Last year's
Strengthening respect for human rights, strengthening INTERPOL report [
PDF] by Fair Trials International states that
Police, judges and prosecutors across the globe should work together to fight serious crime. Mechanisms designed to achieve this, however, must be protected from abuse to ensure that their credibility is not undermined and to prevent unjustified violations of individuals’ rights. This Report is designed to assist INTERPOL, the world’s largest police cooperation body, in meeting this challenge.
'Red Notices’, international wanted person alerts published by INTERPOL at national authorities’ request, come with considerable human impact: arrest, detention, frozen freedom of movement, employment problems, and reputational and financial harm. These interferences with basic rights can, of course, be justified when INTERPOL acts to combat international crime. However, our casework suggests that countries are, in fact, using INTERPOL’s systems against exiled political opponents, usually refugees, and based on corrupt criminal proceedings, pointing to a structural problem. We have identified two key areas for reform.
First, INTERPOL’s protections against abuse are ineffective. It assumes that Red Notices are requested in good faith and appears not to review these requests rigorously enough. Its interpretation of its cardinal rule on the exclusion of political matters is unclear, but appears to be out of step with international asylum and extradition law. General Secretariat review also happens only after national authorities have disseminated Red Notices in temporary form across the globe using INTERPOL’s ‘i-link’ system, creating a permanent risk to individuals even if the General Secretariat refuses the Red Notice. Some published Red Notices also stay in place despite extradition and asylum decisions recognising the political nature of the case. This report therefore recommends that:
(a) Combat persecution: INTERPOL should refuse or delete Red Notices where it has substantial grounds to believe the person is being prosecuted for political reasons. National asylum and extradition decisions should, in appropriate cases, be considered decisive.
(b) Thorough reviews: INTERPOL should require national authorities to provide an arrest warrant before they can obtain a Red Notice, and should conduct a thorough review of Red Notice requests and Diffusions against human rights reports and public information.
(c) Draft Red Notices only in urgency: INTERPOL should ensure that Red Notice requests are not visible to other NCBs while under review except in urgent cases; the NCB should justify its use of the urgency exception and INTERPOL should monitor exception usage closely.
(d) Continual review: INTERPOL should systematically follow up with countries which have reported arrests based on Red Notices, six or 12 months after it is informed of an arrest, and enquire as to the outcome of the proceedings following the arrest.
Secondly, those affected by Red Notices currently lack an opportunity to challenge the dissemination of their information through INTERPOL’s databases in a fair, transparent process. INTERPOL, which has apparently not, to date, been subjected to the jurisdiction of any court, must provide alternative avenues of redress and effective remedies for those it affects. However, the Commission for the Control of INTERPOL’s Files (CCF), its existing supervisory authority, is a data protection body unsuited to this responsibility and lacks essential procedural guarantees. INTERPOL’s judicial immunity is thus currently unjustified. This Report therefore recommends:
(a) Reform the CCF: INTERPOL should develop the competence, expertise and procedures of the CCF to ensure it is able to provide adequate redress for those directly affected by INTERPOL’s activities. It should explore the idea of creating a separate chamber of the CCF dedicated to handling complaints, leaving the existing CCF to advise horizontally on data protection issues.
(b) Ensure basic standards of due process: INTERPOL should ensure that reforms of the procedures of the CCF provide for the following essential safeguards: (i) adversarial proceedings with a disclosure process; (ii) oral hearings in appropriate cases; (iii) binding, reasoned decisions, which should be published; and (iv) a right to challenge adverse decisions.
If INTERPOL implements these reforms, police will spend less time arresting refugees and political exiles, at great human cost to those involved, and more time arresting criminals facing legitimate prosecutions. This will enhance confidence in the Red Notice system and, thereby, INTERPOL’s credibility with national authorities.
The report features the following conclusions and recommendations -
General Conclusions
Red Notices, despite their nature as mere electronic alerts, bring about concrete consequences and often have serious human impact, placing individuals at risk of arrest and lengthy detention, restricting freedom of movement, and impacting upon the private and family life of the individual concerned.
INTERPOL’s rules properly seek to exclude inappropriate uses of its systems. They seek to restrict the human impact associated with Red Notices to only such cases as fall within INTERPOL’s remit, ensuring that human rights restrictions caused by INTERPOL are justified and proportionate. This conclusion is, however, restricted to the rules themselves, as distinct from their application in practice.
The Problem of Abuse
In practice, INTERPOL’s Red Notices are being used as political tools by NCBs, and are being issued and maintained on the basis of criminal cases which have been recognised as being politically-motivated by extradition courts and asylum authorities.
INTERPOL’s systems are also being used in respect of criminal cases which arise as a result of prosecutorial and judicial corruption, sometimes deriving from private disputes with powerful individuals. INTERPOL cannot necessarily be expected to detect such abuses ab initio, but those affected need an opportunity to present their complaint before an independent authority.
In some cases, countries are failing to seek extradition when this would be possible. This represents a misuse of a Red Notice and breaches INTERPOL’s rules, and may provide evidence of political abuse. INTERPOL recognises this as an abuse.
Detecting and Preventing Abuse
INTERPOL’s interpretation and application of Article 3 is unclear. We recommend that INTERPOL provide detailed information on how it assesses political motivation and the significance it attaches to extradition refusals and asylum grants.
On the basis of the available information, it appears that INTERPOL is applying a test under Article 3 which is out of step with international asylum and extradition law. We recommend that INTERPOL adopt the test in Article 3(b) of the UN Model Extradition Treaty as it is applied by extradition courts. As a first step, INTERPOL could commission and publish an expert study analysing relevant international extradition and asylum law and its own obligations.
There is insufficient information available to understand how INTERPOL approaches the task of reviewing Red Notice requests and Diffusions after they have been published. We recommend that INTERPOL make more information publicly available about this, within reasonable limits.
Proactive background research into the requesting country’s human rights record and the circumstances of the case are essential to detecting political motivation cases. We recommend INTERPOL provide more disclosure about the extent to which it does this.
The provision of arrest warrants may help detect cases of abuse. We recommend that INTERPOL require NCBs to supply arrest warrants, either at the point of requesting a notice or promptly thereafter if the matter is urgent. INTERPOL should also insist upon complete factual circumstances being provided in Red Notice requests and Diffusions.
The i-link system, allowing NCBs to issue draft Red Notices, unrealistically assumed that all NCBs will respect INTERPOL’s rules. This said, human checks within 24 hours minimise the risk of arrest on the basis of abusive Draft Red Notices. However, there remains a risk of NCBs accessing and copying Draft Red Notices, which may create a permanent risk to the person concerned even if INTERPOL eventually refuses the Red Notice request.
We recommend that INTERPOL change the standard process of the i-link system so that Draft Red Notices are, by default, not visible to other NCBs while they are under review by the General Secretariat. In urgent cases, the NCB should be able to push an ‘override’ button, providing an explanation of the circumstances justifying this. The General Secretariat and CCF would then be required to assess carefully whether this power was being used appropriately.
We recommend the adoption of a clear rule requiring the deletion of a Red Notice or Diffusion when either (a) a request for extradition based on the proceedings giving rise to the Red Notice/Diffusion has been rejected on political motivation grounds or (b) asylum has been granted under the 1951 Convention on the basis of the of the criminal proceedings giving rise to the Red Notice/Diffusion.
We recommend that, where the extradition refusal or asylum grant is made on the basis of criminal allegations which are not the same as those giving rise to the Red Notice, this should give rise to a strong presumption in favour of deleting the Red Notice.
In either case, the NCB concerned should have the opportunity to bring information to the attention of INTERPOL in order to maintain the Red Notice. However, the burden should be on the NCB to justify why neither of the above rules should apply.
It is not clear how INTERPOL understands the significance of a grant of international protection or a refusal of extradition on human rights grounds for the validity of a Red Notice or Diffusion. We recommend that INTERPOL publish a Repository of Practice on the interpretation and application of Article 2 of its Constitution.
We recommend that INTERPOL institute a practice whereby the General Secretariat, when informed of an arrest, systematically follows up with the NCB of the arresting country either six or 12 months after the event, and asks standard questions as to whether an extradition request was made and whether this was accepted or refused, and on what grounds.
Sanctions for misuse of INTERPOL’s systems can play a part in preventing future abuses. We recommend that INTERPOL explain what criteria are applied to determine when an NCB has failed to fulfil its obligations, and how many times this power has been used.
Creating Effective Remedies
Given the human impact of Red Notices and Diffusions, those affected must have access to effective remedies to obtain redress when NCBs abuse INTERPOL’s systems.
We conclude that, in so far as INTERPOL currently escapes the jurisdiction of national courts, it is under a responsibility, in accordance with Article 2 of its Constitution, to provide effective remedies within its own internal structure. This is also a condition of its judicial immunity.
The CCF, in its broader role of advising INTERPOL on a horizontal basis, appears to be working responsibly. This conclusion is, however, without prejudice to our assessment of its function of handling individual complaints.
The ability to withhold disclosure is not inherently objectionable, provided the exemptions recognised by the CCF are interpreted broadly so as to enable a person who has been arrested to access their file, even if they do not possess documents specifically mentioning INTERPOL. However, the access process works far too slowly, because NCBs do not respond swiftly enough to the CCF’s enquiries.
We recommend that the CCF and/or INTERPOL establish a clear rule requiring NCBs to respond to access requests within one calendar month. Failure to comply with this time limit should result in disclosure of the full file and, thereafter, deletion of the information.
The CCF, in handling complaints requesting the deletion of information, falls far short of basic standards of fairness, effectiveness and independence. In light of these shortcomings, INTERPOL’s judicial immunity is currently unjustifiable.
The CCF’s failure to meet basic standards in the processing of individual complaints results from its relatively weak position within INTERPOL, in particular its meagre resources and over- dependence on the General Secretariat for finance and legal expertise. It is also essentially a data protection body required to perform the role of a specialised human rights tribunal.
We recommend that INTERPOL seek to enhance the competence and expertise role of the CCF, and develop its procedures to be more transparent, adversarial, and effective. We suggest that INTERPOL explore the idea of creating a separate chamber of the CCF, responsible for handling complaints. Reforms of the complaints procedure should ensure, as a minimum, (i) a functioning disclosure system, (ii) a right to be heard in appropriate cases, (iii) binding and reasoned decisions, which should be published on INTERPOL’s website subject to necessary anonymisation, and (iv) a requirement for NCBs to cooperate so as to achieve reasonable time frames for proceedings.
