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?

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.