Yuriy Nemets, Author at Red Notice Abuse Report

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.

NEMETS Launches a Webinar Series Dedicated to the Problem of INTERPOL Abuse and Defending the Rights of Individuals on the International Wanted List

By Yuriy Nemets | December 18, 2022 | Comments 0 Comment

NEMETS Law Firm has launched a webinar series dedicated to the problem of Red Notice abuse and other abuse of INTERPOL’s channels. In this regard, Yuriy Nemets, the firm’s managing member, said: “INTERPOL defense is a fairly young area of law. Due to its relatively young age, there are very few sources from which individuals who become targets of Red Notices and other government requests disseminated via INTERPOL’s channels can gather information about their rights. It is also a very complex area of legal practice. Over the years, many of INTERPOL’s initiatives expanding its role as the most effective hub for international police cooperation have created new dangers for the victims of abuse, while INTERPOL’s lawmaking has largely failed to keep up and ensure that this expanding role is in compliance with the organization’s human rights obligations. At the same time, INTERPOL’s application of its rules in cases of abuse has formed a substantial body of ‘case law’ that has provided a valuable insight for legal professionals while leaving many important questions unanswered. It is because of its depth and intricacies that we are launching this series. Our goal is to raise awareness, talk about the problems that the victims of Red Notice and other INTERPOL abuse face and, hopefully, find and suggest solutions to these problems.”

You can watch the first of the webinar series here: https://www.youtube.com/watch?v=BJIxNenMejE&t=23s

For Some INTERPOL Member Countries, Suspension and Expulsion Might Soon Become Real After All

By Yuriy Nemets | November 8, 2022 | Comments 0 Comment

When it comes to INTERPOL abuse, the most noticeable item on the agenda of the 90^th INTERPOL General Assembly (October 18-21, 2022) was the proposal to amend the INTERPOL Constitution to provide for the suspension and expulsion of member countries from the organization. Currently, neither the Constitution nor any other INTERPOL rule allows for this. The strictest sanction an INTERPOL member country may face is a long-term suspension of “processing” rights, specifically, the right to record, consult and download data in (from) INTERPOL’s databases. Such suspension, however, would not affect a country’s other powers as a member of the organization.

Calls to expel states-abusers are nothing new. They have been growing for years, even after INTERPOL carried out several reforms to its redress mechanism in 2016-17. To the public, the organization has been presenting the reforms as a significant step towards the protection of victims of the abuse of its resources. In practice, however, the abuse does not seem to be receding at all, if not the other way around. That is because the reforms have closed very few, of many, loopholes that contribute to the abuse, and since then, INTERPOL has demonstrated no readiness for any further steps towards curbing it.

In Resolution GA-2022-90-RES-02, the 90^th General Assembly tasks the Working Group to Review Legal Provisions Relating to INTERPOL’s Governance Bodies with “mak[ing] comprehensive review of and propos[ing] modifications to INTERPOL’s legal texts in order to put in place criteria for the expulsion or suspension of a Member and the corresponding procedure that are in conformity with the current practice of international organizations and which would ensure transparency and consistency of the process.” Clearly, when it comes to suspension or expulsion of its members, INTERPOL does not want to stand out among other international organizations.

It is unlikely, however, that INTERPOL will be able to borrow an already existing mechanism without significantly tailoring it to its unique mission. Expulsion or suspension of just one member country may negatively affect regional and global security. In addition to the information about individuals wanted for criminal prosecutions, INTERPOL provides access to data that helps to identify missing persons, rescue crime victims as well as other information crucial for legitimate criminal investigations. That is why, most likely, the Working Group will propose a very high threshold for both suspension and expulsion of member states. However, whatever the Working Group’s proposal may be, the General Assembly has made it very clear — there must be a path to suspend and expel a member state. Accordingly, the Working Group is unlikely to advise against such a path, and it is now faced with a very challenging task.

A mechanism for suspension or expulsion of member countries is bound to force INTERPOL to address yet another important issue, its lack of transparency. The General Assembly’s Resolution calls for “transparency” in the suspension and expulsion process. However, there can be no transparency without INTERPOL publishing the information about the full extent of the abuse of its resources (including the names of countries-abusers and the nature and number of their violations), which the organization has never done before. INTERPOL is the only source of such information, and, to this day, it has published virtually nothing in this regard. It would be impossible for INTERPOL to achieve the desired transparency without finally, after years of unpunished abuse, becoming fully transparent about those who use its resources to persecute rather than prosecute.

Notices and Diffusions Task Force: The Most Secretive Part of INTERPOL’s Redress Mechanism

By Yuriy Nemets | June 1, 2022 | Comments 0 Comment

In August 2017, just over two weeks apart, two European Union citizens, writer Dogan Akhanli and journalist Hamza Yalçin, both critical of Turkish President Recep Tayyip Erdogan’s regime, were detained in Spain. Spanish authorities acted on requests that Turkey was able to disseminate via INTERPOL following what Erdogan branded a failed coup against him. After these incidents, a meeting between European Union and INTERPOL officials took place during which the latter reportedly assured their counterparts that the INTERPOL Notices and Diffusions Task Force (NDTF) was reviewing 40,000 Red Notices to ensure that they were not politically motivated. At the time, I wrote about my doubts regarding the NDTF activities. Among the things I questioned was how INTERPOL was planning on conducting such a massive review in an effective and objective manner. A comprehensive examination of 40,000 government requests would be an enormous undertaking, even if INTERPOL significantly increased its staff and funding. Such a review would require INTERPOL to go far beyond what is already recorded in its databases, which is the very limited information that governments must produce to have their requests disseminated via the organization’s channels. In most cases, such information does not allow INTERPOL to ensure that a government request complies with its rules. However, it was not only the high volume of information that the NDTF would have to go through that made me question its activities, but the source of such information as well. Because INTERPOL is prohibited from sharing with an individual any information about her or him without the government’s consent, or even the existence of such information in the organization’s databases, the NDTF would often have to look to the government alone for any information about a particular case. It is hard to imagine a country seeking to abuse INTERPOL and at the same time willing to produce objective information to help the organization to conduct a comprehensive assessment of the country’s use of its channels.

Four and a half years later, my doubts concerning the NDTF have anything but disappeared. I continue to consider it part of INTERPOL’s public relations strategy in the face of the growing discontent over the organization’s involvement in human rights violations as opposed to a meaningful step towards the protection of victims of abuse of INTERPOL’s channels. There is virtually no information about the NDTF in the public domain. The only thing that INTERPOL has allowed the public to learn is that the NDTF consists of several dozen staff tasked with assessing government requests at its own initiative. There is no publicly available information on the requirements that the NDTF staff must meet or the methodologies or procedures that it must follow, if any. Moreover, INTERPOL has not disclosed the results of the NDTF work, which begs the question: is the NDTF effective at all? How many government requests has the NDTF reviewed since it was established, how many of them has it found to be in violation of INTERPOL’s rules, what is the nature of such violations, who are the countries-abusers? All these questions remain unanswered. Moreover, I am not aware of any case in which the NDTF has informed the individual concerned about the results of its review.

Why not bring NDTF, which INTERPOL promotes as an important addition to its redress mechanism, out of the shadows? Why not adopt and publish requirements and procedures that the NDTF must follow as well as the information about the results of its work? Unlike the NDTF, the Commission for the Control of INTERPOL’s Files (CCF), another part of the INTERPOL redress mechanism, has a statute, rules of procedure, and it publishes excerpts from its decisions in individual cases, thereby providing practitioners with some insight into its application of INTERPOL’s rules. Although CCF is still far from achieving its much-needed transparency, the NDTF does not have even one percent of the information published about it that is publicly available about CCF. Under such circumstances, the NDTF cannot be seen as even remotely meaningful in the fight against INTERPOL abuse.

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?

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.

Author: Yuriy Nemets