INTERPOL red notices – a step towards accountability?

Last week INTERPOL rejected a request by Egypt’s Prosecutor General to place Ahmed Shafiq on INTERPOL’s wanted persons (or “red notice”) list. Mr Shafiq, the former Prime Minister of deposed President Hosni Mubarak, ran against the current President Mohammed Morsi in the June 2012 elections. Shortly after losing the election Mr Shafiq was charged with corruption and wasting public money.

INTERPOL’s refusal to comply with Egypt’s request is, in simple terms, international recognition that a judicial charge can be politically motivated. But the refusal is also a significant chapter in the history of challenges to INTERPOL’s procedures for issuing and maintaining red notices.

Traditionally INTERPOL has been perceived as an unaccountable instrument of its Member States, acting uncritically when issuing red notices and exercising no effective supervisory function by way of monitoring their propriety or necessity. That is slowly changing.

Mr Shafiq’s is the latest in a growing number of cases in the past 2-3 years in which INTERPOL has rejected the instructions of a Member State, and in the process acted as a law enforcement organisation which is genuinely independent from its Member States. It follows recent high-profile decisions to remove red notices for Indonesian political activist Benny Wenda and a quintet of Venezuelan bankers. INTERPOL decided that the charges against all of these individuals were politically motivated and it would therefore be in breach of Article 3 of its Constitution (which prohibits INTERPOL from undertaing “any intervention of activities of a political, military, religious or racial character”) to maintain the red notices in respect of them.

There is evidence that INTERPOL is exercising self-scrutiny in other ways. I have experience of persuading INTERPOL to remove a red notice for a UK national, who had successfully contested his extradition to the United Arab Emirates (UAE) to face charges of fraud, after the Dubai Prosecutor was unable to persuade INTERPOL that the information held about him complied with Article 12 of its Constitution, which requires that the information processed by the INTERPOL must be “accurate, relevant, not excessive […] and up to date”.

The above decisions have been made possible by campaigns which have highlighted the reality that red notices issued in bad faith (or simply based on inaccurate or out of date information) can cause disproportionate damage to the livelihoods and reputations of those affected. Despite these potential consequences, the procedure for challenging a red notice remains opaque and tortuously slow.

The main route of challenge is to write to the Commission for the Control of INTERPOL’s Files (CCIF) seeking a review. However, the CCIF itself can only offer limited relief. The CCIF can issue recommendations to INTERPOL’s General Secretariat, including that a red notice be removed from the public website, amended or deleted altogether. These recommendations, though usually followed in practice, are not legally binding and can be overturned by a simple majority of the General Assembly, whose proceedings are private. There is no appeal against the decision ultimately taken in response to the CCIF’s recommendations.

Mr Shafiq’s case is a welcome addition to the growing body of cases in which INTERPOL has demonstrated independence from its Member States. But there is still a considerable way to go before INTERPOL can be regarded as a genuinely accountable organisation. INTERPOL reformed its data processing rules in June 2012. Now it must introduce new rules which create a fair, speedy and transparent process through which individuals can seek the removal of improperly issued red notices.

Corker Binning is a law firm specialising in extradition, business crime,  fraud, regulatory litigation and general criminal work. For more information about how we can help you, speak to one of our specialist extradition lawyers on 0207 353 6000.