusion during the pilot project.
Article 1 indicates the objectives of the Silver Notices, which may be published at the request of a National Central Bureau (NCB) for the following purposes: to locate assets, to identify them, to obtain information about assets or to monitor them discreetly and/or continuously. Requests and the sharing of information serve the purpose of criminal or civil confiscation of the assets, which may be carried out on a basis of post-conviction or non-conviction-based forfeiture. However, during the pilot phase, the Silver Notice should only be used for non-coercive measures, such as requesting and sharing information, in order to facilitate bilateral cooperation.
Article 2 sets out the specific conditions for the publication and circulation of Silver Notices:
• Firstly, there are cumulative minimum criteria that must be met for one of these notices to be issued: (i) it must relate to a natural person who is subject to a criminal investigation; (ii) it can only be published in relation to serious crimes punishable by deprivation of liberty of at least four years, in accordance with Article 2(b) of the United Nations Convention against Transnational Organised Crime;
• Secondly, there is a set of minimum data essential for the Silver Notice to be issued: (i) on the one hand, it requires data identifying the person, such as first name, surname, sex, date of birth, and a physical description or good quality photograph; (ii) on the other hand, it requires judicial data relating to the ongoing criminal investigation, such as a summary of the facts of the case, a valid judicial reference relating to a natural person who is subject to criminal investigation that indicates that person’s assets, the charge, and the law covering the offense;
• Finally, Interpol clarifies that Silver Notice extracts will not be published on the organisation’s public website.
Finally, Article 3 clarifies the measures to be taken once the assets have been located. The State where the asset is located must inform the requesting NCB and the General Secretariat and must provide information on the procedures that the requesting State must adopt. The requesting NCB then ensures the rapid transmission of the data and documents requested by the State where the asset has been located. Subsequently, the General Secretariat provides due assistance to the competent NCB, in particular by facilitating the transfer of documents related to the decision to monitor, retain or confiscate the assets, in accordance with national rules or applicable international treaties.
Tiago da Costa Andrade
Edgar da Silva Palma
Mário Sousa Ribeiro
This publication is purely informational and is not meant to be a source of legal advice, nor does it contain a comprehensive review of all aspects of the law and practice referred to. The information contained herein refers to the date of first publication, readers being warned to take legal advice before applying it to specific issues or transactions. The contents of this publication may not be copied, disclosed or distributed in whole or in part without prior consent. For more information please contact us at [email protected].