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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.

 

I recently received a decision from the CCF (Commission for the Control of INTERPOL’s Files), and I absolutely loved it. It was by far the best decision I have ever received from the CCF- and not just because we succeeded in our request to remove a client’s Red Notice, although of course that was the best part.

The decision was outstanding for another reason: it provided a thorough and detailed analysis of the Commission’s approach to the case. It provided a basis for understanding the Commission’s view of the case, and it gave the reader insight about how the Commission weighed the evidence and arguments that we had submitted, particularly against the political landscape of the country that requested the Red Notice.

Since the CCF does not publish its decisions, we can only glean information and guidance from its decisions on an anecdotal basis, as the decisions become available to us through our own work or the work of others. In that manner, I’ve noticed over the last 9 to 12 months that the CCF’s decisions are increasingly detailed, more thorough, and offer more transparency in terms of providing insight as to the Commission’s process and reasoning.

This change may be rooted in a variety of reasons, but the one that’s most apparent is this: the Commission’s decisions on requests for removal are now made by the Request Chamber, which was newly created in 2017 by the Statute of the Commission for the Control of INTERPOL’s Files. The members of the Request Chamber are all lawyers, and the difference that makes is significant.

Certainly, the CCF has always had attorneys on its staff who handle much of the CCF’s work when it is not in session, and who work in overdrive when it is in session. However, the added influence of having attorneys in decision-making roles who preside over cases in session cannot be overlooked, and is becoming more apparent with time.

In the next post: who are the lawyers that make up the Request Chamber, and why it matters.

As always, thoughts and comments are welcomed.

In the last post, we began a discussion on the issue of confidentiality in requests for Red Notice removals to the CCF.

When a Red Notice subject requests removal of a Red Notice, he is obliged to explain to the CCF why he is entitled to relief, and that explanation often involves reference to illegal action taken by officials in the INTERPOL member country seeking to capture him.

Naturally, many Red Notice subjects who seek Red Notice removal have left behind not only a corruptly obtained criminal charge and corrupt local officials, but they have also left behind family and friends about whom they are concerned.  The Red Notice subjects are often reluctant to disclose information regarding corruption, because those same corrupt officials are also capable of taking action against the subject’s family or friends.

This is where the issue of confidential information in an application requires some thought and analysis.

The CCF advises as to confidentiality issues on INTERPOL’s website, and confirms that all requests are confidential, and will not be recorded in INTERPOL’s databases, or be used to assist in international police searches. It clarifies, however, that:

The Commission may nevertheless need to communicate some information to the INTERPOL General Secretariat or the National Central Bureaus in order to obtain information, which is necessary for the processing of a request.

Experience tells us that the CCF can and does reach out to National Central Bureaus (NCB’s), and not only to verify court rulings and case status. There are also times when the CCF explains in some detail the arguments that have been asserted by Red Notice subjects in an effort to learn the NCB’s perspective on those matters. Obviously, some Red Notice subjects would prefer for such arguments, and the evidence offered in support of those arguments, NOT to be brought to the attention of the NCBs. For example, if a subject has fled a country where a bogus criminal charge has been filed as the result of political persecution, that subject would be reasonable to believe that the persecutors, who are connected with law enforcement officials, may also persecute their family members. In this situation, a subject has to make the difficult decision to disclose information and request heightened confidentiality, while also possibly risking a negative effect on the CCF’s review of the matter, as addressed by the CCF here:

However, any item of information specifically identified by the Applicant as confidential will not be communicated. This may be detrimental to the Applicant, as it restricts the Commission’s ability to fully process a request.

Therefore, in such instances when a subject does request heightened confidentiality, the subject must rely on the CCF’s request chamber members, all of whom are attorneys, to evaluate the application based upon the evidence submitted, with an eye toward individual protection and and the ability to appreciate the very real dangers that can accompany a request for protection to the CCF.

As always, thoughts and comments are welcomed.

Why would a Red Notice subject want a request for removal of that notice to remain confidential? If you were a wanted person who was innocent, wouldn’t you want to shout it from the rooftops, for everyone to hear? The answers to these questions are more nuanced than one might initially think.

By the time most Red Notice subjects seek assistance with the removal of a Red Notice, they have already endured multiple, ongoing hardships. They have often faced false or inflated criminal charges in jurisdictions where a fair trial is unattainable. Sometimes they have had civil disputes that became criminal because their opponent bribed local officials. Other times, they were charged criminally because they opposed the ruling political party in some way.

Very frequently, they say at some point during our initial meeting, “I know this sounds crazy, but…”

And the fact of the matter is, it doesn’t sound crazy. There is almost a recipe for every type of false or inflated charge that is prosecuted. That recipe almost always includes more than one person in power with an agenda that includes, or requires, the maintenance of criminal charges against individuals who would serve as obstacles to their goals. It may be as simple as a local police officer and prosecutor who filed a criminal complaint after being bribed. It may be as complicated as an entire national administration dedicated to keeping an oligarchy in power.

Regardless of the corruption model, a Red Notice subject often fears retribution when seeking relief from an improperly issued Red Notice. Even though the subject himself may have escaped an unsafe venue, he often has the worry of the family and business associates he left behind. It is not at all unusual for remaining family and associates to be harassed and intimidated by authorities, both officially and unofficially.

For these reasons, Red Notice subjects are often extremely concerned about confidentiality in their requests for relief to the CCF.

Submitting a request for relief to CCF requires a showing of violations of rule and law, which may require a showing of information that could endanger people back home. While the CCF’s rules do provide for confidentiality, there are situations where the CCF may wish to verify information with the country that requested the notice in the first place. Accordingly, applicants often have to decide whether to send the CCF information that would assist their cases, or to keep that information private in the interest of family safety.

In the next post, we’ll look at the issue of absolute confidentiality in the context of a request for relief to the CCF.

As always, thoughts and comments are welcomed.

Under the leadership of its current Chairman,  Vitalie Pirlog, the Commission for the Control of INTERPOL’s Files (“CCF”) has proven in this year’s decisions that it is serious about holding National Central Bureaus to their obligations under INTERPOL’s rules.

In his speech at this year’s General Assembly, Chairman Pirlog reminded INTERPOL’s membership that the CCF often seeks information from their National Central Bureaus (“NCBs”). These responses are essential to the CCF’s ability to make decisions about requests for removal of Red Notices from the requesting country. Mr. Pirlog reminded member countries that timely responses were particularly important, given the CCF’s new statute that generally requires a response to be issued within four to nine months.

INTERPOL has always provided the required assistance to its members’ NCBs, but historically, the NCBs have not always been strictly observant of their duties to provided requested information, or to provide it timely. The CCF has apparently had enough of that, and is holding the members countries’ NCB’s feet to the fire.

Based on the CCF’s decision letters that have been received by this practitioner, it is clear that:

  • The CCF is generally adhering to the new time limitations for issuing decisions, with some decisions being issued even earlier than required;
  • The CCF is demanding cooperation from National Central Bureaus, and when they do not respond in a timely fashion, the CCF is proceeding to make a decision based on the information it has, rather than waiting or continuing the matter until the NCB provides a full response; and
  •  The decisions being issued by the CCF are generally accompanied by a reasoned explanation, detailing the Commission’s steps and considerations taken in reaching its decision.

These factors are critical to the CCF’s efforts at demonstrating transparency, and allow applicants to both appreciate the nature of the process, as well as to recognize that they were given a “fair shake” in INTERPOL’s processes. One would hope that the more lax NCBs recognize the shift in culture at the CCF, and become more compliant as a result. Whether they do or not, the CCF will benefit from the fact that it is protecting INTERPOL’s interests in transparency and the furtherance of human rights.

As always, thoughts and comments are welcomed.

As discussed in the last post, here, INTERPOL’s new rules governing the CCF took effect in March. From a practitioner’s standpoint, among the more significant changes is the CCF’s new task of publishing its opinions and providing reasoning for them.

The CCF is now required to “endeavour to make its decisions, opinions, recommendations and
reports public in all working languages of the Organization.”

This language of the statute is devoid of hard deadlines or methods of publication- there are no assurances that the CCF’s decisions will be published monthly, quarterly, yearly, etc. In fact, there is not the requirement that the CCF actually publishes an opinion- simply that it must endeavor to do so.

However, the publication provision in the statute is still good news. This marks the first time that the CCF has obliged itself to even contemplate creating a public repository of opinions, and that would be a very useful thing for both the CCF and practitioners for a couple of reasons:

  • Published decisions allow practicioners to better understand the CCF’s analytical process and the weight that the CCF gives to various types of arguments.  Until now, we have been limited to reviewing our own cases or the relatively few media cases to gain insight as to the CCF’s deliberative process.
  • Published decisions allow the CCF to receive better prepared requests for relief. An informed practitioner is an effective practitioner.

Now, we wait to see how and when this new practice will take effect.

Next time: new rule on the how quickly an attorney must act on the discovery of new information in an applicant’s case.

As always, thoughts and comments are welcomed.

Last November, at the annual meeting held under the direction of INTERPOL’s newest Secretary General, Jürgen Stock, the organization adopted new rules to be applied to its quasi-appellate body, the Commission for the Control of INTERPOL’s Files (“CCF”).  This change marks the first time since 2012 that INTERPOL and the CCF have undergone such a substantive change in the rules.

The new rules are set forth in the “Statute of the Commission for the Control of INTERPOL’s Files,” the purpose of  which is to define the work of the CCF.  The changes in the CCF are both procedural and substantive.  We’ll address the most significant differences in the next several posts, and today will begin with one of my favorites and something that almost no one ever asks for: more lawyers.

In the context of the CCF, more lawyers is good.  Up until now, the CCF has been comprised of five members, who are required to include: one chairperson who has held a senior judicial or data protection post; two data protection experts having held senior positions in that field; an electronic data processing expert having held a senior position in that field; and an expert with international experience in international police co-operation.  While some attorneys have held the positions, there has not been an absolute requirement that attorneys be appointed. Consequently, the Commission members’ experience in or interest in international human rights issues, criminal law fundamentals, and international judicial matters have not been required.

Now, however, the new Statute re-defines the makeup of the CCF.  There will now be two chambers that comprise the CCF:

The Supervisory and Advisory Chamber, responsible for:

  • ensuring compliance of personal data with INTERPOL’s rules, and
  • assisting INTERPOL with advise on projects, rules, and oeprations regarding the processing of personal data.

The Requests Chamber, responsible for:

  • examining and deciding on requests for access to and removal or correction of data.

The Requests Chamber is required to include five lawyers, one of each with expertise in data protection, international police cooperation, international criminal law, human rights issues, and one with judicial or prosecutorial experience.

While the CCF has already staffed very capable attorneys who work on the data requests, this is the first time that the members of the Commission will be required to be attorneys as well.  This change is indicative of a higher commitment by Commission members to the examination and understanding of legal arguments and theories, and should make the work of the CCF’s staff attorneys less burdensome in terms of pre-session preparation of cases.

The inclusion of attorneys on the CCF will also assist in accomplishing one of the other new requirements of the CCF: to provide reasoned and published opinions.  More on this topic next time.

As always, thoughts and comments are welcomed.

As the year begins, and changes appear to be coming to both INTERPOL and the CCF,* Red Notice Law Journal reviews some highlights from the CCF’s activity in 2016:

Third case study: a comparison of the CCF’s treatment of Russian Red Notice requests:

In today’s post, I’ll compare two very different decisions from the CCF, primarily to highlight the difference in the quality and depth of the responses that we are receiving now.  Both cases involved very complicated fact patterns and legal issues, and both required that the CCF review a significant quantity of evidence prior to making its decision.

The decision in the first case, however, was more similar to the decisions that the CCF has issued in the past: concise, to the point, and lacking the information that would allow the client to fully understand the basis of the decision or that would allow the attorney to understand how the CCF viewed each legal argument. The decision in the second case contained many of the elements that the CCF will be required to include after the rules changes take effect in March.*

September 2016 decision regarding a Russian national:

In this decision, which was received in the early fall of 2016, the CCF advised that the client’s Red Notice had been removed, and confirmed that it had communicated to all the National Central Bureaus that the data should also be removed in their respective national databases.  This was not a particularly detailed decision as relayed to us, but it was obviously a welcomed one.

December 2016 decision regarding a Russian national:

In the decision received in December of 2016, the CCF methodically detailed the background of the case, the actions that it took upon receiving the evidence supplied on behalf of our client, and the reason for the CCF’s ultimate decision to remove the Red Notice. It also supplied an official document explaining in plain language the the client was not known to INTERPOL’s files nor did his data exist within INTERPOL’s databases.  The detail supplied in this letter allows for an understanding as to the CCF’s reasoning and analysis, which is valuable for the client as well as the attorney.  The client feels that the CCF really took the time to examine and understand the case, which is very important, given that many Red Notice subjects who seek relief from the CCF have never received due process in their cases from the countries that requested the notices.  The attorney benefits, as does the CCF, by learning which arguments and which evidence were most compelling, or least compelling, in the eyes of the Commission members.

This change in the CCF’s approach to issuing its decisions is beneficial to all parties. In the next series of posts, I’ll address these changes and how they might affect practitioners and notice subjects.

As always, thoughts and comments are welcomed.

*Changes to the CCF will be addressed in the next post.

A reader recently posed some questions about INTERPOL’s dissemination of information, and those questions are answered in today’s post.

Q: There has not been an annual report 2015 by Interpol so far – are there probably other sources that can tell numbers of red notices and diffusions issued in 2015 and numbers of valid notices/diffusions in circulation?

A:  The annual report for the previous year is normally published in conjunction with INTERPOL’s annual General Assembly, which is usually held in October or November.  The reports are published here.  Otherwise, the number of Red Notices or diffusions issued are not made public, because INTERPOL’s member countries do not always request that their notices be publicized.  In fact, a majority of them remain hidden from public view.

Q: Are ways to find out (by the numbers of notices/diffusions/arrested persons in annual reports) how many diffusions/red notices are deleted after Interpol indicated a political motive behind them?

A:  INTERPOL’s CCF has included this information in its annual reports (see below) in the past, and it also has recently begun providing more specific information in its responses to requests for Red Notice removal.  In the response letters, the individuals who applied for relief are now being informed more frequently of the reason for the removal of their notices.  However, the CCF’s recommendations (which are almost always adopted and implemented by the General Secretariat) are not made public, so this information is available largely on an anecdotal basis.

Q: Are there any hints of inner political problems in Interpol?

A:  INTERPOL is an international organization with over 190 member countries, each of which can claim varying levels of compliance with human rights standards, so some  political problems are inevitable.  The CCF, however, does a decent job of guarding itself from external influences, and its own annual reports often call the organization as a whole to task for the continual improvements that are needed to fulfill its obligation of remaining impartial in politically motivated cases, as well as other issues related to human rights protection. The annual reports are found here, and give insight to the issues that the CCF chooses to focus on from year to year.

As always, thoughts and comments are welcomed.

The Russian Federation is one of INTERPOL’s 190 member countries, which means that it has the privilege of using INTERPOL’s databases to help it track down wanted suspects and convicts for prosecution and sentencing.  Along with that privilege comes the obligation to follow INTERPOL’s rules, not the least of which are the requirements that every member country abide by the Universal Declaration of Human Rights and uphold their own due process laws.  Additionally, member countries must not use INTERPOL’s channels to pursue politically motivated  or corruptly filed criminal charges.  When countries violate their obligation to uphold these tenets, INTERPOL’s rules specifically provide that those countries can be sanctioned in a variety of ways.

While INTERPOL has refused to issue certain Red Notice requests as made by the Russian government, anecdotal evidence shows that its quasi-appellate body, the Commission for the Control of INTERPOL’s Files (CCF), is still accepting representations by the Russian government that it is in compliance with its above-stated obligations.  A recent decision by the CCF contained the statement that Russian authorities had provided “satisfactory  elements regarding compliance with … the Universal Declaration of Human Rights.”

Honestly, this kind of statement is stunning, given the international recognition and condemnation of the ongoing and endemic violations of human rights in Russia. In addition to the increasing drum beat of criticism of Russia’s human rights record, now another NGO has issued a statement, yet again affirming the truly horrific human rights violations still occurring in Russia.

The Open Dialog Foundation released a statement on May 9 regarding the involvement of Russian officials in the ‘Magnitsky list’ who are also involved in other politically motivated criminal proceedings in Russia. Open Dialog advocacy officer Thomasz Klosowicz presented information on other politically motivated criminal prosecutions and connected these cases to officials who were also connected to the Sergei Magnitsky case. The Red Notice Law Journal has previously addressed the Magnitsky case here and here.

In its statement, Open Dialog addressed the cases of Nadiya Savchenko, a former Ukrainian pilot and politician convicted for the murder of Russian journalists; the protestors of Bolotnaya Square and Manezhnaya Square, prosecuted for being members of opposition movements and organizations; the leaders of Yukos, accused of fraud and tax evasion; and Mukhtar Ablyazov, a opposition politician and businessman accused of embezzling funds. The purpose of the statement is to demonstrate how corruption and oppression in Russia has led to the abuse and exploitation of both its citizens and foreign nationals, and to serve as a call to action to raise awareness and prevent the unjust treatment and prosecution of these individuals. The Open Dialog Foundation says that it aims to identify that corruption in Russia is systemic and in direct violation of human rights laws.

As Russia’s human rights abuses continue to grow, the question must be asked, at what point does INTERPOL apply the sanctions available to it since its rules were changed in 2012, and hold Russia consistently accountable for its abuse of INTERPOL’s systems?

As always, thoughts and comments are welcomed.

*(RNLJ thanks journalism student Elayza Gonzalez for her contribution to this post.)