Warning: cynics should skip this post. It is an unabashed professional letter of admiration. In my many years as a criminal defense attorney, I have encountered a few inspiring advocates who are wholly dedicated to their craft and their clients; this post is about some of them. 

The world of INTERPOL is rather small. While the reach of the organization is global, the number of people who work with and are affected by INTERPOL is quite limited. The number of people and organizations who are involved with efforts to effect INTERPOL reform is even smaller. As a consequence, there are very few people who care about what happens to INTERPOL Red Notice subjects. Without champions, people affected by INTERPOL would be left without hope for reform where it is needed.

In the last decade, numerous non-governmental organizations and governments have either embarked on reform efforts or offered reform suggestions in the hope of convincing INTERPOL to modify various aspects of its law enforcement assistance methods. Most of the time, such efforts are aimed at increasing the organization’s support of individual privacy, due process, free speech, or political rights. I have been fortunate enough to both observe and participate in many of these efforts, along with a handful of talented and dedicated colleagues.

One of the involved parties, Fair Trials International, has emerged as a true champion working for INTERPOL reform. This organization has managed to balance zealous advocacy with credible diplomacy, resulting in an active and engaged dialogue between FT and INTERPOL. Late last month, FT met with INTERPOL’s Secretary General Jürgen Stock to discuss INTERPOL reform. The meeting follows a multitude of previous reform campaign highlights, including critical reports from 2013 and 2015 that prompted significant reforms, including increased transparency, improved communications, more thorough written decisions, and better response times on removal requests.

To its credit, INTERPOL has identified FT as an authoritative and experienced organization, and has wisely given its ear to FT in an effort to stay true to its mandate to respect the Universal Declaration of Human Rights and the rule of law in general. While it would be unrealistic to expect a that criminal defense attorney would always agree with INTERPOL’s decisions, this particular attorney has respect for INTERPOL’s willingness to ask, “Where can we improve?” and then really listen to the response that the relentless advocates at FT provided.

So to all those at Fair Trials: thank you for what you do. You may never know the impact of the work that you have done, or the depth of gratitude of the people who have benefited from it. Yours is work that matters.

As always, thoughts and comments are welcomed.

 

Uganda’s acting director of its national liaison agency with INTERPOL has reportedly stated that the Ugandan authority charged with providing INTERPOL with accurate information is not complying with that obligation. Moreover, Mr.  Benson Oyo-Nyeko has requested that citizens themselves take responsibility for correcting the government’s inaction.

New Vision, a leading Ugandan news source, reported Mr. Nyeko’s request that individuals come forth to prove that their charges have been resolved in order for Uganda’s National Central Bureau to correct its records:

Nyeko says once a person is cleared of his offences, CID takes the responsibility to write to Interpol and asks them to clear the person from the system. However, CID does not do it so it’s important for one to personally follow up to clear his or her name. 

The CID is Uganda’s Criminal Investigation Department, and is the agency that requests Red Notices through INTERPOL.

INTERPOL’s rules very clearly require its member countries to update their information in INTERPOL’s databases. This duty includes the obligation to advise INTERPOL to remove people from the Red Notice wanted list once their cases are resolved. While it is disturbing to know that Uganda’s official in charge of compliance is confirming publicly that the CID is not meeting its mandate, it is perhaps even more disturbing to realize that his solution to the crisis- and it is a crisis- is not to require compliance but to shift the burden onto citizens.

This means that INTERPOL is on notice that one of its member countries is actively and willfully out of compliance with its rules:

Article 81: Suspension, withdrawal or cancellation of a notice

(1) The requesting National Central Bureau or international entity can suspend its cooperation request or its alert for a period not exceeding six months. It shall indicate the reasons for this suspension to the General Secretariat, which will then suspend the notice.

(2) The National Central Bureau or international entity requesting a notice shall withdraw its cooperation request or its alert and ask the General Secretariat to cancel the notice immediately: (a) once the purpose of this request or alert has been achieved…

A swift, public, and meaningful response is the only course of action that would allow INTERPOL to maintain its integrity and obligation to its rules.

As always, questions and comments are welcomed.

 

Today’s post is by guest author James Kennedy*

The privacy rights of individuals can be a tricky business, especially when it comes to companies that land themselves in hot water when they inadvertently violate an individual’s privacy rights. But what happens in the case of an international police force, such as INTERPOL? Do the privacy rights remain the same for individuals charged with crimes? Must INTERPOL play the by the guidelines of privacy rights set forth by each individual country  it is associated with, or may  it set its own rules?

Before delving into these questions, one should take into consideration that the vast majority of Red Notices are not displayed on INTERPOL’s website. If you, or a client of yours, happen to be one of the individuals that have a Red Notice and are on INTERPOL’s website, one should start with the basics:

  • What is INTERPOL? INTERPOL is an international police cooperation organization with 194 member country members.
  • What is a Red Notice? A Red Notice is an international alert circulated by Interpol to seek the location or arrest of a person wanted by a judicial jurisdiction or an international tribunal with a view to the individual’s extradition.
  • What kind of information is disseminated on INTERPOL’s website? In a Red Notice, alleged criminals have the following listed: their name, gender, date and place of birth, nationality, physical descriptors (such as height, weight, eye and hair color), languages spoken, and the charges brought against them.

INTERPOL aside, each country has its own criteria of what can and cannot be disseminated in terms of personal data. Bear in mind that most countries balance an individual’s right to privacy against government interests. That being said, if an individual is charged with a crime, the invasion of privacy (such as one’s personal information being disseminated through INTERPOL’s website) may be warranted in the country’s view by the necessity of a compelling state interest (such as the safety and security of the nation).

To exemplify the vast threshold differences that can be between two countries, we might look to the difference between the policies of Denmark and the United States. In Denmark, personal information can only be collected if the individual gives explicit consent, while in the United States, data privacy is not as highly regulated; most regulations are left up to the individual states. Once again, one must be reminded that are person being charged with crime(s) may have their privacy rights compromised with no repercussion, so long as the safety and security of a nation is a sufficiently compelling state interest.

*James Kennedy is a J.D. candidate at Stetson University College of Law

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

A very common concern among this firm’s clients is how long it will take for INTERPOL to issue a Red Notice and circulate it among INTERPOL’s member countries around the globe. It can be frustrating for potential Red Notice subjects to learn that the  answer depends in large part on the efficiency and motivation of the requesting country.

The procedure of the implementation of a Red Notice is composed of several stages:

  • Red Notices are published at the request of a National Central Bureau or an international entity with powers of investigation and prosecution in criminal matters.
  • Prior to requesting the publication of a notice, the requesting entity  is supposed to ensure that the conditions attached to its request for publication are met, including the requirement that the notice must be supported by a valid underlying arrest warrant, judicial decision, or its equivalent.
  • After that, the requesting entity can submit the Red Notice request.
  • Before their publication, the General Secretariat is supposed to conduct a legal review of the Red Notice to ensure compliance with Interpol’s Constitution and Rules. If the request is compliant, Red Notices are then published by the General Secretariat.

There is no single answer to the question of how long each part of the process  will take. The duration of all those steps depends in large part on the member states. What is more, Red Notices are rarely publicly published, which makes it more difficult to know the general average duration of the full process.

If a person has reason to believe that he or she is the subject of a Red Notice, an inquiry can be made directly to INTERPOL to determine his or her status with the Organization.

As always, thoughts and comments 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 third in a series of posts by guest author Lisa Ould Aklouche*

A reader recently posed the following question:

“Is it a prerequisite for a Red notice that the notice pertains to a criminal offense in the issuing country?”

The simple answer is yes.

What is more,  in general, Red Notices may be published only if the offense concerned is a serious ordinary-law crime.

In addition, if the person is sought for prosecution, the conduct constituting the offense must generally be punishable by at least two years of imprisonment or a more serious penalty. If the person is sought to serve a sentence that has already been imposed, he or she must be sentenced to at least six months of imprisonment and/or there is at least six months of the sentence remaining to be served.

The only exception to these conditions is if the General Secretariat decides to publish a requested Red notice because it considers that it would be of particular importance to international police cooperation.

As always, questions and comments 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 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.