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INTERPOL has the power and obligation to prevent all abusive government requests from entering its channels, no exceptions

By Yuriy Nemets | July 17, 2023 | Comments 0 Comment

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.”

Yuriy Nemets to speak at the American Bar Association panel ‘Latest Developments in INTERPOL’s and its Member Countries’ Approach to Transnational Repression’

By Yuriy Nemets | July 16, 2023 | Comments 0 Comment

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=

INTERPOL Confirms the Limited Role of Preemptive Requests by Which Individuals Warn the Organization of Impending Government Abuse of its Resources

By Yuriy Nemets | June 19, 2023 | Comments 0 Comment

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.

The INTERPOL General Assembly Has Just Set Its Priorities, and Human Rights is Not One of Them

By Yuriy Nemets | November 29, 2021 | Comments 0 Comment

I don’t recall another year in which INTERPOL received as much criticism from the media and advocacy organizations for its handling of government abuse of its channels – and did so much more to validate that criticism.

This year, the INTERPOL 89^th General Assembly met in Turkey. When the host was announced, many of us expressed our frustration. Turkey is well known for abusing INTERPOL. The most glaring example was reportedly its attempt to put numerous people accused of participating in the failed coup against president Erdogan on the INTERPOL wanted list. As member countries’ delegates were preparing for their trip to Istanbul this year, the Turkish government complained about INTERPOL refusing to cooperate in some of those cases against the Gülen movement. INTERPOL’s rules do not grant countries-hosts of its meetings any privileges when it comes to filling high posts within the organization or voting to amend its rules. However, for a country accused of abusing INTERPOL, the expenses are still worth it – if INTERPOL accepts the invitation, the host country looks accepted as well despite its misconduct.

We then learned that INTERPOL had lifted the “corrective measures” that it imposed on Syria nine years earlier. That announcement from INTERPOL made even bigger news, with numerous voices expressing concern for Syrian refugees whose risk of being detained and extradited had become even more real.

The New Mosque (Yeni Cami) in Istanbul, Turkey

Yet another cause for concern was the UAE and China, both known for abusing INTERPOL, and who both fought to have their nationals elected to the Executive Committee. The INTERPOL president heads the Executive Committee which, among other things, supervises the execution of the General Assembly’s decisions and the General Secretariat’s work. The 89^th General Assembly approved the changes to INTERPOL’s rules that are supposed to make the elections of president and other members of the Executive Committee more transparent and the Code of Conduct for Executive Committee members, all of this only to elect the UAE representative INTERPOL’s new president the next day. This happened despite the serious allegations and harrowing recollections published against the country’s regime. China now has its national on the Executive Committee as well. To complete the sad irony, this Executive Committee will vote to adopt the Code of Conduct for its members presented to it by the General Assembly.

What about the redress mechanism for the victims of INTERPOL abuse? While the General Assembly approved the organization’s budget for 2022, the already strained budget of the Commission for the Control of INTERPOL’s Files responsible for adjudicating complaints from individuals challenging government use of INTERPOL’s resources was left virtually unchanged. This is despite the growing number of cases before the Commission. Finally, the 89^th INTERPOL General Assembly did not consider the much-needed reforms necessary to guarantee victims of INTERPOL abuse due process.

Clearly, the majority of INTERPOL member countries do not take the abuse of the organization’s channels seriously. If they did, the results of the 89^th General Assembly would be very different – it would have selected a different president, passed the reforms to close the loopholes in the INTERPOL redress mechanism and significantly increased the budget of the Commission for the Control of INTERPOL’s Files.

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?

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.

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:

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

By Yuriy Nemets | March 12, 2018 | Comments 0 Comment

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.

On INTERPOL’s former General Counsel’s statement regarding EU calls to reform INTERPOL

By Yuriy Nemets | December 28, 2017 | Comments 0 Comment

On October 5, 2017, EUObserver reported that the European Union was seeking a dialogue with INTERPOL to find a way to stop the abuse of its resources by countries that use INTERPOL to persecute political opponents and other victims of unlawful criminal prosecutions. The call for negotiations followed the recent detention of Dogan Akhanli, a German-Turkish writer, and Hamza Yalcin, a Swedish-Turkish journalist. Spanish authorities detained them at Turkey’s request disseminated via INTERPOL’s channels. Akhanli and Yalcin fled Turkey many years ago and were granted refugee status in Europe.

In seeking the dialogue, the European Union leaders expressed their desire for a proper review of INTERPOL red notices. They have also indicated that the need exists for an effective redress mechanism for the victims of INTERPOL abuse.

On October 16, 2017, EUObserver published an op-ed titled ‘INTERPOL and the EU: don’t play politics.’ Its authors, Rutsel Sylvestre J. Martha, an INTERPOL’s former General Counsel, and Stephen Bailey, argue that the INTERPOL General Secretariat already conducts a proper review of red notices before their publication and an effective redress mechanism is already in place.

Indeed, INTERPOL must ensure that red notices comply with its rules. Every year INTERPOL processes numerous requests to locate and detain individuals. It would seem possible for the organization to review every red notice for its compliance with such minimum requirements as the nature of the charge behind the notice and make sure the identity particulars, the description of the facts of the case, and a reference to the country’s criminal statute and a valid arrest warrant accompany the red notice. However, taking into consideration the high volume of information INTERPOL processes on a regular basis, it cannot possibly look into all the circumstances behind each and every red notice to make sure none is politically motivated or doesn’t otherwise violate the organization’s rules prior to its publication. This is also true with regard to the compliance review of randomly selected already published red notices. In addition, the authors of the op-ed don’t mention the so-called “diffusions,” which, like red notices, may be used as requests to locate and detain individuals for the purpose of their extradition and may be disseminated among a large number of INTERPOL member countries. However, unlike red notices, governments can send diffusions via INTERPOL’s channels without any prior review by the General Secretariat. Because of the lack of oversight prior to their publication, diffusions represent a more attractive means for governments that abuse INTERPOL’s resources, and as such, they pose an even higher risk than red notices.

In claiming there is an effective redress mechanism for the victims of INTERPOL abuse, the authors of the op-ed mention the right of an individual to access, correct, and/or delete information in INTERPOL’s files. It is important to remember that the right to access the information in the organization’s databases is subject to the government’s consent to disclose such information to the individual. This is also the case with any evidence and other information the government submits to the Commission for the Control of INTERPOL’s Files, an independent body with the exclusive power to adjudicate requests from individuals seeking access to, correction, and/or deletion of information in INTERPOL’s databases. The Commission discloses the evidence or other information the government submits in response to the individual’s request if the government agrees to such disclosure.

The authors of the op-ed rightfully point to the reforms INTERPOL has recently carried out to expand the rights of individuals. However, despite the reforms, the existing redress mechanism still lacks some crucial safeguards inherent to the modern democratic due process, such as the right to a hearing and the right to appeal. In June 2014, the INTERPOL Executive Committee endorsed a new policy on refugees. According to the policy, “in general, the processing of red notices and diffusions against refugees will not be allowed if the following conditions are met: the status of refugee or asylum-seeker has been confirmed, the notice/diffusion has been requested by the country where the individual fears persecution, the granting of refugee status is not based on political grounds vis-a-vis the requesting country.” Although the policy is a significant step towards protection of refugees from INTERPOL abuse, it needs improvements. For example, the policy doesn’t grant refugees an exception to the rule that INTERPOL doesn’t disclose whether there is information about the individual in its databases without the government’s consent. As a result, refugees, like other individuals, often learn about a red notice or diffusion against them after they are detained due to the INTERPOL alert. In such cases, the rights provided in the policy come too late. This is one of the reasons why the detention of refugees like Dogan Akhanli and Hamza Yalcin continues despite the fact that the policy has been in place for several years.

Category: Refugees