On November 19, NEMETS hosted the eighth of its webinar series ‘Open Conversations About INTERPOL Abuse.’ The panelists discussed INTERPOL’s recent case law. You can watch the recording here. Don’t forget to subscribe to our YouTube channel!
In one of its recently published decision excerpts, the Commission for the Control of INTERPOL’s Files considers a complaint filed by a business executive accused of fraud. In this case, the Commission ruled that the Red Notice at the center of the complaint must be deleted from INTERPOL’s files because it violated Article 83(2)(b)(i) of INTERPOL’s Rules on the Processing of Data (RPD). Under Article 83(2)(b)(i) of the RPD, a Red Notice must include a “summary of facts of the case which shall provide a succinct and clear description of the criminal activities of the wanted person, including the time and location of the alleged criminal activity.” In its rulings over the years, the Commission has interpreted these provisions to mean that a country-source of data must produce information that is “concrete and specific in the sense that it must clearly identify the role of the [individual], her specific criminal actions, the time and the means to commit the infraction,” that such information “should be precise, detailed and demonstrate, when relevant, a benefit or the intention to commit the offence.”
In this case, the Commission reasoned that the criminal charge on which the Red Notice was based, “falsely issuing exclusive value-added tax invoices,” was “defined under the relevant criminal law provisions submitted by the NCB . . ., but could be considered to be an offence of an administrative or civil nature rather than of a criminal nature.” In this regard, the Commission requested that the country-source of data “provide additional elements which would highlight the possible effective participation of the [individual] to a serious ordinary-law crime.” The Commission asked the country-source of data “specific questions, including whether the individual personally benefited from the fraud, or how the sums of [xxx] million of price tax, [Company 1] earnings of [xxx] million of commission charges, and [Company 2] illegal deductions of [xxx] millions of taxes were calculated and arrived at” (emphasis added). The Commission received “no specific answer from [the country-source of data] on these issues” and concluded that the “information available [could not] be considered as sufficient to demonstrate any criminal act, criminal intent, or personal benefit, and consequently d[id] not satisfy the requirements of Article 83 of the RPD which call for a clear description of the criminal activities of the wanted person.”
This case is extremely important because in it the Commission has demonstrated its willingness to consider evidence that often requires specialized knowledge. Evidence in tax evasion and other financial crime matters is often highly complicated and requires expertise in national finance and tax laws as well as in accounting. It remains unclear how far the Commission is prepared to go in its consideration of such information. It is fair to assume that the extent of the Commission’s study depends on the circumstances of a particular case and on the Commission’s limited resources. Nevertheless, the Commission’s willingness to consider evidence on which the accusations of tax evasion and other financial crimes is often based gives hope to the victims of INTERPOL abuse falsely accused of such crimes.
In one of its recently published decision excerpts, the Commission for the Control of INTERPOL’s Files considered whether a government request targeting an individual-subject to parallel criminal prosecutions violates INTERPOL’s rules. The case at issue concerned an individual wanted for criminal prosecution by two countries, the country-source of data recorded in INTERPOL’s files and the country of his nationality, based on the same “facts and charges.” The individual was detained in a third country at the request of the country-source of data. However, the country where the individual was detained received an extradition request from the country of the individual’s nationality as well. He was eventually extradited to the latter.
In his complaint, the individual argued that the diffusion violated the requirement that the processing of data may only be carried out for a “given, explicit purpose which is in conformity with the Organization’s aims and activities” (Articles 10 and 97 of INTERPOL’s Rules on the Processing of Data (RPD)) and the principle of ne bis in idem (Article 2 of the INTERPOL Constitution). Not only did the county-source of data and the country of the individual’s nationality ignore each other’s requests for the transfer of criminal proceedings but they failed to respect each other’s requests to share the results of their respective investigations as well. This lack of cooperation eventually resulted in the country of the individual’s nationality dismissing the charges for lack of evidence.
The Commission has ruled that the “purpose of the Diffusion remains valid, and the existence of the parallel proceedings in [the country of the individual’s nationality] for the same facts and charges raise neither concern for a breach of the non bis in idem principle nor for a lack of interest for the purposes of international police cooperation.” The Commission has concluded that the diffusion does not lack a valid purpose, reasoning that the country-source of data has fulfilled its obligation to request the individual’s arrest and extradition and has taken active steps toward achieving this purpose. The Commission has also disagreed with the argument that the country-source of data has failed to fulfill the purpose of its diffusion when it denied the other country’s request to transfer the proceedings. In this regard, the Commission “emphasize[d] that there is no obligation under INTERPOL’s rules for the [country-source of data’s] authorities to forgo their sovereign right to prosecute [the individual] under the territorial principle of jurisdiction, in favor of a transfer of proceedings to another country.” In disagreeing with the claim that the diffusion violates the principle of ne bis in idem, the Commission has reasoned that the parallel criminal prosecutions are based on the “established principles of territorial and national jurisdiction,” neither country has agreed to transfer the proceedings, and, therefore, the principle of ne bis in idem does not apply in this case.
In its decision, the Commission also considers whether conflicting extradition requests violate Article 35 of the RPD which requires that “data are of interest for the purposes of international police cooperation.” In this case, the Commission has concluded that “an INTERPOL member country’s response to conflicting extradition requests does not have a substantial impact on the interest of the data under Article 35 of the RPD, in particular because there are no elements in [this] case to suggest that [the individual’s] extradition to the country-source of data, if located and arrested in another country, would be improbable.” Nevertheless, the Commission has indicated that parallel proceedings should not be entirely ignored for the purposes of international police cooperation and ruled to inform the Organization’s member countries of the existence of these parallel proceedings in a caveat to the government request recorded in INTERPOL’s files, leaving it to the member countries’ discretion whether to take this information into consideration during international police cooperation.
On July 22, 2024, Yuriy Nemets will speak at the American Bar Association event ‘Latest Developments in INTERPOL’s Fight Against Transnational Repression.’ The panel will discuss the latest developments in INTERPOL’s efforts aimed at curbing transnational repression and abuse of its systems. The panelists will review the latest developments in INTERPOL’s application of its rules aimed at protecting the rights of victims of abuse by INTERPOL member states, recent INTERPOL “case law” and other relevant disclosures (e.g. preemptive requests, presumption of innocence, child custody), the challenges that INTERPOL faces in its attempts to convince member countries to cooperate in the Organization’s fight against the abuse of its resources, the upcoming elections of the INTERPOL Secretary General, one of the most significant posts which plays a key role in addressing government abuse of the Organization’s channels, and the democratic countries’ attempts to avoid involvement in INTERPOL abuse committed by autocracies.
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In late 2014 – early 2015, INTERPOL introduced its refugee-asylum-seeker policy according to which “in general, the processing of Red Notices and diffusions against refugees will not be allowed if the following conditions are met: the status of a refugee or asylum-seeker has been confirmed, the notice/diffusion has been requested by the country where the individual fears persecution, and the granting of the refugee status is not based on political grounds vis-à-vis the requesting country.” Since its adoption, the policy has become a true lifeline for many individuals targeted by abusive government requests disseminated via INTERPOL’s channels. It is arguably the most straightforward way to fight an abusive Red Notice or diffusion.
The Commission for the Control of INTERPOL’s Files has very rarely publicly opined on its application of the refugee-asylum-seeker policy. Until recently, the Commission’s decision not to grant the relief provided by the policy to individuals who challenge government requests after they become the nationals of countries that have granted them asylum has been the most notable development. In my opinion, this decision to limit the application of the policy is wrong. This issue, however, deserves special attention, and I will give my reasoning in another publication. Today, I want to discuss the Commission’s recent disclosure in which it signals its willingness to protect refugees and asylum-seekers from INTERPOL abuse even when the refugee-asylum-seeker policy does not apply.
In the disclosure, the Commission describes a case of an individual targeted by a Red Notice which also involves three different countries: (1) the country-source of data (the Red Notice), (2) the country of the individual’s nationality, and (3) the country that has granted him refugee status because of persecution in the country of his nationality and refused to extradite him to the country-source of data, citing possible violations of his fundamental rights by the latter if he is extradited. In this regard, it is important to remember that under the second prong of the INTERPOL refugee-asylum-seeker policy, it applies to “notice[s]/diffusion[s] requested by the country where the individual fears persecution” (emphasis added). Because the country of the individual’s nationality, whose conduct became the reason for the decision to grant the individual refugee status, was not the source of data in this case, the Commission refused to apply the policy and delete the Red Notice on this basis. At the same time, the Commission did not ignore the individual’s refugee status either.
Following its consideration of all available evidence, the Commission, taking into consideration the totality of circumstances, ruled in the individual’s favor, citing, among other reasons, his refugee status. In this regard, the Commission reasoned that although the INTERPOL refugee-asylum-seeker policy did not apply stricto sensu in this case, the fact that the individual was granted asylum could still serve as evidence, an “aggravating factor,” as the Commission put it, that INTERPOL’s involvement in the case may lead to a violation of Article 2 of the INTERPOL Constitution.
On December 7, 2023, NEMETS PLLC will host the sixth of its webinar series Open Conversations About INTERPOL Abuse. This webinar will focus on the results of the 91st INTERPOL General Assembly. Join us live on YouTube, Twitter (X) or Facebook!
This post is based on the article authored by Yuriy Nemets INTERPOL’s Power to Act Preemptively in Fighting Government Abuse, International Enforcement Law Reporter Vol. 35, Issue 5 (May 2019). See also Yuriy Nemets, INTERPOL’s Power to Prevent Diffusion Abuse: Legal, Political and Technological Considerations, International Enforcement Law Reporter Vol. 35, Issue 7 (July 2019)
In its 2017 annual report, the Commission for the Control of INTERPOL’s Files (CCF) confirmed that INTERPOL did not have a comprehensive mechanism that would allow it to monitor incoming diffusions and other government requests, and that indeed some governments had succeeded in disseminating diffusions against the same individuals whom CCF had already found to be victims of their Red Notice abuse. At the time, I called upon INTERPOL to implement such mechanism to ensure that no government request enters its channels if it concerns an individual whom INTERPOL had already found to be the victim of government abuse of its resources.
Under INTERPOL’s rules, the General Secretariat must act preemptively, not just deal with abusive government requests after they are already disseminated through its channels. In this regard, it is important to remember that not only do INTERPOL’s rules give the Organization the power to screen all incoming diffusions, notices and other government requests and block them before they enter its channels, the rules actually require INTERPOL to do so to prevent abuse. The right of governments to send diffusions to each other directly, bypassing the General Secretariat, does not trump the latter’s power and obligation to monitor and block all incoming requests, including diffusions, to prevent governments from violating the Organization’s rules.
The General Assembly, the body of supreme authority at INTERPOL, instructs that the Rules on the Processing of Data (RPD) “must be effectively implemented” (art. 17(1) of the RPD). RPD, which the General Assembly adopted, give the General Secretariat broad powers to ensure their effective implementation: “If a doubt arises regarding compliance with the conditions for data processing, the General Secretariat shall take all appropriate steps to prevent any direct or indirect prejudice the data may cause to the Organization, its staff, its Members, the National Central bureaus, the national entities, the international entities or the individuals that the data concern” (emphasis added) (art. 129(1) of the RPD). Therefore, to perform its obligation to ensure that governments and other users comply with the Organization’s rules, the General Secretariat (1) does not have to possess strong evidence that a request for police cooperation is not compliant, since mere doubt suffices; (2) must use any means not contrary to INTERPOL’s rules to block a request from being communicated; and (3) must act preventively, that is, block a request before it is disseminated and before INTERPOL member countries learn about its existence.
No matter which instrument a government uses to transmit its request, a diffusion, notice or message, it utilizes INTERPOL’s resources, and, therefore, any such request must comply with the Organization’s regulations and is subject to the above-mentioned broad powers of the General Secretariat (art. 8(1) of the RPD). In this regard, RPD stress: “The processing of data through INTERPOL’s channels shall be done exclusively in the INTERPOL Information System” (art. 4(1) of the RPD). RPD define the “INTERPOL Information System” as “all structured material resources and software used by the Organization — databases, communications infrastructure, advanced sensor technology and other services — to process data through its channels in the context of international police cooperation” (emphasis added) (art. 1(4) of the RPD). “Processing” includes “collection, recording, consultation, transmission, use, disclosure and deletion” of data (emphasis added) (art. 1(5) of the RPD). Under RPD, diffusions are “sent directly to one or several [NCBs] or to one or several international entities, and simultaneously recorded in a police database of the Organization” (art. 1(14) of the RPD), notices are “published by the Organization at the request of a National Central Bureau or an international entity, or at the initiative of the General Secretariat, and sent to all the Organization’s Members” (art. 1(13) of the RPD), and messages are “sen[t] directly to one or several [NCBs] or to one or several international entities through the INTERPOL Information System” (emphasis added) (art. 1(15) of the RPD). Therefore, whether a government uses a diffusion, notice or message, it always processes information through INTERPOL’s channels, and RPD apply to any such use.
The General Secretariat has broad discretion over mechanisms and tools it needs to perform its obligation to ensure continuous compliance with INTERPOL’s rules. Moreover, RPD require the General Secretariat to find and put such mechanisms and tools in place to prevent any unlawful data processing. Under RPD, the General Secretariat must “organize and administer the INTERPOL Information System and decide upon which technologies it should be based” (art. 22(2) of the RPD), “set up any databases to ensure that data recorded in the Organization’s police databases comply with the present Rules and to avoid unauthorized or erroneous processing of data in the databases” (art. 125(1) of the RPD), and “put in place the mechanisms and tools to guarantee [the quality of data recorded and transmitted in the INTERPOL Information System] at all times” (emphasis added) (art. 12(3) of the RPD). Therefore, the General Secretariat can choose any mechanism that would guarantee that it meets its obligations, including continuous monitoring of all incoming diffusions, notices and other requests to ensure that no such request is communicated via INTERPOL’s channels if it concerns an individual already declared the victim of INTERPOL abuse.
It is important to remember that the General Secretariat’s obligation to monitor and block non-compliant diffusions, notices and other requests before they are processed via INTERPOL’s channels also derives from its duty to unconditionally enforce CCF’s decisions. No government has the right to use INTERPOL’s resources in violation of CCF’s decisions, and INTERPOL and its General Secretariat have no choice but to follow CCF’s conclusions. After CCF rules that data about an individual must be deleted, any speculation that the same government has the right to continue to process any information about the individual through INTERPOL without undergoing comprehensive screening is a contradiction of INTERPOL’s rules which unequivocally give the General Secretariat the power to conduct such screening and consider CCF’s decisions final and binding. Any such speculation also makes the mechanism, which CCF and the General Secretariat represent and whose goal is to protect individuals from persecution and maintain INTERPOL’s neutrality, look useless.
Finally, if INTERPOL were denied the power to prevent non-compliant diffusions and other requests from being processed, it would also expose member countries-recipients of these requests to accusations of aiding and abetting governments-abusers. RPD hold responsible not only countries from which such requests originate but recipients of that data as well for any violations of the Organization’s rules. The General Assembly has repeatedly stressed that recipients are responsible for any consequences arising out of them acting on the information they receive. In this regard, RPD repeatedly remind all recipients of data that before acting on it they must check its quality to make sure it is accurate, relevant, not excessive and up to date, require that they take “appropriate measures so that data received are immediately updated at the national level once they have been informed of any modification or deletion,” and hold them “fully responsible for … any action taken at the national level based on data they have received.”
On July 25, 2023, Yuriy Nemets will speak at the American Bar Association (ABA) panel ‘Latest Developments in INTERPOL’s and its Member Countries’ Approach to Transnational Repression.’ The panel will discuss the latest developments in the area of INTERPOL abuse and defending the rights of individuals on the international wanted list. This is the fifth panel dedicated to this pressing problem hosted by the American Bar Association. Yuriy has participated in all five previous panels under the aegis of the ABA. Before that, in 2018, a panel on the topic was hosted by the Association of Certified Financial Crime Specialists (ACFCS) in which Yuriy participated as well. These panels are always comprised of experienced and dedicated professionals, attorneys who specialize in defending the victims of INTERPOL abuse as well as scholars who study and write about this issue. The panelists report on the most recent developments, such as INTERPOL’s latest approach to the interpretation and application of its rules, the reforms that must be carried out to bring the Organization’s redress mechanism closer to modern democratic due process requirements and legislative initiatives concerning INTERPOL abuse. It is exciting to witness the panel becoming a regular event. The discussions are always incredibly interesting and insightful. We are looking forward to this year’s panel, and we hope to see you there! Click here to register: https://urldefense.proofpoint.com/v2/url?u=https-3A__americanbar.zoom.us_webinar_register_WN-5FsUGjMqqXTze187DpIN5wnw&d=DwMGaQ&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=EdbakWNcaBtMWC6KkfB5Zv42TLxobocOWsk6DltS1vo&m=_LRIAoz2719_YERnqu6yP68mEHTn1DAZ1-4IRo7PyAJv0cZPjlPL9NhZY0njWAK1&s=kx7Vk6mMalntNgZ1ihFyyH90etRftbKAjHEYpMpv5-w&e=
According to INTERPOL, there are four types of requests that it receives from individuals: requests for access to the information in the Organization’s files, requests to correct or delete information (complaints), applications for the revision of decisions rendered by the Commission for the Control of INTERPOL’s Files (CCF), and preemptive (preventive) requests warning INTERPOL of potentially incoming abusive Red Notices, diffusions or other government requests. Of those four, preemptive is the only type of individual request that is nowhere mentioned in INTERPOL’s rules. It should not come as a surprise then that, unlike other individual requests, preemptive requests are not subject to any formal procedure for their consideration.
It is no secret that INTERPOL has serious issues with transparency for which it is widely criticized. One of the many examples is the INTERPOL refugee-asylum-seeker policy. Even though the policy was first introduced in 2015 and has proven to be a significant step towards better protection of victims of INTERPOL abuse, to this day, the Organization has not published its text. As ironic and incomprehensible as the absence of the policy in INTERPOL’s public disclosures is, at least, the policy has been officially adopted by the INTERPOL General Assembly, which makes requests based on its provisions subject to the same procedural rules that apply to requests for access and deletion of data. At the same time, preemptive requests have no formal status that would make it mandatory for the Organization to consider them, render decisions and enforce them. This creates a serious void in the INTERPOL redress mechanism.
Preemptive requests are important exactly because they are preemptive. INTERPOL’s obligation to act preemptively in fighting government abuse is chiseled in the Organization’s rules. The obligation is unambiguous, it is beyond dispute, and INTERPOL is given broad powers to fulfill it. How is it possible then that INTERPOL does not have a clearly defined, transparent and accessible formal procedure for the consideration of requests that are designed to help the Organization to prevent the abuse before it occurs? There can be no justification for such status quo.
For a very long time, INTERPOL would not comment on how it had been handling preemptive requests, although CCF on several occasions disclosed their number in its annual reports. CCF does not consider preemptive requests because it sees its powers as limited to data already recorded in INTERPOL’s databases, while preemptive requests concern data that, at least to their authors’ knowledge, have not been communicated via the Organization’s channels yet. INTERPOL has finally released its official guidance concerning the role of preemptive requests and how it handles them. According to INTERPOL, after CCF receives a preemptive request, it forwards it to the General Secretariat for its “information and appropriate action.” Neither does INTERPOL clarify what “appropriate action” means nor does the Organization guarantee that it will consider, much less act, on a preemptive request. There is not even a hint that the General Secretariat would notify the author of a preemptive request whether it would take any steps to address her or his concerns or even that it would notify the author if a government request of which s/he is trying to warn INTERPOL is received. INTERPOL has, therefore, confirmed the very limited role that preemptive requests play in the Organization’s activities.
In considering whether to file a preemptive request with INTERPOL, it is also important to remember that if CCF generally respects the confidentiality of individual submissions, no such obligation exists on the part of the General Secretariat. That is, there is always a possibility that the information in a preemptive request will be shared with the government which the individual believes is planning on abusing INTERPOL’s channels as well as with other governments, and against the individual in question.
Taking into consideration the limited role of preemptive requests and the lack of guarantee that the information contained in them is kept confidential, the next obvious question is whether it is worth filing a preemptive request with INTERPOL. It does, of course, depend on the circumstances of a particular case, but, in my opinion, in most cases it is worth it. After all, no matter how small the chance is that INTERPOL will act on a preemptive request, it might still prove to be more effective to warn the Organization of an incoming abusive Red Notice, diffusion or other government request than not. It is, however, important to remember that, as mentioned above, INTERPOL might not treat the information in a preemptive request as confidential and draft such request with that in mind.
NEMETS Law Firm has launched a webinar series dedicated to the problem of Red Notice abuse and other abuse of INTERPOL’s channels. In this regard, Yuriy Nemets, the firm’s managing member, said: “INTERPOL defense is a fairly young area of law. Due to its relatively young age, there are very few sources from which individuals who become targets of Red Notices and other government requests disseminated via INTERPOL’s channels can gather information about their rights. It is also a very complex area of legal practice. Over the years, many of INTERPOL’s initiatives expanding its role as the most effective hub for international police cooperation have created new dangers for the victims of abuse, while INTERPOL’s lawmaking has largely failed to keep up and ensure that this expanding role is in compliance with the organization’s human rights obligations. At the same time, INTERPOL’s application of its rules in cases of abuse has formed a substantial body of ‘case law’ that has provided a valuable insight for legal professionals while leaving many important questions unanswered. It is because of its depth and intricacies that we are launching this series. Our goal is to raise awareness, talk about the problems that the victims of Red Notice and other INTERPOL abuse face and, hopefully, find and suggest solutions to these problems.”
You can watch the first of the webinar series here: https://www.youtube.com/watch?v=BJIxNenMejE&t=23s
