Yuriy Nemets, Author at Red Notice Abuse Report

Imagine the Taliban Using INTERPOL

By Yuriy Nemets | August 25, 2021 | Comments 0 Comment

For several days, the world watched Afghanistan fall into the hands of the Taliban. What seems even more stunning than the speed with which the country has been taken over is what appears to be the readiness of some politicians, including those representing Western democracies, to recognize the new regime as a legitimate government. Let us imagine the Taliban using INTERPOL.

Shortly after the takeover began, INTERPOL reportedly suspended Afghanistan’s access to its databases. The organization acted swiftly and properly in this case. Evidently, using INTERPOL to track down top members of the overthrown government was among the new regime’s top priorities, as just days after they left the country, it requested that INTERPOL put them on the international wanted list. Once again, not only does this prove INTERPOL’s major role in fighting crime, but its image as an effective and powerful tool in political conflicts as well. It is important to note that INTERPOL has reportedly not approved the requests.

It is highly unlikely, however, that the Taliban’s ambition to track down its opponents will end with the country’s former heads of state and their cabinet members. In this regard, past experience shows that when the targets are high-ranking officials, INTERPOL is often proactive and ready to prevent the abuse of its channels before it occurs, especially when a government request is submitted during or shortly after a turbulent political event in the country. Unfortunately, INTERPOL is rarely proactive in other cases, and if the Taliban is recognized as a legitimate power and the country’s access to INTERPOL’s databases is restored, many of those who manage to leave Afghanistan will likely face the same fate as so many human rights activists, journalists, bloggers, scholars, and others who have become victims of INTERPOL abuse committed by other countries.

Following their withdrawal from Afghanistan, for the United States and its allies, the problem of INTERPOL abuse is about to become as topical as ever taking into consideration the large number of refugees, including interpreters and others whose help the coalition depended on during its 20-year-long presence in the country. The question is, will this make the United States and its allies finally recognize the urgency of further reforms within INTERPOL and the need for their active participation in that process?

No Right to a Hearing

By Yuriy Nemets | May 14, 2021 | Comments 0 Comment

Under the CCF Operating Rules adopted in 2008 and abrogated in 2017, “[t]he Commission shall not meet requesting parties, or their duly appointed agents or legal representatives, other than in exceptional circumstances if, after examining the case, it considers this necessary.” In the past, CCF questioned the need to exercise the power to hold hearings, reasoning that “given INTERPOL’s limited role and the fact that it is not competent to question national arrest warrants, it is difficult to see what benefit could be served by a hearing.” Fair Trials, Strengthening Respect for Human Rights, Strengthening INTERPOL, § 216 (Nov. 2013). Fair Trials International has rightfully disagreed:

“[P]roperly interpreted, Article 3 should include a political motivation test, which requires a more complete assessment of the background of the case, the profiles of the individual and the requesting country, the person’s evidence, and analysis of extradition and asylum decisions. Open discussion could be conducive to all of these. Of course, systemically holding hearings would risk slowing proceedings down, but excluding the possibility altogether needlessly removes a useful option.” Id.

The 2008 CCF Operating Rules were abrogated in 2017 once the Statute and new CCF Operating Rules entered into force. Under the Statute, “[t]he [CCF] Requests Chamber shall examine a request on the basis of written submissions. Hearings may be held only if deemed necessary by the Requests Chamber for the examination of requests.” Therefore, the new rule differs from the old rule in one respect only – it does not limit the Commission to holding hearings in exceptional circumstances and instead gives it the power to grant a hearing whenever it deems it necessary. INTERPOL’s rules did not specify what would constitute “exceptional circumstances” under the now abrogated 2008 CCF Operating Rules, effectively leaving it to the Commission to decide whether such circumstances existed in any particular case. Unfortunately, if the new rule was intended to encourage the Commission to exercise its power to hold hearings, no changes seem to have taken place in this regard – to this day there seems to be no known case in which CCF has held a hearing.

Will the Expansion of INTERPOL’s Stolen and Lost Travel Documents Database Lead to an Expansion of INTERPOL Abuse?

By Yuriy Nemets | February 16, 2021 | Comments 0 Comment

According to the Commission for the Control of INTERPOL’s Files (CCF), some governments have abused INTERPOL’s channels for political and other unlawful purposes even after the organization refused to process their Red Notices and diffusions. In its annual report for 2017, CCF acknowledged that it had “processed requests which highlighted the use of [INTERPOL’s] 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.”

Any INTERPOL member country can add information about a travel document it has issued to the SLTD database, which allows law enforcement around the world, including at border crossings, to check if a document has been reported lost or stolen and take appropriate actions. Information in the SLTD database is also available to INTERPOL’s “trusted partners in the private sector” so that they too can relay a positive ‘hit’ to law enforcement. According to INTERPOL, the SLTD database contains around 89 million records of lost, stolen and revoked travel documents; in 2019 alone, it was searched 3.7 billion times and resulted in 270,000 positive matches.

CCF has called government use of the SLTD database after INTERPOL’s refusal to process their Red Notices and/or diffusions against the same individuals “misuse of INTERPOL’s channels.” CCF has stressed that the organization would delete any such data from the database. Although the CCF 2017 report does not discuss the extent of the abuse of the SLTD database, INTERPOL has recognized that more needs to be done to address the issue. In this regard, it has resolved to “provide INTERPOL members with a limited list of appropriate purposes to record data in that database to avoid any misuse.” In addition, CCF has “insisted on the need to ensure that the definition of ‘revoked travel documents’ is clear enough to prevent the possible misuse of the SLTD database, in particular to locate a person where a diffusion or a notice could not be issued.” CCF has also “invited the General Secretariat to clarify the purpose of the SLTD and of the processing of revoked travel documents in the SLTD standard operating procedures.”

No wonder then that CCF also became concerned when it was subsequently consulted on the creation of a new category of documents, called “invalid,” which would include “expired, damaged or destroyed” travel documents. In its 2018 annual report, CCF warned that this new category could also be “misused or may not include an explanation as to why a document had been invalidated.” According to the report, the INTERPOL General Secretariat “consequently updated the SLTD Standard Operating Procedures in order to clarify the conditions applicable to the quality of the data processed in the SLTD database that are required to comply with INTERPOL’s rules.”

It remains unclear, however, whether or not the amendments made to the SLTD regulations mentioned above have had any meaningful effect. INTERPOL should conduct comprehensive monitoring to prevent abuse of the SLTD database before it occurs, but whether or not such monitoring has been introduced is also an open question.

Location Known: Can INTERPOL Continue to be Involved if the Requesting Government is Aware of the Accused’s Location and, Moreover, if the Accused Cooperates?

By Yuriy Nemets | December 6, 2020 | Comments 0 Comment

During the past several years, the Commission for the Control of INTERPOL’s Files has published a number of its decisions regarding complaints against government use of INTERPOL’s resources. Although these decisions are often published heavily redacted, they provide valuable insight into the Commission’s interpretation of some of the key provisions in the INTERPOL Constitution and the Rules on Data Processing. In addition, with regard to some of the rules, the Commission has published its interpretation more than once, which demonstrates their consistent application by the Commission. In this post, I reflect on one of the most common questions I get in my practice – can a Red Notice or a diffusion continue to circulate via INTERPOL’s channels if the requesting country is aware of the individual’s location?

The Commission has responded to this question in the affirmative, and it has done so in several of its published decisions. The fact that the government knows the individual’s location, even if the individual was the first one to reveal it, does not by itself make the government’s request disseminated through INTERPOL unlawful. The Commission has explained that “[t]he purpose of a red notice is not only to locate a person, but also to request his/her provisional arrest in view of extradition. In this regard, the fact that the Applicant’s location . . . is known to . . . authorities does not undermine as such the lawfulness of the Red Notice.” Therefore, the purpose of a Red Notice or a diffusion is twofold. Establishing an individual’s location achieves only one of the goals, and as such, it does not make the Red Notice or diffusion irrelevant. Following the Commission’s reasoning, it seems logical to conclude that if the accused not only reveals her/his location but also cooperates with the requesting government in its criminal investigation, such cooperation by itself does not invalidate a Red Notice or a diffusion either. This seems important for accused and their attorneys to remember.

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

By Yuriy Nemets | December 19, 2019 | Comments 0 Comment

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

By Yuriy Nemets | July 31, 2019 | Comments 0 Comment

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

By Yuriy Nemets | May 24, 2019 | Comments 0 Comment

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

By Yuriy Nemets | March 28, 2019 | Comments 0 Comment

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

By Yuriy Nemets | February 11, 2019 | Comments 0 Comment

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.

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.

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’

By Yuriy Nemets | February 7, 2019 | Comments 0 Comment

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:

Author: Yuriy Nemets