Lawyers must fix the problems with gagging orders before it is too late
190 member countries, an (increasing) budget of almost €60 million (the draft budget for 2013 is 56.608 million), a sophisticated information sharing network¹ and over 6,000 Red Notices issued in 2010 - an awareness of the impact of a Red Notice and an understanding of how to challenge one is as important in international terms as dealing with an arrest in the corresponding domestic setting.
The dissemination of Red Notices is perhaps the most public of Interpol’s functions, albeit it is only one part of its workload. A Red Notice is issued by Interpol at the request of a member National Central Bureau (SOCA in the UK) or sub bureau (in the UK’s Crown Dependencies) to seek the location and arrest of wanted individuals with a view to their extradition ‘or other lawful action’. For all practical purposes, it is a request by Interpol to its members to arrest a suspect if the individual comes to the attention of the police in one of the member states.
A number of Notices are publicised on Interpol’s public website, identifying the name, nationality, and relevant offences. If available, a photograph will also be on the website.
Depending on national law, a police force implementing the Red Notice may arrest and detain a subject even where there are no extant extradition arrangements with the state which has requested the Notice. Ultimately, however, absent extradition arrangements, a suspect may be released following that initial arrest. For example, in some states, a police officer, being aware of a Red Notice must arrest the suspect and then leave it to a Court to consider whether the suspect should be released. The converse is also true. For example, suspects are not necessarily arrested at borders even when there is a Notice outstanding and extradition arrangements are in place.
As well as Red Notices, a diffusion notice may be issued by a member state requesting the arrest or location of a suspect. Diffusion notices are circulated directly by an NCB to the member countries of their choice or to the entire Interpol membership. The notice is simultaneously recorded in Interpol’s Information System. Anecdotally, it seems diffusion notices are becoming more prevalent.
The imposition of a Red Notice will have an enormous impact on those unfortunate enough to be targeted – particularly if the subject is featured on Interpol’s public webpage. Plainly, international travel becomes risky but collateral damage can also be severe: banks may request the closure of accounts (banks will be concerned to comply with AML obligations); employment and professional status may be affected (for example, an approved person would need to inform the FSA of any Notice); personal reputations will suffer and, in some cases, a criminal investigation, additional to that in the requesting state may be instigated. Of course, these issues will be contested but in doing so, a challenge to a Notice should be considered.
The first approach to Interpol may often be to request a removal of a suspect’s details from the public website – and it may be that this is all that is sought. Assuming that a suspect is, however, seeking the deletion or amendment of a Notice, the first, and most obvious, step is to make enquiries in the state issuing the request for the Notice, preferably through the engagement of local lawyers. Local lawyers can seek to engage with the relevant law enforcement agency, perhaps to have the case or Notice withdrawn. It is also useful to have local lawyers on board in the event that an extradition request is ultimately made. In addition, enquiries by local lawyers can put some factual flesh on what is often no more than skeletal information provided to Interpol – sometimes simply a domestic warrant for arrest – often inaccurately and misleadingly drafted. In one case, the criminal complaint was recorded as having been made by the suspect against himself (!) – yet Interpol still issued a Red Notice. Enquiries may reveal that the suspect’s case is tainted by political considerations, that it is of a civil rather than criminal nature, that the punishability threshold is not met (two years for accusation cases and six months for conviction cases) and so on (see articles 3 and 83 below).
Assuming that the Red Notice is inappropriate, contact should be made with the Commission for the Control of Files (“CCF”) at Interpol Headquarters in Lyon. The CCF is an independent body within the Interpol structure which supervises the application by Interpol of its own data protection rules, processes applications for access to files and advises Interpol on the processing of personal information. There are certain formalities which are required by the CCF before it will accept the admissibility of any request for access to information and/or request for deletion or amendment of Notices, such as obtaining a power of attorney from the suspect, but these are not particularly onerous.
Interpol must comply with the terms of the ECHR and Article 8 of the European Union’s Charter of Fundamental Rights (the right for personal data held to be processed fairly and rectified if inaccurate), as supported by the Council of Europe Convention for the Protection of Individuals with Regard to the Automatic Processing of Personal Data (1981). Article 8 of the Convention provides individuals with a right for rectification or erasure of data in appropriate circumstances.
As well as the broad framework established by EU instruments, Interpol must also comply with its own Constitution and Rules on the Processing of Data (“Rules”). Of particular significance are Article 3 of the Constitution and Article 83 of the Rules.
Obviously the nature and grounds of any challenge will vary from case to case but in summary, these should be considered:
Article 3 provides that it is ‘strictly forbidden for the Organization to undertake any intervention or activities of a political, military, religious or racial character’.
A recent public case where this argument has been advanced is that of Benny Wenda, a leader of the independence movement in West Papua.
Article 83 sets out specific criteria for ‘publishing’ Red notices. Included in those criteria are prohibitions on publication² if:
a) the offence in question raises ‘controversial issues relating to behavioural or cultural norms’;
b) the offence originates from ‘a violation of laws or regulations of an administrative nature or deriving from private disputes …’
c) penalty threshold – the conduct constituting the offence is punishable by at least two years ‘deprivation of liberty’ or, in conviction cases, the subject is to serve at least six months of imprisonment.
Inter alia, Article 76 provides discretion to Interpol not to publish a Red Notice if “the publication of the Notice could prejudice the Organization’s image or interests”. Plainly this article is of use where the request has been made by a state with a dubious human rights record. It may very well be used in conjunction with Article 3 of the Constitution and Articles 11 and 12 (see below).
Article 11 requires that Interpol’s data processing should be authorised with regard to the relevant law applicable in the NCB of the requesting state. It requires that regard must also be had to the Universal Declaration of Human Rights (referred to in Article 2 of Interpol’s Constitution). In addition, Article 12 states that the information which Interpol processes must be “accurate, relevant, not excessive [in relation to purpose] and up to date”. This highlights again the importance of obtaining up to date information from the requesting state which, of course, may be at odds with that which has been provided to Interpol. It is also important to note that Interpol does not own the information with which it is provided – it belongs to the relevant state/NCB.
Challenging Interpol Notices will almost always be accompanied by challenges to the collateral impact of the requesting state’s actions in other areas. For example, in circumstances where there may be proceedings against the subject of the Notice (possibly asset tracing, restraint or confiscation), litigation may provide a forum for the subject to identify concerns in relation to a Red Notice. The requesting state will be forced to deal with those concerns. Another avenue to be explored is an approach to the relevant NCB to request the amendment or deletion of information. Depending on resources, approaches can be made to a number of different NCBs. Although the NCB may direct any enquiry to the CCF, the NCB will be subject to local law, and, particularly, may be vulnerable to challenge under data protection legislation in its own jurisdiction. Finally, for the purposes of this note, a direct challenge to Interpol is an option. Obviously this is difficult given the organisation’s immunity from suit but there has been discussion as to whether the headquarters’ agreement between France and Interpol could be subject to challenge in the French Courts and ultimately before the European Court of Human Rights.
Interpol is becoming more concerned to ensure it is responsive to challenge. The recent changes to the Rules reflect that concern. Challenge may seem a somewhat labyrinthine process but in circumstances where a Red Notice can have a very real effect on a subject’s life, it is an avenue which should always be considered – particularly when the deletion of Notices appears to be rather more common than has been the case in the past.
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