A single border check can turn into a provisional arrest. The officer's screen shows an INTERPOL alert, and from that moment the question is no longer abstract. What conduct is actually alleged? Does it amount to a crime in the country where you stand? And if it does not – what can be done about it?
Lack of dual criminality is one of the most technically precise grounds available in extradition defence and, where the facts support it, before INTERPOL's own supervisory body, the Commission for the Control of INTERPOL's Files (the CCF). The principle holds that a person should not be surrendered – or subjected to INTERPOL's machinery – for conduct that the requested state does not recognise as criminal. It sits at the intersection of INTERPOL's Constitution and the rules that govern extradition in every state where we practise. As of early 2026, it remains an actively litigated ground, and its application has become more, not less, relevant as requesting states push notice and diffusion use into commercially and politically contested territory.
This analysis sets out what the ground means in strict legal terms, when it genuinely applies, how it is built as an evidential argument before the CCF and in national proceedings, and where its limits lie.
What does lack of dual criminality actually mean?
Dual criminality requires that the conduct alleged against an individual constitutes a criminal offence under the law of both the requesting state and the requested state. If the conduct is criminal only in the requesting state – and not where the person is located – the ground for surrender, and for the INTERPOL measure underpinning it, becomes legally exposed.
The principle sounds simple. In practice, its application is anything but. The comparison is not between the label attached to the charge – "fraud", "embezzlement", "extremism" – but between the underlying conduct described in the extradition request or in the INTERPOL file. That distinction matters enormously. A requesting state may classify an entirely ordinary commercial dispute, a debt, a contractual disagreement, or an act of political dissent as a serious criminal offence. The requested state's courts and, independently, the CCF must ask whether the same facts, transposed to their own jurisdiction, would ground a criminal prosecution there.
In our extradition practice, we see this problem most acutely with offences that are either over-broad in the originating jurisdiction – criminalising conduct that is lawful elsewhere – or that carry ideologically charged labels with no recognisable equivalent in the courts of the requested state. The conduct test, not the label test, is the correct one, and holding the requesting state to that standard is the foundation of the ground.
How does dual criminality intersect with a Red Notice?
A Red Notice is a request to locate and provisionally detain a person with a view to extradition. It is not an arrest warrant. It is not a judicial decision. It does not establish guilt, and it does not oblige any country to arrest: each state decides under its own law. That characterisation is not a technicality. It is the lever the defence turns.
Where the underlying offence would fail a dual criminality test in a significant number of INTERPOL member states, the notice itself is open to challenge before the CCF on the data-quality and compliance grounds set out in the RPD – INTERPOL's Rules on the Processing of Data. The RPD's data-accuracy requirements demand that the information INTERPOL processes be accurate, relevant, and compliant with the rules governing the type of data in question. A notice predicated on conduct that is not criminal in any realistic receiving state sits awkwardly against those requirements.
The argument is not that the CCF applies dual criminality as a hard treaty rule – that is a matter for national courts. The argument is that a notice which cannot, as a matter of fact, lead to a lawful extradition in the majority of the states that would receive it raises a serious question about compliance with the RPD's processing conditions. That framing turns a national procedural defence into a data-quality argument the CCF can engage with directly.
INTERPOL's Constitution, at Article 2, requires INTERPOL's activities to respect human rights in the spirit of the Universal Declaration of Human Rights. Using the notice mechanism to expose a person to provisional detention for conduct that is lawful in the receiving state is difficult to square with that obligation. Article 3 bars INTERPOL from processing data linked to offences of a political, military, religious or racial character. Where the dual criminality gap is itself a product of political criminalisation – a jurisdiction that has legislated conduct criminal that is protected speech or assembly elsewhere – Articles 2 and 3 and the RPD's processing conditions can be argued together.
When does this ground genuinely apply?
Dual criminality as a live ground requires more than a superficial difference in the name of the offence. Three conditions tend to signal a real argument.
First, the conduct described in the underlying warrant or notice must, when stripped of its domestic label, be conduct that the requested state would not prosecute as a crime. Tax structuring that is lawful in the requested state; the publication of information that is protected speech there; the holding of a corporate position that carries criminal liability only under the originating jurisdiction's specific statutory scheme – these are examples of conduct where the gap is real.
Second, the dual criminality deficit must be visible from the existing documents. The INTERPOL file or the extradition request must describe the underlying facts with enough clarity to allow a systematic comparison. Where the request is deliberately vague about the conduct and relies on the legal label alone, that vagueness is itself a procedural argument – but it requires different handling than a clean dual criminality analysis.
Third, the ground is materially stronger where the requested state is not merely different in degree but different in kind: where the conduct is lawful, expressly protected, or immunised from prosecution. A minor jurisdictional difference in how fraud is defined is harder to argue than a case where the originating state has criminalised conduct that is constitutionally protected activity in the state of residence.
The ground is weaker – though not necessarily absent – where the conduct would be criminal in the requested state under a different charge, or where the same facts could be prosecuted under a different provision there. Courts and the CCF look at the substance of the conduct, and a skilled requesting state will frame the facts to maximise overlap. Identifying and countering that framing is part of the defence work.
How is the argument built before the CCF?
Evidence, not assertion. That principle governs every CCF file we build, and it applies with particular force to dual criminality.
The first step is a comparative legal analysis: a structured, written opinion that takes each element of the alleged offence in the requesting state and maps it against the elements required for an equivalent prosecution in the requested state or states where the subject is located. That analysis must be grounded in the criminal law of those jurisdictions. It must show the gap, not merely suggest it. And it must be provided by practitioners with standing in the relevant jurisdictions.
The second step is to place that analysis within the RPD's processing framework. The argument to the CCF is not "extradition would fail in state X" – that is a matter for state X's courts. The argument is that the data INTERPOL is processing does not meet the accuracy and compliance standards the RPD requires, because the factual basis for the notice cannot support the extradition purpose for which it was issued.
The third element is timing. A deletion request is, under the applicable rules, to be decided within nine months of the request being found admissible. An access request – to learn what data INTERPOL holds – is to be answered within four months. Before building a CCF file, a practitioner should know exactly what is in the INTERPOL system. That means filing the access request first, before the deletion request, so the file is built on verified information rather than assumption.
Where a person is also subject to extradition proceedings in a national court, the sequencing between the CCF file and the national proceedings requires careful thought. A CCF deletion does not bind a national court; a national court refusal on dual criminality grounds is strong evidence for a subsequent CCF review. The two tracks interact, and the order in which they are run affects the strength of the overall position.
We assess grounds honestly before we take a matter on. Where the dual criminality gap is real and evidentiable, the CCF file and the national extradition defence can be built to advance it. Where the gap is narrow or the conduct substantially overlaps, we say so at the outset.
The steps above are the general picture. Your situation turns on the specific file, the requesting state, and the timing – which is exactly what a first assessment looks at.
If you have just discovered a notice or alert, or if a border check has already occurred, contact us at info@northlarkfirm.com for a confidential assessment of whether dual criminality, or any other ground, applies in your case.
What is the relationship between dual criminality and political-motive grounds?
Dual criminality and the Article 3 political-motive ground often arise from the same underlying facts. They are, however, distinct arguments, and conflating them weakens both.
Article 3 of INTERPOL's Constitution provides that INTERPOL is strictly forbidden from undertaking any intervention or activities of a political, military, religious or racial character. A notice grounded in the persecution of an opposition figure, a journalist, or a minority is a direct Article 3 case. Dual criminality may or may not be present as a separate argument.
The two grounds become closely related when a requesting state has enacted legislation specifically to criminalise conduct – expression, assembly, religious observance, or commercial activity with political implications – that is lawful elsewhere. In those cases, the dual criminality deficit is a symptom and the Article 3 problem is the diagnosis. Building both arguments together, with the same underlying evidence, produces a stronger file than arguing either in isolation.
Article 2, requiring respect for human rights in the spirit of the Universal Declaration, adds a further layer. A person provisionally detained in a transit state, on the basis of conduct that is entirely lawful there, suffers a restriction of liberty for which there is no proportionate legal basis. That disproportionality is an Article 2 argument, and it reinforces the dual criminality analysis without replacing it.
In our practice, the most durable CCF files are those where the grounds are layered: data-quality and RPD compliance at the base, with Articles 2 and 3 of the Constitution providing the human-rights structure above. Dual criminality, when it applies, fits naturally into that structure as part of the data-quality case.
How do national courts and the CCF approach the same ground differently?
National courts applying extradition law in the requested state operate under a treaty framework – a bilateral extradition treaty or a multilateral instrument – and under the domestic extradition statute. Dual criminality in that setting is usually a threshold question: does the extradition request satisfy the requirement that the alleged conduct be criminal in both states? If it does not, surrender is refused, and the matter ends there for that jurisdiction.
The CCF operates under a completely different instrument and with a different mandate. It does not apply extradition treaties. It applies INTERPOL's own rules: the Constitution and the RPD. Its task is to determine whether the data INTERPOL is processing about an individual complies with those rules. There is no appeal against a CCF decision; a fresh request requires new elements. That makes the quality of the first file the central determinant of the outcome.
What this means in practice is that a national court refusal on dual criminality grounds – while not formally binding on the CCF – is powerful new evidence for a CCF review. If the requesting state's extradition request has been refused by the courts of a state that found dual criminality lacking, that judicial determination can be placed before the CCF as evidence that the notice cannot achieve its stated extradition purpose. It does not guarantee deletion, but it materially strengthens the RPD compliance argument.
Equally, a CCF deletion does not preclude a subsequent extradition request if the requesting state reissues proceedings with corrected or reframed conduct. The connection between the two tracks is important to understand, and it is one of the areas where practitioners before both fora need to work together closely.
What are the realistic limits of this ground?
Dual criminality is a strong ground when the conditions are met. It is not a universal solution, and its limits deserve honest treatment.
The ground does not apply where the conduct would be criminal in the requested state under a different characterisation. Courts are reluctant to accept a dual criminality argument where the substance of the conduct – the acts, not the label – would ground a domestic prosecution for something else. A requesting state that frames financial conduct as "embezzlement" when the requested state would call it "theft" has not created a dual criminality gap. Only where the conduct itself falls outside the criminal law of the requested state does the argument hold.
The ground also carries less weight before the CCF when the INTERPOL file is thin on factual description. Where the notice recites only a legal label and a statutory reference, with no underlying description of the conduct, the comparative analysis cannot be performed with precision. The defence then has to argue that the very absence of factual particularity is itself a data-quality defect – a related but different argument.
A further limit: the CCF reviews data, not treaties. Where dual criminality would plainly succeed in extradition proceedings but the CCF has decided that the RPD compliance question is less clear, the two outcomes can diverge. This is not a defect in either system. It reflects the fact that they operate under different rules and with different mandates.
Finally, a structural point that is easily overlooked. Formally, a person may apply to the CCF without a lawyer. The outcome depends heavily on the quality of the legal argument. A weak first file not only produces a refusal; it narrows the prospects of any subsequent review, because there is no appeal and a fresh request requires genuinely new elements. That is the single strongest argument for investing in the first file rather than testing the water with an underpowered submission.
If a first CCF request or an earlier extradition defence produced a refusal, a second reading can identify what was missed and whether there are new grounds. There is no appeal, so a review must be built carefully, with evidence that is genuinely new and a legal argument that is structurally different from the first.
To discuss whether the dual criminality ground applies in your situation, or to understand the realistic prospects before you act, reach us through our secure channel or write to info@northlarkfirm.com.
A note on diffusions
Dual criminality is most often raised in the context of a Red Notice, because the notice is the most visible INTERPOL measure. The same analysis applies, with appropriate adjustment, to diffusions.
A diffusion is an alert circulated directly by a national bureau, outside the formal notice system. It can also be challenged before the CCF. Where a diffusion is issued for conduct that lacks dual criminality in the receiving states, the RPD's data-quality requirements apply to that data in the same way as they apply to a notice. The CCF has jurisdiction over diffusions, and the grounds available – including data accuracy and RPD compliance – are the same.
In practice, diffusions are sometimes harder to identify than Red Notices, because they are not listed in INTERPOL's public-facing database. An access request to the CCF is the only reliable way to determine whether a diffusion is circulating. Where the dual criminality argument is available, it should be advanced on both measures simultaneously if both are in place.
Related
- Red Notice removal – challenge and deletion of notices before the CCF
- Extradition defence – resisting surrender in national proceedings, worldwide
- Pre-emptive CCF request – access request before a notice is issued or a border crossed
Frequently asked questions
When does this ground actually apply?
The ground applies when the conduct described in the extradition request or INTERPOL file – not the label attached to it – would not constitute a criminal offence under the law of the requested or receiving state. The comparison is conduct-based, not charge-based. It is strongest where the gap is structural: the conduct is expressly lawful, protected, or entirely outside the criminal law of the relevant state, rather than merely charged under a different provision.
What evidence supports it before the CCF?
The CCF will expect a structured comparative legal analysis mapping each element of the alleged offence against the equivalent requirements in the receiving state's criminal law. That analysis must be grounded in verified, jurisdiction-specific legal opinion, not general assertion. It should be coupled with an argument under the RPD's data-accuracy requirements: the notice cannot comply with those requirements if the conduct it describes cannot, as a matter of law, ground a lawful extradition.
How strong is this ground on its own?
It depends on how clearly the gap can be shown. Where the conduct is plainly lawful in the received state, dual criminality alone can support a deletion request. In practice, the strongest files layer the ground with others: the RPD's data-quality conditions, and, where the facts allow, Articles 2 and 3 of INTERPOL's Constitution. A single ground argued in isolation carries more risk than a well-evidenced, multi-ground submission – particularly given that there is no appeal against a CCF decision.
About NORTHLARK
NORTHLARK is an independent international boutique acting for individuals subject to INTERPOL Red Notices, diffusions and extradition proceedings. We work before the CCF and with allied counsel in the countries of detention, and we operate entirely independently of any national firm or network. We act only on lawful mandates. We do not help anyone evade legitimate justice, and we take on a matter only where we see genuine grounds.
The first assessment is confidential. Our enquiry form does not require your real name, and you can reach us through a secure channel – Signal, Telegram or WhatsApp. For a confidential discussion of whether lack of dual criminality, or any other ground, applies in your situation, write to info@northlarkfirm.com.
Facing an unjustified Red Notice?
Free initial assessment. Challenging Interpol Red Notices and extradition defence.
Request an assessment