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08 May 2017

INTERPOL decides to publish decisions on deletions of red notices – another small step towards transparency?

INTERPOL and transparency are not words that tend to appear in the same sentence. But over the course of the past decade, INTERPOL has been inching, slowly and painfully, towards greater transparency.

One of the most recent positive steps is the publication of decisions of the Commission for the Control of INTERPOL’s Files (“CCIF”) as to whether a red notice or diffusion notice should be deleted. This has been achieved as a result of an amendment to the Statute of the CCIF. Article 44 of this Statute, which came into force on 17 March 2017, provides that: “subject to the confidentiality requirements, restrictions and other conditions set forth in the present Statute, the Commission shall endeavour to make its decisions, opinions, recommendations and reports public in all working languages of the Organization.” To date, nine such decisions have been published on INTERPOL’s website (see here). It is envisaged that future decisions will be published on a rolling basis.

The decisions are described as “excerpts”. This is a polite way of saying that they contain no identifying details about the individual who challenged the notice, where the criminal investigation occurred, the nature of the evidence relied upon against the individual, or the nature of any rebuttal evidence supplied by the individual. Without these important details, the decisions do not have the status of a body of case law, because a person challenging a notice cannot argue by parity of reasoning that a published decision is binding or persuasive authority in relation to his or her case. Nonetheless, the decisions identify the legal arguments advanced in support of removing the notice (i.e. the Articles of INTERPOL’s Constitution or Rules on the Processing of Data he or she relied upon) and provide an insight into how the CCIF analysed the arguments.

What can be gleaned from these carefully redacted decisions?

The decisions tell us certain things which any experienced lawyer liaising with INTERPOL should already know. For example, that the CCIF places little weight on generic reports that describe problems with a country’s criminal justice system. Instead there must be specific information that sheds light on whether INTERPOL’s legal framework has been complied with in a particular case. To take another example: a decision barring extradition is not itself determinative of whether the CCIF will recommend the removal of the notice. Thus if a court bars extradition on the basis that the criminal proceedings are politically motivated, the CCIF is at liberty to take a different view as to whether, according to its own test, the “offence is of a predominantly political character”.

But the decisions also disclose points which are perhaps less widely understood, and which provide those challenging a red or diffusion notice with a better steer as to how their arguments should be formulated.

First, a fertile line of attack may be to challenge whether the notice has been issued with a view to extradition (as required by Article 84(2) of INTERPOL’s Rules for the Processing of Data). This will be relevant where: (a) the individual has not been charged, (b) the country is, in fact, seeking the cross-border transfer of the individual so that he or she may assist in an investigation or give evidence in proceedings under an MLAT, or (c) there is evidence that the country knows where the individual is but has not sought extradition. Running this argument is double-edged, however, because nearly all information communicated to INTERPOL on behalf of the individual will be shared with the country that requested the notice. In some cases, therefore, making representations to INTERPOL would be to poke the sleeping dog – it might precipitate a charging decision and/or extradition request when neither would have been forthcoming.

Second, there is nothing to be lost from making multiple attempts at removing the notice. Article 19 of the Operating Rules of the Commission for the Control of INTERPOL’s Files provides that the party seeking re-examination must establish: “the discovery of a fact which would have probably led to a different conclusion if that fact had been known at the time the request was processed.” The “new fact” presented in one of the published decisions led the CCIF to conclude that a different conclusion could have been reached when the individual first requested the removal of the notice. In response to the “new fact”, the CCIF sought additional information from the country that had requested the notice, so that it could make an informed decision having examined the reconfigured positions of both sides. (Regrettably, the excerpt of the decision does not record what this informed decision ultimately was).

Third, the CCIF examines carefully the evidence adduced by a country in support of a notice, in order to determine the merits of a defence argument to the effect that the notice has been issued in response to a civil rather than a criminal dispute (Article 83(1)(a)(i) of INTERPOL’s Rules for the Processing of Data provides that: “Red notices may not be published for offences relating to private matters and for offense originating from a violation of laws or regulations of an administrative nature…”). In one of the published decisions – which concerned an allegation of fraud arising from a bounced cheque – this was the sole argument relied upon by the individual. The argument was successful because the CCIF was not satisfied that the country had given a clear explanation of the “circumstances and signing of the cheque and its cashing”, nor a detailed explanation as to how the individual could have “committed fraud or any other criminal offence as a result of signing the cheque.” It is notable that this individual did not have the benefit of a positive immigration or extradition decision, nor any expert evidence, which might have lent independent weight to his argument. Rather, his argument appears to have been a matter of pure legal submission – an argument INTERPOL resolved entirely in his favour by reference to deficiencies in the prosecution evidence which indicated an absence of criminality. It is sometimes said that INTERPOL will not examine the evidential merits of a prosecution case, but that is precisely what happened here.

These decisions are encouraging: they restore some faith in INTERPOL’s willingness not to accept at face value the allegations made by some of its member states. They suggest that the CCIF exercises independent scrutiny in appropriate cases. As more decisions are published on INTERPOL’s website, defence lawyers will benefit from an ever greater understanding of how the CCIF analyses and applies INTERPOL’s legal texts.

But the reality is that individuals are still fighting a one-sided battle in making representations to INTERPOL to remove a red or diffusion notice. The countries where they are being investigated will be provided with nearly all information the individuals supply to INTERPOL, but the individuals will see only glimpses of what the countries supply to INTERPOL. This imbalance of power permits INTERPOL’s continued exploitation.

One way to redress this imbalance would be as follows. Just as INTERPOL agreed in 2015 that it would delete a notice if the individual had been granted refugee status, it should delete a notice if an extradition court has issued a final and reasoned decision to the effect that the criminal proceedings giving rise to the notice are politically motivated (or improperly motivated by any other considerations arising under the Refugee Convention) or that they are an abuse of process. This would restore the purposive connection between red notices and extradition, and ensure that individuals cannot become a virtual prisoner in the state where they have successfully contested extradition.

Similar (but not identical) recommendations were made on 29 March 2017 by the Committee for Legal Affairs and Human Rights of the Council of Europe (see here). Their report welcomed the small steps taken by INTERPOL towards transparency. But overall, the report was highly critical of how much more needs to be done to ensure that INTERPOL is not abused – and is not seen to be abused – by its less scrupulous member states.

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