Over the past several years, thanks to human rights advocates\u2019 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.\u00a0 The discussion about INTERPOL\u2019s 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.\u00a0 INTERPOL, in turn, has carried out reforms to eliminate some of those shortcomings.\u00a0 The organization has rightfully been praised for the improvements it has made and called upon to close remaining serious loopholes.\u00a0 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\u2019t received wide attention.<\/p>\n
Article 18 of INTERPOL\u2019s Rules on the Processing of Data (RPD) proclaims: \u201cAny person or entity shall be entitled to submit directly to the Commission for the Control of INTERPOL\u2019s Files a request for access to, or correction and\/or deletion of data processed in the INTERPOL Information System concerning that person or entity.\u00a0 These rights of access to, or correction and deletion of data shall be guaranteed by the Commission for the Control of INTERPOL\u2019s Files and be governed by separate rules.\u201d[1]<\/a>\u00a0 The two sentences contradict each other. \u00a0The first guarantees the right to submit a request for access only, whereas the second points to an unconditional right of access. \u00a0The truth is that what INTERPOL has for a long time been loosely calling the \u201cright of access\u201d has never been an unconditional right.[2]<\/a><\/p>\n Under the Operating Rules of the Commission for the Control of INTERPOL\u2019s Files, adopted in 2008, prior to providing an individual access to the information about her or him in INTERPOL\u2019s databases, the Commission had to obtain consent from the government source of that information.[3]<\/a>\u00a0 The rule, however, permitted the Commission to provide access without the government\u2019s consent if the individual possessed \u201csufficient evidence showing that he\/she [knew] that there [was] information about him\/her in INTERPOL\u2019s files.\u201d[4]<\/a>\u00a0 The latter provision made a difference.\u00a0 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.\u00a0 It is often impossible to prepare a comprehensive argument against an abusive red notice or diffusion without possessing all information recorded in INTERPOL\u2019s 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]<\/a>\u00a0 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\u2019s Files and the Commission\u2019s new Operating Rules.<\/p>\n INTERPOL\u2019s 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.\u00a0 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.\u00a0 Consider Article 83(1)(c) of the RPD: \u201c[I]f the request includes several offences, the red notice may be published for all offences that meet INTERPOL\u2019s Rules provided that at least one offence meets the above criteria.\u201d\u00a0 The \u201cabove criteria\u201d 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 \u201ccontroversial issues relating to behavioral or cultural norms,\u201d \u201crelate to family\/private matters,\u201d originate from a \u201cviolation of laws of an administrative nature\u201d or \u201cprivate disputes,\u201d must satisfy the penalty threshold and be \u201cof interest for the purposes of international police cooperation.\u201d[6]<\/a> \u00a0Would 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?<\/p>\n There seems to be no clear answer to this question from INTERPOL.\u00a0 Under the Commission\u2019s Statute adopted as part of the recent reforms, a government must justify any restriction on the disclosure of information.[7]<\/a>\u00a0 However, \u201c[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\u2019s] Requests Chamber in assessing and deciding on a request.\u201d[8]<\/a>\u00a0 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 \u201cany intervention or activities of a political, military, religious or racial character,\u201d[9]<\/a> the organization must examine \u201call relevant elements.\u201d[10]<\/a>\u00a0 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.\u00a0 However, even if the Commission adopted this approach, its assessment would often lack objectivity because it would not include the individual\u2019s argument and evidence and would be limited to the government\u2019s submissions and information in the public domain, if any.<\/p>\n By allowing individuals who possessed evidence of the existence of information about them in INTERPOL\u2019s files access to that information without government authorization, the repealed rule guaranteed a fairer, closer to due process adjudication of their complaints.[11]<\/a>\u00a0 The rule also provided INTERPOL with more opportunities to maintain neutrality and thereby comply with its Constitution.[12]<\/a>\u00a0 By repealing the rule, INTERPOL harmed not only the victims of red notice and diffusion abuse but itself too.[13]<\/a><\/p>\n Governments known for their abuse of INTERPOL\u2019s resources have wasted no time in taking advantage of the repeal of the rule.\u00a0 They have used it to limit access to individuals who possess evidence that there is information about them in the organization\u2019s databases by either agreeing to release only part of the information (partial disclosure), or by denying access altogether.\u00a0 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.<\/p>\n 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 \u201cprimary objectives.\u201d[14]<\/a> \u00a0INTERPOL should reinstate the rule without delay.\u00a0 The organization should also change its approach towards individuals who do not possess evidence of the existence of information about them in its files.\u00a0 In this regard, in light of its refugee policy, INTERPOL should provide refugees unconditional access to the information about them.[15]<\/a>\u00a0 Because INTERPOL must protect all individuals from persecution, not just refugees and individuals who possess evidence of the information recorded in its databases,[16]<\/a> the organization should provide unconditional \u2013 without obtaining prior consent from a government \u2013 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.<\/p>\n Yuriy Nemets<\/strong>\u00a0is the managing member at NEMETS, a law firm based in Washington, DC.\u00a0 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.\u00a0 He has authored publications about international extradition, corporate, banking, and intellectual property law.<\/em><\/p>\n —<\/p>\n [1]<\/a> INTERPOL’s Rules on the Processing of Data art. 18(1), (2), 2016, https:\/\/www.interpol.int\/About-INTERPOL\/Legal-materials [hereinafter RPD<\/em>].<\/p>\n [2]<\/a> See also<\/em> Rules on the Control of Information and Access to INTERPOL\u2019s Files art. 9(a), 11(a) II.E\/RCIA\/GA\/2004(2009) (abrogated 2016).<\/p>\n [3]<\/a> Operating Rules of the Commission for the Control of INTERPOL\u2019s Files art. 14(1), II.E\/RCCF\/CCF\/2008 (abrogated 2017).<\/p>\n [4]<\/a> Id<\/em>. art. 14(5).<\/p>\n [5]<\/a> See<\/em> Fair Trials, Dismantling the Tools of Oppression: Ending the Misuse of INTERPOL<\/em>, 49 (Oct. 4, 2018), https:\/\/www.fairtrials.org\/publication\/dismantling-tools-oppression-1 (\u201cApplicants need to have access to information about the data being held on INTERPOL\u2019s databses, as well as the arguments being made, to justify the data.\u00a0 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.\u201d).<\/p>\n [6]<\/a> RPD, supra<\/em> note 1, art 83(1)(a).<\/p>\n [7]<\/a> Statute of the Commission for the Control of INTERPOL\u2019s Files art. 35(4), 2016, https:\/\/www.interpol.int\/About-INTERPOL\/Commission-for-the-Control-of-Files-CCF [hereinafter Statute<\/em>].<\/p>\n [8]<\/a> Id<\/em>.<\/p>\n [9]<\/a> Constitution of the ICPO-INTERPOL, art. 3, June 13, 1956, http:\/\/www.interpol.int\/About-INTERPOL\/Legal-materials\/The-Constitution.<\/p>\n [10]<\/a> RPD, supra<\/em> note 1, art 34(3).<\/p>\n [11]<\/a> See also<\/em> Fair Trials, supra<\/em> note 5, at 20, 21.<\/p>\n [12]<\/a> See also <\/em>INTERPOL, Neutrality (Article 3 of the Constitution)<\/em>, https:\/\/www.interpol.int\/About-INTERPOL\/Legal-materials\/Neutrality-Article-3-of-the-Constitution.<\/p>\n [13]<\/a> 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\u2019s Statute and its new Operating Rules contain \u201cnew broader presumptions of disclosure\u201d and promote \u201cimproved transparency and the equality of arms\u201d and that the repeal is \u201cunlikely to create significant changes in practice given [Fair Trials\u2019] experience that this provision did not, in fact, lead to disclosure in such cases.\u201d Fair Trials, supra<\/em> note 5, at 45, 50.\u00a0 Regardless of the Commission\u2019s 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\u2019s will.\u00a0 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.\u00a0 The latter, as Fair Trials has rightfully noted, \u201cprevents even people who have good reasons to believe that they are subject to an INTERPOL alert from accessing the data.\u201d Id<\/em>. at 40.<\/p>\n [14]<\/a> INTERPOL, supra<\/em> note 12.<\/p>\n