Parallel Criminal Prosecutions and Conflicting Extradition Requests: Their Effect on the Legitimacy of Government Requests Disseminated via INTERPOL’s Channels

In one of its recently published decision excerpts, the Commission for the Control of INTERPOL’s Files considered whether a government request targeting an individual-subject to parallel criminal prosecutions violates INTERPOL’s rules.  The case at issue concerned an individual wanted for criminal prosecution by two countries, the country-source of data recorded in INTERPOL’s files and the country of his nationality, based on the same “facts and charges.”  The individual was detained in a third country at the request of the country-source of data.  However, the country where the individual was detained received an extradition request from the country of the individual’s nationality as well.  He was eventually extradited to the latter.

In his complaint, the individual argued that the diffusion violated the requirement that the processing of data may only be carried out for a “given, explicit purpose which is in conformity with the Organization’s aims and activities” (Articles 10 and 97 of INTERPOL’s Rules on the Processing of Data (RPD)) and the principle of ne bis in idem (Article 2 of the INTERPOL Constitution).  Not only did the county-source of data and the country of the individual’s nationality ignore each other’s requests for the transfer of criminal proceedings but they failed to respect each other’s requests to share the results of their respective investigations as well.  This lack of cooperation eventually resulted in the country of the individual’s nationality dismissing the charges for lack of evidence.

The Commission has ruled that the “purpose of the Diffusion remains valid, and the existence of the parallel proceedings in [the country of the individual’s nationality] for the same facts and charges raise neither concern for a breach of the non bis in idem principle nor for a lack of interest for the purposes of international police cooperation.”  The Commission has concluded that the diffusion does not lack a valid purpose, reasoning that the country-source of data has fulfilled its obligation to request the individual’s arrest and extradition and has taken active steps toward achieving this purpose.  The Commission has also disagreed with the argument that the country-source of data has failed to fulfill the purpose of its diffusion when it denied the other country’s request to transfer the proceedings.  In this regard, the Commission “emphasize[d] that there is no obligation under INTERPOL’s rules for the [country-source of data’s] authorities to forgo their sovereign right to prosecute [the individual] under the territorial principle of jurisdiction, in favor of a transfer of proceedings to another country.”  In disagreeing with the claim that the diffusion violates the principle of ne bis in idem, the Commission has reasoned that the parallel criminal prosecutions are based on the “established principles of territorial and national jurisdiction,” neither country has agreed to transfer the proceedings, and, therefore, the principle of ne bis in idem does not apply in this case.

In its decision, the Commission also considers whether conflicting extradition requests violate Article 35 of the RPD which requires that “data are of interest for the purposes of international police cooperation.” In this case, the Commission has concluded that “an INTERPOL member country’s response to conflicting extradition requests does not have a substantial impact on the interest of the data under Article 35 of the RPD, in particular because there are no elements in [this] case to suggest that [the individual’s] extradition to the country-source of data, if located and arrested in another country, would be improbable.” Nevertheless, the Commission has indicated that parallel proceedings should not be entirely ignored for the purposes of international police cooperation and ruled to inform the Organization’s member countries of the existence of these parallel proceedings in a caveat to the government request recorded in INTERPOL’s files, leaving it to the member countries’ discretion whether to take this information into consideration during international police cooperation.