This is the second in a series of posts by guest author Lisa Ould Aklouche*

Following the previous post about China’s violation of its obligations to INTERPOL regarding due process rights and INTERPOL’s lackluster response to those violations, the question of what INTERPOL can do about it bears consideration.

First,  INTERPOL could exercise pressure on those member countries to commit to their due process rights of individuals obligations by changing its approach to Red Notice approval.

Beforehand, we must reiterate that every Red Notice request is required to be checked by a specialized task force to ensure its compliance with INTERPOL’s rules. This review takes into account information available at the time of publication. Whenever new and relevant information is brought to the attention of the General Secretariat after a Red Notice has been issued, INTERPOL advises that the task force re-examines the case.

According to Article 86 of INTERPOL’s Rules on the Processing of Data :

“The General Secretariat shall conduct a legal review of all Red Notices prior to their publication to ensure compliance with Interpol’s Constitution and Rules, in particular with Articles 2 and 3 of Interpol’s Constitution.”

As a reminder, Article 2 states that INTERPOL shall conduct its aim in the spirit of the Universal Declaration of Human Rights.

Therefore, the first action conducted by INTERPOL, through the General Secretariat, could be to pay special attention to this legal review and filter Red Notices issued from countries that have been violating due process rights of individuals.

Additionally, the General Secretariat could treat those Red Notices with greater suspicion and ask for more details and guarantee regarding the human rights conditions under which the defendant would be treated if the Red Notice was published. One way to do this would be to suspend any form of cooperation and systematically refuse to publish Red Notices issued from countries that refuse to commit with their individual human rights commitments.

INTERPOL could also sanction countries that do not commit to the organizations’s rules. More precisely, the General Secretariat can take correction action against a National Central Bureau that does not fulfill its obligations, under the provision of Article 131 of  INTERPOL’s rules on the processing of data. Those correctives measures are the supervision of the processing operations carried out by the Nationals Central Bureau on international entity; the suspension of their access rights; as well as the conduct of an assessment team.

Moreover, the General Secretariat may also send to the National Central Bureaus its recommendations related to the implementation of the rules with a view to helping them; suspend their processing rights, after the submission to the Executive Committee; and conduct as many reminders as necessary about their role and responsibilities connected with the data they process in the Interpol information system.

The corrective measures available under INTERPOL’s rules are rather limited, which leaves few prerogatives to the General Secretariat to sanction the violation of the organization’s rules. However, they do exist and they can and should be enforced.

As always, comments and questions are welcomed.

** Ms. Ould-Aklouche holds a master’s degree in French law. She can be reached at lisa.ould.aklouche@gmail.com.

This is the first in a series of posts by guest author Lisa Ould-Aklouche*

INTERPOL’s former president, Meng Hongwei,  was arrested in China in September of 2018. His wife, Grace Meng, believes that his arrest was politically motivated, considering that Mr. Meng was known for his reformist views. Since his arrest, he has been reportedly unable to speak or meet with his attorneys. If that is the case, it signifies that China is not willing to uphold its obligations to INTERPOL.

Additionally, in China, newly enacted legislation allows for investigations against public officials and members of the Communist Party are conducted secretly, without access to legal counsel or guarantee to fundamental human rights.

China’s obligation to uphold the due process rights of individuals

It is worth recalling that INTERPOL is an intergovernmental organization that is governed by international law.

Article 2 (1) of the Constitution of INTERPOL, INTERPOL’s main legal instrument, states that INTERPOL aims to :

“Ensure and promote the widest possible mutual assistance between all criminal police authorities within the limits of the laws existing in the different countries and in the spirit of the Universal Declaration of Human Rights (UDHR)”

China is a signatory of the UDHR, as well as one of its drafters.

Article 10 provides that:

“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

Article 11 provides that:

(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence…

If Chinese officials are indeed preventing accused individuals from having meaningful access to counsel or fair and transparent proceedings, China is not meeting its commitments to fundamental human rights legislation, and consequently, is not meeting its commitments to INTERPOL.

China’s request for coordination on INTERPOL’s public statements

Chinese authorities seem particularly attentive to the way in which INTERPOL communicates on this sensitive subject. While transmitting the letter of resignation attributed to Mr. Meng, Le Monde reports that the Chinese Ministry of Public Security stressed that Interpol was “kindly requested to continue to coordinate with the Chinese authorities on communication on this subject and to inform them of any information or comment that may be made public by the organization or one of its representatives.”

INTERPOL’s  only statement on this subject, aside from its report of his resignation, and its statement regarding assurances from China regarding Mr. Meng’s well-being is as follows:

We are aware of media reports in connection with the alleged disappearance of INTERPOL President Meng Hongwei.

This is a matter for the relevant authorities in both France and China.

Jürgen Stock, INTERPOL Secretary General, is the full time official responsible for the day to day running of the Organization.

INTERPOL’s General Secretariat headquarters will not comment further.

So why would INTERPOL decline to express clear policy statements that might upset the Chinese authorities? The question of INTERPOL’s financial dependence can be raised. Indeed, it has to be noted that in 2019, China is the 7th largest contributor to the funding of INTERPOL (with more than 2 millions of dollars funded, representing 3.7 % of the total amount funded by the statutory contributions ). INTERPOL’s funding statements indicate that China’s financial contribution has doubled in almost ten years (it was 1,110,853 dollars in 2010) .

As a consequence of its inaction, INTERPOL gives the appearace that it has been  weakened by political pressure, which might directly affect its impartiality. Moreover, if INTERPOL is impotent to ensure its own legal principles for the benefit of  its own president, how strongly can it be dedicated to ensuring them towards ordinary citizens of its member countries?

As always, comments and questions are welcomed.

* Ms. Ould-Aklouche holds a master’s degree in French law. She can be reached at lisa.ould.aklouche@gmail.com

Clients frequently ask how they can have an INTERPOL Red Notice if they are not listed on the Wanted page of INTERPOL’s website.

The answer is that the vast majority of Red Notices are unpublished. INTERPOL’s currently available data, here, tells us that

“[t]here are currently approximately 58,000 valid Red Notices, of which some 7,000 are public.”

With less than ten percent of Red Notices being published, this means that approximately 51,000 people are walking around  the globe not knowing that they are listed as wanted in INTERPOL’s databases.

Obviously, it is more efficient for law enforcement officials to apprehend a subject who is unaware that he is being sought and who therefore travels more freely. Those who are publicly listed as wanted may decide to limit their travel or to seek removal of their Red Notices if they were improperly requested.

As always, comments and questions are welcomed.

INTERPOL’s CCF (the Commission for the Control of INTERPOL’s Files) has made its most recent Annual Report available online, here.  In the 2017 Annual Report, which was officially published at the 2018 General Assembly meeting, the CCF covered a variety of topics, from recent statutory changes to the duties of the two chambers.

Among the most interesting topics for an INTERPOL practitioner is the CCF’s treatment of some member countries who have attempted to circumvent the CCF’s rulings on previous cases. In paragraphs 57 and 58 of the report, the Commission recognizes that certain countries do, in fact, violate the spirit and effect of those rulings:

57. Misuse of INTERPOL’s channels: The Commission dealt with cases where the sources of data
have sent a diffusion to INTERPOL members to request the arrest of an individual, whereas a
request for a red notice has previously been refused. It also processed requests which
highlighted the use of the SLTD database where a diffusion or a notice to arrest a person was
considered not to comply with INTERPOL’s rules.
58. These cases raised questions of compliance with INTERPOL’s rules that have been addressed by
the Commission and the General Secretariat. In such cases, the data concerned (if they were
still recorded in INTERPOL’s files when the Commission studied them) are deleted, and the
INTERPOL member countries which received the information are also informed that INTERPOL’s
channels cannot be used in the case concerned.

The good news is that the CCF is acting consistently when it discovers that a member country has improperly utlized a diffusion (which it can circulate itself, without General Secretariat involvement) after a Red Notice has been refused by the General Secretariat.

The bad news is that, in order for these types of violations to be discovered, the unlucky subject of the diffusion often has to discover his or her diffusion status, and this discovery often occurs during travel, and it may lead to detention. Even a brief detention is frightening and disruptive of one’s life.

So the next question is, aside from deleting the diffusion and (again) informing the member country that INTERPOL’s channels cannot be sued in that case, what consequence do these countries face?

As always, comments and questions are welcomed.

One of the primary concerns of people who are Red Notice subjects is what will happen to them if they are detained at a border. A reader recently posed  this variation of that frequent question:

What happens if you do not have a red notice at this moment, but let’s assume you board a flight to another country, and by the time you arrive a red notice has been issued for a crime you are charged with in the country you left?  I assume you will get arrested pending a extradition hearing?
The question is what would happen next as the red notice is issued by a country with no treaty in place with the country to which you have traveled- does that mean you could get released? Or could they still request your extradition?

The question addresses the use of INTERPOL’s tools in relation to the extradition process. The primary reason for a Red Notice being requested is so that a wanted person can be detected upon entry into another country (or contact with another country’s law enforcement officials) and then returned to the requesting country.

However, several variables determine whether a Red Notice will actually result in the subject’s return to the requesting country:

  1. Detention: Each INTERPOL member country decides whether to detain a Red Notice subject. In my experience, some countries do, and some do not- they may instead tell the subject to board the next plane back to the original country.
  2. Removal proceedings vs. extradition: If a member country does detain the subject, it must decide whether to notify the requesting country that the subject has been found. Again, in my experience, some countries are more vigilant about notifying requesting countries that they have detained a Red Notice subject. They may, instead, begin removal (deportation) proceedings, so that the subject is required to leave the territory for whatever destination the subject chooses.
  3. Extradition treaties: if a Red Notice subject appears in an INTERPOL member country that has no extradition treaty with the requesting country, it is unlikely that extradition will occur. However…
  4. Diplomatic relations: there exists the possibility that a Red Notice subject could be transferred for prosecution via diplomatic channels, without the existence of a treaty.

Additionally, a Red Notice can be requested or issued at any time, and it can be acted upon at any time. There is no limitation requiring law enforcement to  check a person’s INTERPOL status only at the border. Any contact with law enforcement officials, whether they be police officers or immigration officials, can lead to a Red Notice “hit” and authorities being alerted to a Red Notice subject’s status with INTERPOL.

As always, questions and comments are welcomed.

 

 

As we await the publication of the CCF’s annual report from last year, it is worth reviewing the speech given by the Commission’s Chairman,  Vitalie Pirlog, at INTERPOL’s 2017 annual meeting as a means of providing continuity in the analysis of the upcoming report.

Mr. Pirlog focused at that time on the changes brought about by the passage of the Statute of the Commission for the Control of INTERPOL’s Files, including new time limits for the CCF’s decisions, the change from a single chamber to a dual chamber,  and the challenges faced by the Commission in relation to its dealings with National Central Bureaus (“NCBs”).

While the Commission is now tasked with meeting deadlines for its decisions, it also relies on NCBs to respond quickly and succinctly to inquiries related to requests for removal. The speech indicates that while most NCBs respond in an appropriate fashion, some have not.

For example, Mr. Pirlog found it necessary to remind member countries that the organization’s asylum policy was meant to be utilized in accordance with  international law and the protections afforded to people with protected status.  This reminder came at a time when INTERPOL had already implemented its asylum policy, and was developing the policy under President Meng Hongwei, who sought to exclude Red Notice subjects from the policy’s protections if their countries considered them to be terrorists. The danger with this nuance, of course, was that protected persons could still be subject to persecution with INTERPOL’s assistance if the requesting countries improperly categorized them as terrorists.

In that situation, as with others faced by the Commission, the Commission is obliged to weigh individual rights and the need for legal protection against member countries’ expressed need for law enforcement.

It is reasonable to expect that the next CCF Annual report (which I understand will be released this month) would include an update on the NCBs’ collective response to Mr. Pirlog’s request for heightened recognition of legitimate protective status claims.

As always, questions and comments are welcomed.

 

One of the most personal aspects of an INTERPOL case concerns a Red Notice subject’s decison about attorney representation. On that topic, a reader sent in the following question:

Can a termination of legal representation of a lawyer after the submission of the application form to the CCF ( deletion request) and before the first review by the Commission of the file automatically lead to the dismissal of the Application on a procedural basis?

This reader has clearly already hired an attorney who has submitted a request for removal of a Red Notice, and the case is now in the process of being reviewed by the Commission for the Control of INTERPOL’s Files (“CCF”).

The answer to the question is no. An applicant’s choice of which attorney, or whether to hire an attorney, on an INTERPOL matter should have no effect at all on the CCF’s evaluation of the case.

However, if a change in counsel is made and a new power of attorney is executed for a new attorney to act on the subject’s behalf, the CCF must be advised of that change so that it has the correct contact information on file when it comes time to send out its decision or other correspondence.

As always, thoughts and comments are welcomed.

In a recent documentary, “Interpol- who controls the world police?” the German public broadcast service, DW, explores issues affecting INTERPOL’s functioning, independence, and funding.  The documentary addresses a variety of questions that have arisen over the last decade or so as INTERPOL has wrestled with the challenge of assisting its member countries with the enforcement of laws while also attempting to maintain neutrality with respect to its treatment of its member countries.

Primary to the focus of the documentary is the issue of funding. INTERPOL is an international organization that historically been funded by its member countries on a relatively sliding scale: the more wealthy countries contribute more financial resources, and the less wealthy countries contribute less. However, even with some of the wealthiest countries in the world paying their share, INTERPOL’s budget is remarkably low considering the tasks for which it is responsible. After the 9/11 attack on the twin towers, as the organization sought to increase its role in the world stage of policing, it sought other funding options. The result was both beneficial and harmful to INTERPOL’s mission and reputation. In recent years, changes in both policy and practice have followed.

This is the first of a four-part series that examines DW’s documentary against the backdrop of INTERPOL’s past and current activities.

_______

For today, we’ll start with a very basic but important distinction: INTERPOL is not, as the documentary implies in its title, a police force meant to police the world. It is a data-sharing organization with whom its member countries agree to cooperate. The primary purpose of the organization is to assist its member countries with locating wanted individuals for prosecution or sentencing in criminal cases by circulating information about the wanted person’s location. Another, growing goal of INTERPOL is to assist its member countries’ police forces with education, prevention, and training. However, as illustrated in the documentary, INTERPOL has the capacity to take on a semi-private police force characteristic if it agrees at a policy level to enforce certain laws, to accept funding from private entities, and to allow its actions to be influenced by private interests.

In this series, we will examine each of these issues against the backdrop of INTERPOL’s past and in anticipation of its future.

As always, thoughts and comments are welcomed.

 

***

 

One of the most frequent questions people have about INTERPOL Red Notices is how a Red Notice can be issued in a case where the prosecution was politically motivated. The question is a valid one, particularly given INTERPOL’s prohibition of involvement in political cases. INTERPOL specifies in one of its fact sheets, here, that:

 

The General Secretariat can only publish a notice that adheres to all the proper legal
conditions. For example, a notice will not be published if it violates INTERPOL’s Constitution, which forbids the Organization from undertaking activities of a political, military, religious
or racial character.

 

This statement is not entirely accurate, only because the General Secretariat does not always know the true nature of the cases behind the Red Notice requests that it receives from its member countries.

Despite the prohibition against political cases, practitioners are routinely approached by individuals who are being politically prosecuted for criminal offenses, and listed with INTERPOL as Red Notice subjects. The reality is that politically motivated Red Notices are, in fact, published.

Unless a Red Notice subject is particularly well-known, it is quite possible for the underlying political nature of the Red Notice to be unknown to INTERPOL. Only when the subject discover the Red Notice and works with his/her attorneys to inform INTERPOL about the true nature of the case does INTERPOL learn that it should not be involved in the matter.

As always, thoughts and comments are welcomed.

 

:

We left off in the last post with a discussion about why a Request Chamber comprised entirely of lawyers makes a difference in the nature and quality of decisions being issued by the CCF.

In March of 2017, INTERPOL adopted a new Statute of the Commission for the Control of INTERPOL’s Files. As with many new regulations, the effect of this one took some time to become realized. That effect is now apparent, and is partially due to the new make up of the Commission.

Previously, the Commission‘s membership did include professionals with legal backgrounds, but they were not all attorneys. Now, however, this is the required background for the individuals who will decide the cases:

Article 8, Statute of the CCF:

The Request Chamber comprises the following:

(4) The Requests Chamber shall consist of five members:
(a) A lawyer with data-protection expertise;
(b) A lawyer with recognized international experience in police matters, in particular international police cooperation;
(c) A lawyer with international criminal law expertise;
(d) A lawyer with human rights expertise;
(e) A lawyer who holds or has held a senior judicial or prosecutorial position, preferably with experience in international judicial cooperation.

That’s a lot of lawyers, and that’s a lot of relevant legal experience. This type of experience makes a difference in the Commission’s analysis of cases and arguments. Since this change in the composition of the Commission’s decision-making body, we have seen a change also in the quality, depth, and detail of the decisions being issued by the Commission.

The advantage to this new approach is not only that the Commission is providing more transparency and legitimacy to its process. The changes also mean that the Commission is allowing for a higher quality of requests: when applicants know how the Commission approaches its cases, applicants and their attorneys are able to tailor their requests in a manner that is best suited for the Commission’s analysis.

RNLJ has frequently included criticism of INTERPOL and has advocated for reform where it has been needed, and we will continue to do so. But for now, credit has to be given where credit is due. INTERPOL has gotten this right.

As always, thoughts and comments are welcomed.