Archives for December 2018

Over the past several years, thanks to human rights advocates’ hard work and growing attention from the media, the general public has had the opportunity to learn more about how governments abuse INTERPOL to persecute political opponents and other victims of unlawful criminal prosecutions.  The discussion about INTERPOL’s internal mechanism, which provides individuals the opportunity to fight the abuse, and its shortcomings, has travelled beyond scholarly publications and entered the general news cycle.  INTERPOL, in turn, has carried out reforms to eliminate some of those shortcomings.  The organization has rightfully been praised for the improvements it has made and called upon to close remaining serious loopholes.  Yet these reforms have also limited the rights of victims of INTERPOL abuse, and it is what the victims have lost as a result of the reforms that hasn’t received wide attention.

Article 18 of INTERPOL’s Rules on the Processing of Data (RPD) proclaims: “Any person or entity shall be entitled to submit directly to the Commission for the Control of INTERPOL’s Files a request for access to, or correction and/or deletion of data processed in the INTERPOL Information System concerning that person or entity.  These rights of access to, or correction and deletion of data shall be guaranteed by the Commission for the Control of INTERPOL’s Files and be governed by separate rules.”[1]  The two sentences contradict each other.  The first guarantees the right to submit a request for access only, whereas the second points to an unconditional right of access.  The truth is that what INTERPOL has for a long time been loosely calling the “right of access” has never been an unconditional right.[2]

Under the Operating Rules of the Commission for the Control of INTERPOL’s Files, adopted in 2008, prior to providing an individual access to the information about her or him in INTERPOL’s databases, the Commission had to obtain consent from the government source of that information.[3]  The rule, however, permitted the Commission to provide access without the government’s consent if the individual possessed “sufficient evidence showing that he/she [knew] that there [was] information about him/her in INTERPOL’s files.”[4]  The latter provision made a difference.  It is hard to overstate how critical it is for an individual, who is fighting a request to locate and provisionally arrest her or him pending extradition (red notice or diffusion), to access the information the government submits to INTERPOL.  It is often impossible to prepare a comprehensive argument against an abusive red notice or diffusion without possessing all information recorded in INTERPOL’s files, and it is not uncommon for an individual fleeing persecution to be unaware of the full extent of the criminal prosecution, including all accusations on which the red notice or diffusion is based.[5]  The provision, however, was repealed in 2017 as part of the reforms following the adoption of the Statute of the Commission for the Control of INTERPOL’s Files and the Commission’s new Operating Rules.

INTERPOL’s regulations do not directly address a situation in which a red notice or diffusion is based on several offenses only some which have been proven to be politically motivated or defy the Universal Declaration of Human Rights.  The regulations, however, suggest how INTERPOL could approach such a situation, in which an individual successfully argued against all but one offence behind the red notice or diffusion.  Consider Article 83(1)(c) of the RPD: “[I]f the request includes several offences, the red notice may be published for all offences that meet INTERPOL’s Rules provided that at least one offence meets the above criteria.”  The “above criteria” refers to the minimum requirements a red notice must comply with: the offence behind a red notice must be a serious ordinary law crime, must not raise “controversial issues relating to behavioral or cultural norms,” “relate to family/private matters,” originate from a “violation of laws of an administrative nature” or “private disputes,” must satisfy the penalty threshold and be “of interest for the purposes of international police cooperation.”[6]  Would INTERPOL apply this rule by analogy and publish a red notice or diffusion if the individual proved that all but one accusation, of which he was not aware, were politically motivated or defied the Universal Declaration of Human Rights and thereby violated the INTERPOL Constitution?

There seems to be no clear answer to this question from INTERPOL.  Under the Commission’s Statute adopted as part of the recent reforms, a government must justify any restriction on the disclosure of information.[7]  However, “[t]he absence of justification alone will not lead to the disclosure of the content of the information but may be taken into consideration by the [Commission’s] Requests Chamber in assessing and deciding on a request.”[8]  At the same time, the RPD requires that to determine whether a red notice complies with Article 3 of its Constitution, which strictly prohibits INTERPOL from undertaking “any intervention or activities of a political, military, religious or racial character,”[9] the organization must examine “all relevant elements.”[10]  Therefore, both the Statute and the RPD can be interpreted as giving the Commission the power to assess all information related to a red notice, including accusations an individual has not had the opportunity to address.  However, even if the Commission adopted this approach, its assessment would often lack objectivity because it would not include the individual’s argument and evidence and would be limited to the government’s submissions and information in the public domain, if any.

By allowing individuals who possessed evidence of the existence of information about them in INTERPOL’s files access to that information without government authorization, the repealed rule guaranteed a fairer, closer to due process adjudication of their complaints.[11]  The rule also provided INTERPOL with more opportunities to maintain neutrality and thereby comply with its Constitution.[12]  By repealing the rule, INTERPOL harmed not only the victims of red notice and diffusion abuse but itself too.[13]

Governments known for their abuse of INTERPOL’s resources have wasted no time in taking advantage of the repeal of the rule.  They have used it to limit access to individuals who possess evidence that there is information about them in the organization’s databases by either agreeing to release only part of the information (partial disclosure), or by denying access altogether.  The Commission, in turn, has reportedly refused such individuals access without first obtaining consent from the respective governments, and explained this approach by citing the difference between the repealed rule, which explicitly empowered the Commission to disclose the information without consulting governments, and the new rules, which do not.

The repeal of the rule has negated much of the progress INTERPOL has made in protecting individuals from persecution, which the organization considers one of its “primary objectives.”[14]  INTERPOL should reinstate the rule without delay.  The organization should also change its approach towards individuals who do not possess evidence of the existence of information about them in its files.  In this regard, in light of its refugee policy, INTERPOL should provide refugees unconditional access to the information about them.[15]  Because INTERPOL must protect all individuals from persecution, not just refugees and individuals who possess evidence of the information recorded in its databases,[16] the organization should provide unconditional – without obtaining prior consent from a government – access to every other individual who can prove that there is a reason to believe that she or he may be a target of a politically motivated or otherwise unlawful prosecution which can be used as a basis for a red notice or diffusion.

Yuriy Nemets is the managing member at NEMETS, a law firm based in Washington, DC.  Yuriy is an attorney with over fifteen years of experience in domestic and international litigation and arbitration, international extradition, corporate, banking, transportation, international trade and investments, and intellectual property law.  He has authored publications about international extradition, corporate, banking, and intellectual property law.

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[1] INTERPOL’s Rules on the Processing of Data art. 18(1), (2), 2016, https://www.interpol.int/About-INTERPOL/Legal-materials [hereinafter RPD].

[2] See also Rules on the Control of Information and Access to INTERPOL’s Files art. 9(a), 11(a) II.E/RCIA/GA/2004(2009) (abrogated 2016).

[3] Operating Rules of the Commission for the Control of INTERPOL’s Files art. 14(1), II.E/RCCF/CCF/2008 (abrogated 2017).

[4] Id. art. 14(5).

[5] See Fair Trials, Dismantling the Tools of Oppression: Ending the Misuse of INTERPOL, 49 (Oct. 4, 2018), https://www.fairtrials.org/publication/dismantling-tools-oppression-1 (“Applicants need to have access to information about the data being held on INTERPOL’s databses, as well as the arguments being made, to justify the data.  Without such information, applications will inevitable be based on guess work, and individuals cannot be expected to make focused, succinct complaints to challenge the data.”).

[6] RPD, supra note 1, art 83(1)(a).

[7] Statute of the Commission for the Control of INTERPOL’s Files art. 35(4), 2016, https://www.interpol.int/About-INTERPOL/Commission-for-the-Control-of-Files-CCF [hereinafter Statute].

[8] Id.

[9] Constitution of the ICPO-INTERPOL, art. 3, June 13, 1956, http://www.interpol.int/About-INTERPOL/Legal-materials/The-Constitution.

[10] RPD, supra note 1, art 34(3).

[11] See also Fair Trials, supra note 5, at 20, 21.

[12] See also INTERPOL, Neutrality (Article 3 of the Constitution), https://www.interpol.int/About-INTERPOL/Legal-materials/Neutrality-Article-3-of-the-Constitution.

[13] In this regard, Fair Trials argues that the rule, which provided individuals who were aware of their INTERPOL status access to the information, has been repealed because the Commission’s Statute and its new Operating Rules contain “new broader presumptions of disclosure” and promote “improved transparency and the equality of arms” and that the repeal is “unlikely to create significant changes in practice given [Fair Trials’] experience that this provision did not, in fact, lead to disclosure in such cases.” Fair Trials, supra note 5, at 45, 50.  Regardless of the Commission’s unwillingness to comply with the now-repealed provision, the provision provided individuals aware of their INTERPOL status a clear basis to argue that they had the right of access independent of any government’s will.  By repealing the provision, INTERPOL has eliminated that right and, thereby, moved further away from the presumption of disclosure and towards the presumption of secrecy.  The latter, as Fair Trials has rightfully noted, “prevents even people who have good reasons to believe that they are subject to an INTERPOL alert from accessing the data.” Id. at 40.

[14] INTERPOL, supra note 12.

[15] Fair Trials, INTERPOL Text on Refugee Policy – Excerpts (last visited Dec. 11, 2018), https://www.fairtrials.org/wp-content/uploads/INTERPOL-TEXT-ON-REFUGEE-POLICY.pdf?platform=hootsuite; See also Fair Trials, supra note 5, at 56.

[16] INTERPOL, supra note 12.