Author: Yuriy Nemets

The Absolute Right of Governments to Deny Individuals Access to INTERPOL’s Files and the Need for Due Process: CCF Seeks Balance

The Absolute Right of Governments to Deny Individuals Access to INTERPOL’s Files and the Need for Due Process: CCF Seeks Balance

Under its Operating Rules adopted in 2008, CCF was prohibited from providing any individual access to information about her or him without consent from the government at whose request such information was recorded in INTERPOL’s files.  There was, however, one exception to this rule — CCF could provide access without a government’s consent if the individual had “sufficient evidence showing that he/she [knew] that there [was] information about him/her in INTERPOL’s files.”  In 2017, this exception was repealed with the adoption of the new CCF Statute.  As a result, CCF lost its power to disclose any information without first obtaining approval from a government, even if the individual possessed sufficient evidence that she or he was aware of the existence of a red notice or diffusion.

Under Article 18 of the INTERPOL Rules on the Processing of Data, “[a]ny person or entity shall be entitled to submit directly to the Commission for the Control of INTERPOL’s Files [(CCF)] a request for access to . . . data processed in the INTERPOL Information System concerning that person or entity.”  Although INTERPOL has long referred to this provision as the “right of access” to its files, individuals have not had unconditional access to any information about them recorded in the organization’s databases.

The new CCF Statute requires that a government justify any restriction on the disclosure of information (Article 35(4)).  However, the Statute also proclaims that “[t]he absence of justification alone will not lead to the disclosure of the content of the information.”  Although a government’s unjustified refusal “may be taken into consideration by [CCF] in assessing and deciding on [an individual’s] request [to delete information from INTERPOL’s files],” CCF does not disclose any information without an approval no matter how much governments abuse what has become, since the Statute entered into force, their unrestricted, absolute right to deny access.

Defense lawyers, human rights advocates and INTERPOL have all agreed that it is critical for individuals who challenge red notices and diffusions to be able to access information about themselves in the organization’s databases.  For example, in some cases, individuals are unable to obtain information about the full extent of the prosecution and charges against them at a national level.  In such cases, the lack of access to a red notice or diffusion makes it virtually impossible to prepare a comprehensive complaint against the government’s use of INTERPOL’s resources.  CCF has recognized that a restriction on access to information about an individual may “create imbalance between the parties,” “[hinder] the adversarial nature of the proceedings [before CCF] by preventing [an individual] from being able to present specific counter-arguments” and lead to a “fundamental breach” of her or his rights.

Not surprisingly, with the adoption of its new Statute, CCF’s handling of requests for access to information has attracted a lot more attention.  Ironically, INTERPOL granted governments the absolute right to deny access to its files at the same time as the organization was carrying out several important reforms aimed at bringing CCF’s proceedings regarding individual complaints more in line with due process standards.  When the Statute came into force, it was unclear how CCF could continue to move towards guaranteeing individuals due process, the direction which the recent reforms were clearly pointing in, and at the same time enforce the governments’ absolute right to deny individuals access to information about them in INTERPOL’s files.  In its recent decisions, CCF provides much insight into its search for a balance in this regard.

CCF has stressed that in order to comply with Articles 35(3) and 35(4) of the Statute, a government must:

  • “[(1)] indicate the reason(s) for its refusal to disclose any information to the Applicant, among the following ones listed in Article 35(3) of the CCF Statute: (a) [t]o protect public or national security or to prevent a crime; (b) [t]o protect the confidentiality of an investigation or prosecution; (c) [t]o protect the rights and freedoms of the applicant or third parties[;]
  • [(2)] justify its refusal in the specific case at hand[;]
  • [(3)] indicate, as provided for by Article 35(4) of the CCF Statute, whether a minimum amount of information can be disclosed to the applicant.”

When a government requests restrictions on access to information about an individual, CCF “tries on the one hand to protect the interests of the parties, while preserving at the same time the essence of an adversarial procedure in order to provide an effective remedy.”  In assessing whether the government’s interest in restricting access to information outweighs an individual’s interest in obtaining access to such information, CCF “takes into account, inter alia, the general context of the case, the other avenues available to the [individual] to obtain access to the information at the national level, the potential violation of other rules or international obligations, the possible risks for INTERPOL.”  Although under the Statute the absence of justification for a refusal to disclose information does not lead to its disclosure, CCF, nevertheless, considers the provision an “exception to the general principle of communication of information,” recognizes that it is “bearing consequences on the rights of the parties” and for that reason interprets it “strictly.”

To prove that a restriction on the disclosure of information meets at least one of the justifications provided in Article 35(3) of the Statute, the party must show that the restriction is “relevant” and “necessary and proportionate to [its] stated purpose.”  In order to make an “effective determination” in this regard, CCF, unlike the parties in a case before it, “must be allowed unlimited access to the information concerned.”  In this regard, some of CCF’s recent decisions describe examples of governments’ unjustified refusals to disclose information to an individual.  Among the most obvious violations of Article 35 is a government’s opposition to any disclosure, “an absolute restriction of communication of information,” “without any reference to the grounds mentioned in Article 35(3)” combined with the government’s refusal to “any counter-balancing measures (such as the provision of a redacted summary, of a minimum set of information, or simply a confirmation of the existence of data), which may have minimized the impact of the restrictions on the rights of the [individual].”  CCF has also ruled that governments must prove “relevance and proportionality” of requested restrictions on the disclosure of information “in the context of [the] case.”  In this regard, a government’s “general comments on the potential consequences of a disclosure” instead of evidence “link[ing the restrictions] to the particular case at hand” do not suffice.    

It is important to remember that a government’s refusal to provide a justification for non-disclosure of information and, as a result, its non-compliance with INTERPOL’s rules regarding individual access to its files, does not automatically mean that CCF will interpret the government’s refusal in favor of the individual in deciding on her or his request to delete information.  For example, if an individual obtains such information from a source other than CCF, the government’s decision to deny her or his request for access addressed to CCF might not be taken into consideration by the latter.  Ultimately, CCF seems to be more concerned about an individual’s ability to “effectively challenge the data” than a government’s unjustified refusal to disclose it.  

Despite the limits that the INTERPOL General Assembly has placed on the ability of individuals to access information about them in the organization’s files, CCF seems to take seriously the issue of governments abusing their absolute right to deny such access.  For example, in one of its recent decisions, CCF has ruled to delete a request to locate and arrest the individual in view of his extradition unless the government, which has previously placed an absolute restriction on communication of information to the individual without justification, agrees to provide such access or justifies its refusal to do so under the Statute.  Undoubtedly, CCF deserves credit for this.

 

Application of the “Private Disputes” Provision and Article 3 of the INTERPOL Constitution: the Need for Clarification

Application of the “Private Disputes” Provision and Article 3 of the INTERPOL Constitution: the Need for Clarification

INTERPOL Headquarters, Lyon, France

Under Article 83(1)(a)(i) of INTERPOL’s Rules on the Processing of Data (RPD), “Red notices may not be published for . . . offences . . . deriving from private disputes, unless the criminal activity is aimed at facilitating a serious crime or is suspected of being connected to organized crime.”  I am often contacted by entrepreneurs with red notices and diffusions published at the request of or disseminated by countries where illegal business takeovers are common.  Such takeovers are usually characterized by criminal conduct from a party attempting to force a business owner to surrender her/his rights or interest in the business against the latter’s will by means of force, threats and/or extortion and accompanied by trumped-up charges against the victim brought by corrupt government officials in aid of the takeover if the victim refuses to comply.  In its 2016 annual report, the Commission for the Control of INTERPOL’s Files (CCF) highlights politically motivated prosecutions of “particularly influential businessmen” among the main substantive issues before it.  In its 2017 report, the Commission notes that “[w]hile a few of [the cases challenging compliance with Article 3] involve former high-ranking politicians, most of them concern people involved in business activities and charged with various fraud-related offenses.”  In this regard, I believe it is crucial that the Commission inform the general public about its interpretation of the “private disputes” provision of Article 83(1)(a)(i) of the RPD in the context of illegal business takeovers.  Does the Commission consider illegal business takeovers described above private disputes for the purposes of Article 83(1)(a)(i) and red notices and diffusions arising out of such takeovers to be in violation of said provision?  In addition, it would be very helpful if the Commission provided examples or hypotheticals of what it would consider to be a “private dispute” for the purposes of Article 81(1)(a)(i) of the RPD.

It is my understanding that the Commission has been applying Article 3 of the INTERPOL Constitution in cases in which the initial reason for the criminal prosecution is not the individual’s involvement in any political, religious, military or racial activity, but rather the government’s participation in an illegal seizure of the individual’s assets or the government’s involvement in a civil dispute with said individual.  I believe the Commission has signaled this approach in at least two cases.  In one of its published decisions, the Commission ruled that the prosecution in aid of an attempt by government officials to take control of the individual’s assets was predominantly political and, therefore, in violation of Article 3.  In another case, the Commission ruled in favor of the individual who claimed that the prosecution was in retaliation for the arbitration proceedings against the requesting government.  I believe the Commission has also signaled this approach in its two most recent annual reports mentioned above.  However, these decision excerpts and annual reports merely suggest that the Commission has taken this approach; they do not unequivocally confirm that.  In this regard, it would be very helpful if the Commission officially clarified its position: does it consider Article 3 applicable in cases in which the initial reason for the criminal prosecution is not the individual’s involvement in any political, religious, military or racial activity, but rather the government’s unlawful conduct, including, but not limited to, illegal takeovers of businesses as described above, extortion by a government official threatening the individual with a trumped-up charge if s/he does not comply with the unlawful demand, or the government’s involvement in a private (civil or commercial) dispute with such individual?

INTERPOL Abuse: Expulsion of Countries-Abusers from INTERPOL is Not an Answer

INTERPOL Abuse: Expulsion of Countries-Abusers from INTERPOL is Not an Answer

INTERPOL Headquarters, Lyon, France

Over the last several years, INTERPOL has carried out important reforms to its mechanism of adjudicating complaints from individuals challenging government use of the organization’s resources.  However, despite the reforms, abuse continues on a very large scale.  It does not mean, however, that the reforms have failed. In fact, the majority of them have proven to be steps in the right direction, bringing the mechanism closer to providing individuals due process.  The situation around INTERPOL abuse has not significantly improved because the organization has failed to carry out all the necessary reforms.  For example, individuals challenging abusive red notices and diffusions still do not have the right to a hearing, examine evidence produced by governments and appeal decisions denying their requests to delete information from INTERPOL’s files.  Even if INTERPOL carried out all the necessary reforms, it is unlikely that abuse would stop completely and forever.  Governments with no respect for the rule of law would almost certainly carry on with their attempts to misuse its channels, although it would be much harder for them to succeed.  At the same time, if INTERPOL does not implement all the necessary safeguards and fails to guarantee individuals due process, there is very little hope that abuse will decrease; on the contrary, in all likelihood, it will keep growing.

There have been many ideas on how to fight INTERPOL abuse, one of which is a harsh punishment for abusers.  The proposal to strip countries-offenders of their INTERPOL membership and, as a consequence, deny them access to the organization’s resources, has become very popular among commentators in the media and on social networks.  However, some lawyers and human rights advocates who specialize in defending victims of red notice and diffusion abuse have already come out strongly against the idea.  I have always belonged to the latter group.

At first glance, expulsion of governments which use INTERPOL for political or other unlawful purposes may seem like an effective remedy.  After all, a government without access to INTERPOL’s channels cannot misuse them.  This proposal has a major downside.  The expulsion of just one country may negatively affect the remaining members of the organization.  A government without access to INTERPOL’s databases might not be able to identify criminals wanted by other countries or inform foreign law enforcement about criminals entering their territories.  This could be detrimental to regional and global security.

It is not just the information about individuals wanted for criminal prosecution that is stored in INTERPOL’s files.  The organization helps its members exchange information crucial in their criminal investigations.  This includes forensic information that can help solve crimes, identify missing persons and rescue crime victims.  In this regard, INTERPOL places special emphasis on victims of child abuse and helps fight international child sexual exploitation.  In addition, INTERPOL’s databases contain information about stolen and lost travel documents, counterfeit documents and documents that help identify stolen property (vehicles, vessels, works of art etc.).  INTERPOL’s information also helps governments identify illegally trafficked firearms, investigate organized crime networks and fight maritime piracy.  Denying a government access to any of these data may impede legitimate investigations and punish crime victims.  Such a measure cannot be considered balanced or responsible.

It has been suggested that instead of suspending or terminating countries’ INTERPOL membership we should be punishing government officials responsible for unlawful prosecutions behind abusive red notices, diffusions and other requests submitted to INTERPOL.  I agree with that view.  Even if such punishment is not imposed on the global level, that is, by all INTERPOL members, the national laws of just one country may prove to be a serious punishment and deterrent.  For example, the U.S. Global Magnitsky Human Rights Accountability Act empowers the President of the United States to impose sanctions on “any foreign person” who “based on credible evidence:

(1) is responsible for . . . gross violations of internationally recognized human rights committed against individuals in any foreign country who seek (A) to expose illegal activity carried out by government officials; or (B) to obtain, exercise, defend, or promote internationally recognized human rights and freedoms . . . ;

(2) acted as an agent of or on behalf of a foreign person in a matter relating to an activity described in paragraph (1);

(3) is a government official, or a senior associate of such an official, that is responsible for, or complicit in, ordering, controlling, or otherwise directing, acts of significant corruption, including the expropriation of private and public assets for personal gain . . . ; or

(4) has materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services in support of, an activity described in paragraph (3).”

Among the sanctions described in the U.S. Global Magnitsky Act are ineligibility to receive a visa to enter the United States, revocation of an already issued visa, and blocking all transactions in all property the sanctioned person has interests in.  Other countries have followed the United States’ example and either already implemented or started debating their own versions of the Global Magnitsky Act.  Taking into consideration the significant efforts some individuals affected by the Act have engaged in to lift the sanctions, it has proven to be a serious response to their conduct.

Therefore, we must remember that there is at least one way to hold those who engage in INTERPOL abuse accountable without disrupting legitimate international police cooperation.  We should be working towards achieving this balance.

CCF Latest Report: Enforcement Loopholes, Political Prosecutions of Businessmen, Lack of Transparency

CCF Latest Report: Enforcement Loopholes, Political Prosecutions of Businessmen, Lack of Transparency

INTERPOL Headquarters, Lyon, France

The Commission for the Control of INTERPOL’s Files (CCF) has published its new annual report.  It covers the Commission’s activities throughout 2017, including the transition it has undergone to comply with its new Statute adopted by the INTERPOL General Assembly.  The report also reflects on the problems with the enforcement of decisions to remove politically motivated or otherwise unlawful red notices and diffusions, the Commission’s application of Article 3 of the INTERPOL Constitution, and the lack of transparency in its public disclosures.

Last year, Spanish authorities detained Bill Browder, a prominent critic of Vladimir Putin.  Although the full circumstances of this arrest remain unclear, it has been alleged that Spain acted on an active Russian request disseminated through INTERPOL’s channels.  Prior to this arrest, Russia had made several attempts to publish a red notice against Mr. Browder.  INTERPOL had refused to cooperate and called the case predominantly political.  Nevertheless, in 2017, Russia reportedly succeeded in disseminating a diffusion against Mr. Browder.  Unlike red notices, diffusions aren’t subject to any screening from INTERPOL prior to their publication.

After Mr. Browder’s arrest in Spain, INTERPOL’s enforcement of the Commission’s decisions became the center of attention.  Did INTERPOL successfully block each and every red notice and diffusion already found to be in violation of its rules from being disseminated?  I can think of only two reasons why an individual found to be a victim of INTERPOL abuse would appear on the international wanted list at the same country’s request: either INTERPOL did not have a comprehensive mechanism that would match incoming red notices and diffusions with its prior findings of abuse, or the organization had an unspoken policy which would under certain circumstances allow the same governments to put victims of their abuse back on the wanted list.

According to its latest report, “[t]he Commission dealt with cases where the sources of data have sent a diffusion to INTERPOL members to request the arrest of an individual, whereas a request for a red notice has previously been refused.”  Moreover, “[i]t also processed requests which highlighted the use of the SLTD [(Stolen and Lost Travel Documents)] database where a diffusion or a notice to arrest a person was considered not to comply with INTERPOL’s rules.”  In the report, the Commission calls this practice “misuse of INTERPOL’s channels,” and notes that it deletes any such data and informs the countries which received it that its channels cannot be used in such cases.  The report, therefore, confirms that INTERPOL does not possess a comprehensive mechanism that would preclude the same governments from putting individuals found to be victims of red notice and diffusion abuse on the INTERPOL wanted list.  This is, of course, unfortunate, because the loophole should be easy to fix by simply implementing a reliable computer software.  The recent reforms aimed at guaranteeing individuals an effective remedy against INTERPOL abuse seem futile if governments can with impunity (taking into consideration INTERPOL’s unwillingness to punish countries-abusers) harass their victims by utilizing diffusions or the SLTD database. The question remains, after an abusive government exercises all these ‘options,’ is this the end of harassment, or is there yet another way to put the same individual back on the international wanted list by, for example, charging her/him with a new crime or issuing a different type of notice?

Another major takeaway from the Commission’s latest report is its application of Article 3 of the INTERPOL Constitution.  In its 2016 annual report, the Commission for the first time in its annual public disclosures recognized politically motivated prosecutions of businessmen among the main issues before it.  At the same time, it did not comment on its application of Article 3 in cases in which individuals have not actively engaged in any political activities but instead became victims of corrupt prosecutions, for example, in aid of an illegal takeover of their businesses or other proprietary rights.  Some of the published excerpts from the Commission’s decisions in individual cases suggest that it has applied Article 3 in such cases despite the fact that there has been no active political activity on the part of the individuals challenging the governments’ use of INTERPOL’s channels.  The 2017 annual report also suggests that the Commission has taken this approach: “While a few of [Article 3] cases involve former high-ranking politicians, most of them concern people involved in business activities and charged with various fraud-related offenses.”  Although the Commission still has not unequivocally confirmed that Article 3 applies in such cases, its published decisions and the latest annual report suggest that it does.

The third important takeaway from the 2017 report is that the Commission has still not truly become any more transparent and yet again avoided disclosing the names of countries that have violated its rules.  Despite the growing attention being paid to INTERPOL abuse, the number of instances in which the public learns about the countries-abusers and the nature of their violations is very low compared to the growing number of complaints the Commission receives from individuals.  In its 2010 annual report the Commission identified member countries against which it had received the majority of complaints without, however, naming the countries the Commission found to be in violation of INTERPOL’s rules and the nature of their violations.  None of the Commission’s reports for the following years, including its most recent report, identifies member countries against which the Commission has received complaints, the number of times the Commission found those countries in violations of its rules or the nature of their violations.  The Commission purview clearly empowers it to disclose this information to the general public.

Hakeem al-Araibi Case Shows How Vulnerable Refugees Remain to INTERPOL Abuse

Hakeem al-Araibi Case Shows How Vulnerable Refugees Remain to INTERPOL Abuse

Refugee Travel Document

In February 2015, the INTERPOL Executive Committee disseminated among the organization’s member countries a new policy according to which INTERPOL would generally refuse to cooperate with governments seeking detention of refugees and asyum-seekers.  Although the policy should help INTERPOL protect individuals from persecution, which the organization considers one of the primary objectives of all its activities, it has significant loopholes.  One of such loopholes is that the policy does not consider refugees and asylum-seekers an exception to the INTERPOL general rule that an individual cannot learn whether there is a request for her or his arrest (known as a “red notice” or a “diffusion”) in the INTERPOL databases without the government’s consent.  As a result, like other individuals, refugees and asylum-seekers often learn that there is a red notice or a diffusion against them only after they are detained due to an INTERPOL alert.  An arrest may lead to a prolonged detention and potentially extradition.  For refugees and asylum-seekers who find themselves in this situation, the rights provided for in the INTERPOL policy come too late.

Manama, Bahrain

Hakeem al-Araibi is far from the first refugee to be detained due to an INTERPOL alert since the organization introduced the policy.  For example, in the summer of 2016, Italian authorities acting on an Iranian red notice detained Mehdi Khosravi, an Iranian national and human rights activist with refugee status granted by the United Kingdom.  Similarly, Paramjeet Singh, a supporter of Sikhs’ right to self-determination who fled India and in 2000 was granted refugee status in Great Britain, was arrested in December 2015 due to an Indian red notice and spent two months in detention before Portugal agreed to release him.

Parliament House, Canberra, Australia

Should we expect INTERPOL to improve the policy and stop the continuing abuse of its resources against refugees and asylum-seekers?  In September 2017, the General Assembly, the body of supreme authority at INTERPOL, adopted a Resolution endorsing the Executive Committee’s policy.  The Resolution, however, seems to indicate that the General Assembly is much more concerned about criminals abusing refugee status than governments abusing INTERPOL to persecute refugees and asylum seekers.  While the Resolution calls upon governments and INTERPOL to do everything in their power to ensure that refugee status is not abused and to that end enhance the exchange of information in the process of examining asylum applications, it makes no reference to Article 3 of the INTERPOL Constitution, which strictly forbids the organization from participating in any activity of a political, military, religious or racial character, or to the need to protect individuals from persecution.  Despite the continuing abuse of INTERPOL’s resources against refugees and asylum seekers, nothing in the Resolution calls upon INTERPOL to address the problem.

INTERPOL must make an exception and provide refugees and asylum seekers the right to know if there is information about them in the organization’s databases without obtaining prior consent from the respective governments.  Otherwise, Hakeem al-Araibi will not be the last refugee-victim of INTERPOL abuse.

 

American Bar Association Panel ‘Red Notices and the INTERPOL Wanted List: Balancing Law Enforcement with Due Process’

American Bar Association Panel ‘Red Notices and the INTERPOL Wanted List: Balancing Law Enforcement with Due Process’

On January 29, 2019, Theodore Bromund (The Heritage Foundation), Michelle Estlund (Estlund Law), Yuriy Nemets (Nemets Law Firm), Rebecca Schaeffer (Fair Trials) and Bruce Zagaris (Berliner Corcoran & Rowe) spoke at the event ‘Red Notices and the INTERPOL Wanted List: Balancing Law Enforcement with Due Process’ organized by the American Bar Association (ABA) and Association of Certified Financial Crime Specialists (ACFCS).  The panel discussed the problem of INTERPOL abuse by governments that use the organization’s resources to persecute political opponents and other victims of unlawful criminal prosecutions:

United States Senators Introduce a Bill Against Russia’s Abuse of INTERPOL’s Resources

United States Senators Introduce a Bill Against Russia’s Abuse of INTERPOL’s Resources

Senators Graham, Menendez, Gardner, and Cardin have recently introduced a bipartisan bill called “Defending American Security from Kremlin Aggression Act of 2018.”  In addition to promoting the strengthening of the NATO alliance, increasing diplomatic efforts, fighting against international cybercrime, election interference and other measures, the bill addresses Russia’s abuse of INTERPOL’s resources: “It is the sense of Congress that the Government of the Russian Federation has abused and misused INTERPOL’s red notice and red diffusion mechanisms for overly political purposes and activities such as intimidating, harassing, and persecuting political opponents.”  If the bill becomes law, it will be the first US law specifically targeting Russia for its abuse of INTERPOL’s channels.

The United States Capitol, Washington DC

The bill calls upon the United States Attorney General and the Secretary of Homeland Security to “use the voice and influence of the United States at INTERPOL to censure and sanction” Russia for its abuse of the organization’s resources, “including the suspension of [its] ability to use INTERPOL’s red notice and red diffusion mechanisms.”  It is important to remember that the United States, like any other member country, has only one vote at the INTERPOL General Assembly.  To address Russia’s abuse of red notices and diffusions, the United States will have to convince the majority of the organization’s member countries to join its efforts.  Although the bill largely leaves it to the Attorney General and the Secretary of Homeland Security to decide on specific steps, it clearly obliges the agencies to actively seek a solution to the problem.

In addition to calling for increased efforts in the international arena, the bill contains important protections the United States would provide the victims of INTERPOL abuse: “No United States person or foreign person that is the subject of a red notice or red diffusion requested by the Government of the Russian Federation shall be denied access to any United States Government services or programs because the person is subject to such red notice or diffusion, including requesting asylum, requesting a visa, or participating in a visa waiver program or the Transportation Security Administration’s Trusted Traveler Program.”  Although a red notice or diffusion on its own should not serve as proof of any misconduct on the part of the individual and, therefore, be used to deny her or him any of the services mentioned in the bill, in practice, US officials have often mistakenly interpreted red notices and diffusions as precisely that – evidence of criminal behavior.

Reportedly, there have been cases in which United States immigration judges denied asylum-seekers bond or refugee status or both and cited red notices or diffusions as a basis for their decisions.  In such cases, immigration authorities have wrongly interpreted red notices and diffusions as evidence against asylum-seekers.  At the same time, unlike asylum cases, which are often reviewed in courts and become a matter of public record, visa denials are rarely subject to judicial review, and there is no publicly available data regarding the number of visa applications denied due to an active red notice or diffusion.  Despite the lack of comprehensive statistics, practitioners have sounded the alarm on the ever increasing number of such denials.  It is, therefore, both timely and critical for Congress to put an end to this unlawful practice and adopt a law clearly proclaiming that red notices and diffusions are not admissible as evidence against the individual in question, whether it be an extradition, asylum or any other matter.

It is also important to remember that Russia is far from being the only abuser of INTERPOL’s channels, although it is arguably among the major ones.  That is why US efforts should not be limited to specific countries.  We need to help INTERPOL prevent the abuse or, at the very least, minimize it no matter who the abuser is.  It is also important to remember that suspending the Russian government, or any other government, from issuing red notices and diffusions, as suggested in the bill, could have serious negative consequences for the security of the rest of INTERPOL’s 191 member countries.  INTERPOL’s regulations give the organization the power to suspend any country’s use of its databases if the country utilizes them for unlawful purposes.  It is not clear whether INTERPOL has ever resorted to this measure.  However, such a measure could do more harm than good by crippling legitimate international police cooperation.  If a country cannot access the INTERPOL databases, it might not be able to prevent real criminals from entering its territory and thereby escaping justice.  At the same time, if a government’s access is suspended, and it cannot put individuals on the international wanted list, other governments may not be able to identify real criminals coming from a country with suspended access and thereby unwillingly provide them shelter and the ability to continue their criminal activities in their territory.  Indeed, there are other measures that have been proposed which INTERPOL could adopt to minimize red notice and diffusion abuse without disrupting legitimate international police cooperation.

 

Bill Browder’s Case Highlights Loopholes in Relief INTERPOL Grants Victims of Red Notice Abuse

Bill Browder’s Case Highlights Loopholes in Relief INTERPOL Grants Victims of Red Notice Abuse

On May 30 of this year, acting on an INTERPOL alert, Spanish authorities detained Bill Browder, an outspoken critic of Vladimir Putin’s regime.  Prior to this arrest, Russia had reportedly made at least five attempts to put Mr. Browder on the international wanted list.  In the past, INTERPOL refused to cooperate, citing the Commission for the Control of INTERPOL’s Files (CCF), which concluded that his case was predominantly political.  After several hours and, reportedly, the personal involvement of the INTERPOL Secretary General, Spanish police released Mr. Browder.

The full circumstances of this arrest remain unclear.  According to some reports, at the time, there was an active Russian request to detain Mr. Browder published in INTERPOL’s database.  INTERPOL, however, denied its involvement, and some commentators argued that Spain could have acted on old information in its national database, which the country failed to update timely to reflect the changes in INTERPOL’s files.  In its public statement, INTERPOL denies that there has ever been a red notice against Mr. Browder recorded in its database, but as Ted Bromund rightfully notes, the statement “is economic with the truth.”  The fact that INTERPOL has never approved a red notice against Mr. Browder doesn’t mean that there has never been a diffusion against him in the organization’s database.  Unlike red notices, diffusions aren’t subject to any screening from INTERPOL prior to their publication.  Indeed, in 2017, Russia reportedly succeeded in publishing a diffusion against Mr. Browder.  That is, after several unsuccessful attempts to have INTERPOL approve a red notice, the Russian government took the easier path of publishing a diffusion, thereby bypassing any preliminary check from the organization.

Investigative Committee of the Russian Federation, Moscow

Whether it was a failure to update the national database or a new diffusion that led to Mr. Browder’s arrest in Spain, both can happen to anyone who has ever been on the INTERPOL wanted list.  As long as either of these scenarios exists, any relief the CCF grants victims of red notice or diffusion abuse is limited at best.

The fact that individuals remain under the threat of arrest just because INTERPOL and its member countries have failed to ensure that national and INTERPOL databases are simultaneously updated is, quite frankly, appalling.  Objectively, this should have been the first obvious step to ensure that decisions to remove individuals from the international wanted list were enforced.  At the same time, the lack of an official public statement from INTERPOL on how it works to prevent the publication of red notices and diffusions the CCF has already declared unlawful, is yet another reason to wonder if the organization even has a plan to deal with the problem.

The public deserves to know whether INTERPOL is committed to enforcing its own decisions not to cooperate with governments in individual cases.  Does the organization monitor all incoming red notices and diffusions to make sure they are not published if the CCF has already found them to be predominantly political or otherwise unlawful?  If it is a matter of finding and implementing a reliable technology, the loophole should be easy to fix: such monitoring could be conducted via reliable computer software.  If, however, it is a matter of policy and INTERPOL allows governments to publish red notices and diffusions already found to be in violation of the organization’s rules, the problem is much more serious.

The Prosecutor General’s Office of the Russian Federation, Moscow

If INTERPOL has interpreted its rules to mean that governments can, under certain circumstances, place individuals, whose complaints the CCF has already approved, on the international wanted list, then its interpretation is wrong.  Only the CCF has the power to reverse its own decisions.  Neither the INTERPOL Constitution nor its other regulations grant any other body that power.  If INTERPOL believes it can allow a government to put an individual, already declared a victim of INTERPOL abuse, on the wanted list if the government simply brings new charges, it is hard to imagine that INTERPOL doesn’t realize how easy it is for a government to come up with new trumped-up charges.

Whether it is a technological or a policy loophole that allows governments to continue to use INTERPOL to persecute individuals the CCF has already declared victims of red notice or diffusion abuse, that loophole must be closed immediately.  If INTERPOL fails to act, there will be many more cases like Bill Browder’s.  In the meantime, Russia is already reportedly considering its next, seventh, attempt to put him on the international wanted list.

INTERPOL Red Notice Abuse: Whistleblowers Have Rights Too

INTERPOL Red Notice Abuse: Whistleblowers Have Rights Too

It has been reported that INTERPOL has refused to cooperate with Russia in the case of Grigory Rodchenkov, the former head of Russia’s anti-doping laboratory-turned-whistleblower.  Mr. Rochenkov has publicly accused the Russian government of running a doping scheme during the 2014 Winter Olympics in Sochi.  Mr. Rodchenkov’s case may look like just another government trying to abuse INTERPOL’s resources to persecute a political opponent.  However, it stands out because the target of the red notice is a whistleblower wanted not because of his political beliefs but because as a previous insider, he witnessed and exposed the government’s misconduct.

Mr. Rodchenkov’s story prompted the World Anti-Doping Agency (WADA) to investigate the allegations.  Mr. Rodchenkov’s story is described in media reports and the Academy Award-winning documentary “Icarus.”  After Mr. Rodchenkov went public with his story, the Russian government filed criminal charges against him.  He managed to leave the country, and Russian law enforcement sought INTERPOL’s cooperation in locating him and bringing him back.

INTERPOL’s rules don’t specifically address the red notice abuse against whistleblowers.  Nevertheless, there is no doubt that the INTERPOL Constitution and the organization’s regulations based on it protect whistleblowers to the same degree they protect politicians, activists, reporters, entrepreneurs, and other individuals who often become victims of politically motivated criminal charges.  Mr. Rodchenkov’s case proves that to comply with its Constitution, which strictly prohibits INTERPOL from undertaking any activity of a political nature, it is crucial for the organization to protect whistleblowers from the abuse of its resources.

INTERPOL Sees Increase in Complaints from Refugees, Highlights Politically Motivated Prosecutions of Businessmen Among Main Issues

INTERPOL Sees Increase in Complaints from Refugees, Highlights Politically Motivated Prosecutions of Businessmen Among Main Issues

In its 2016, most recent, annual report, the Commission for the Control of INTERPOL’s Files cites an increase in the number of complaints from refugees and for the first time in its annual public disclosures recognizes politically motivated prosecutions of businessmen among the main issues before it.  Although notable, the increase in complaints from refugees was expected.  In June 2014, the INTERPOL Executive Committee introduced a policy, which provided refugees with a somewhat simplified path to red-notice-free status.  It isn’t surprising, therefore, that more refugees have been petitioning INTERPOL to delete their information from its files.  However, that INTERPOL has finally publicly named politically motivated red notices issued against businessmen among its main issues is a very important development.

For a long time, long before the Commission’s 2016 report, entrepreneurs have been among the main targets of INTERPOL red notice abuse.  Nevertheless, INTERPOL would not admit the problem to the general public. Instead, human rights advocates and the media reported multiple individual cases.  Entrepreneurs who take on an active role in politics or find themselves in a dispute with a government or with someone closely connected to the government often become victims of corrupt prosecutions based on trumped-up charges.  Such prosecutions are regularly used to retaliate against entrepreneurs who refuse to cease their political activities, give up their business interests, or abandon legitimate civil lawsuits or administrative or criminal complaints.  Entrepreneurs who manage to leave their countries before the government restricts their freedom of movement are often arrested abroad, placed in extradition proceedings, find themselves unable to travel, do business, or simply open a personal bank account due to the red notice or diffusion recorded in INTERPOL’s files.

Article 2 of the INTERPOL Constitution requires international police cooperation to be conducted in accordance with the member countries’ national laws and in the spirit of the Universal Declaration of Human Rights, and Article 3 strictly forbids INTERPOL to undertake any “intervention or activities of a political, military, religious or racial character.”  An individual on the INTERPOL wanted list who believes that in the course of the criminal case the government violated the country’s laws, the Universal Declaration of Human Rights, or prosecuted the individual for her or his political beliefs should consider invoking Article 2 or Article 3 or both.  In addition, entrepreneurs should consider the “private disputes” provision of the INTERPOL Rules on the Processing of Data.  The provision prohibits the publication of a red notice if the offense behind it derives from a private dispute, “unless the criminal activity is aimed at facilitating a serious crime or is suspected of being connected to organized crime.”  Some of the Commission’s decisions regarding red notices and diffusions issued against entrepreneurs suggest that entrepreneurs may indeed benefit from the “private disputes” provision, for example, when a red notice or diffusion arises from a dispute of a civil, rather than criminal, nature and, therefore, must be resolved in the course of a civil, rather than criminal, trial.

The INTERPOL Repository of Practice contains very useful information about INTERPOL’s application of Article 3 to red notices and diffusions issued in a political context, including charges against current and former politicians, offences concerning freedom of expression, assembly, and association, security of the state, unconstitutional seizure of power, embargo and sanctions, and elections.  Since 2014, the Commission for the Control of INTERPOL’s Files has seen an increase in the number of complaints alleging violations of the Universal Declaration of Human Rights.  In this regard, INTERPOL has yet to compile a repository of practice on Article 2 of the Constitution, although the Commission has already started developing its own “case law” in this area.  Now, that the Commission has recognized unlawful prosecutions of businessmen among the main issues before it, it is time for the Commission and INTERPOL to admit  that the “private disputes” provision needs its own repository of practice.  Indeed, when engaging in corrupt prosecutions, governments often charge entrepreneurs with crimes of a business nature that may look like they are related to the entrepreneur’s professional activities and thereby lend the criminal case some appearance of legitimacy but in fact are used to illegally transform what really is a civil private dispute into a criminal case.  It is, therefore, crucial for INTERPOL and the Commission to be transparent about how they interpret and apply the “private disputes” provision and for that purpose compile, publish, and constantly update a detailed repository of practice.

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