By Anagnostakis Law Team
The global landscape of international law enforcement cooperation, spearheaded by INTERPOL, is constantly evolving. While significant strides have been made in recent years to enhance the integrity and accountability of its systems, further reform is imperative to address ongoing challenges that impact individuals worldwide. This article outlines key areas where improvements are needed to ensure INTERPOL operates with the highest standards of fairness, transparency, and respect for human rights.
Addressing Procedural Delays and Enhancing Transparency
One of the most persistent issues within INTERPOL’s data review processes is the significant delays in decision-making. Despite statutory timeframes, requests for data access, correction, or deletion frequently exceed the stipulated periods, leaving individuals in prolonged states of uncertainty. This lack of adherence to established deadlines undermines trust and transparency.
To mitigate these delays and enhance predictability, it is crucial to:
Improve Communication: Provide more regular and consistent updates on case progress to applicants.
Increase Resources: Invest in additional support for the data review body to facilitate more frequent meetings and a larger casework team.
Streamline Disclosure: Enhance efficiency in the disclosure process to prevent delays stemming from information exchange.
The timely and effective oversight of INTERPOL’s systems is paramount to reinforcing public confidence.
The Imperative of Fair Disclosure and Equality of Arms
The principle of “equality of arms” is fundamental to fair legal proceedings, ensuring that all parties have an equal opportunity to present their case and respond to opposing arguments. In INTERPOL’s data review process, this principle is often compromised by current disclosure practices. Applicants frequently do not receive access to critical information or responses from national authorities until a final decision has been rendered, making it impossible to address arguments or evidence in a timely manner.
To uphold the right to an effective remedy and ensure procedural fairness, it is recommended that INTERPOL:
Implement Adversarial Exchange: Revise operating rules to ensure a true adversarial exchange of information, where applicants receive and can respond to observations from national bureaus before a decision is made.
Promote Summaries: Encourage the greater use of non-restricted summaries for confidential information, allowing applicants to understand the essence of opposing arguments.
Scrutinize Restrictions: Carefully scrutinize requests for information restriction, especially when they prevent the disclosure of summaries, to prevent their misuse as a means to shield submissions from scrutiny.
Increase Data Access: Provide increased access to the complete history of data published in INTERPOL’s information systems, particularly in complex cases involving multiple alerts over time.
Strengthening the Framework for Pre-Emptive Requests
Pre-emptive requests, where individuals seek to challenge potential data processing by INTERPOL before it is published, are increasingly common but operate under an uncertain legal framework. Current practices often involve provisional blocking of data, which is beneficial but lacks formal codification.
To provide a clear and consistent process for pre-emptive requests, INTERPOL should:
Formalize Procedures: Include specific provisions in its rules to explicitly govern pre-emptive requests, outlining clear steps for applicants and the INTERPOL General Secretariat.
Ensure Timely Decisions: Mandate prompt decisions on provisional measures by the data review body, ideally within a short timeframe, to prevent irreparable harm.
Notify Outcomes: Systematically notify applicants of the outcome of the General Secretariat’s compliance review, including any decision to publish or decline publication of an alert.
Enhancing Review for Wanted Person Diffusions
Unlike Red Notices, which undergo a review process before publication, Wanted Person Diffusions can be circulated by national bureaus via email without prior scrutiny by the INTERPOL General Secretariat. This absence of a pre-circulation review mechanism creates significant risks, as non-compliant diffusions can lead to unwarranted travel restrictions and detentions.
To address this vulnerability, INTERPOL should:
Implement Pre-Circulation Review: Introduce a review mechanism for Wanted Person Diffusions similar to that applied to Red Notices, preventing their accessibility to member countries pending legal review.
Increased Scrutiny for High-Risk States: Apply additional scrutiny to diffusions issued by states with a documented history of compliance concerns.
Prevent Non-Compliant Circulation: Establish an effective mechanism to prevent the circulation of diffusions when there is reason to believe they violate INTERPOL’s rules.
Recognizing Extradition Decisions and Refugee Status
Favorable extradition decisions in one jurisdiction often lack binding effect in others, leading to individuals facing multiple extradition proceedings despite previous judicial findings. This issue is particularly acute for refugees, who may remain subject to INTERPOL alerts even after being granted asylum, risking refoulement.
To ensure consistency and protect individuals’ rights, INTERPOL should:
Harmonize with Human Rights Law: Recognize and give binding effect to final and binding judicial decisions that refuse extradition on grounds consistent with INTERPOL’s constitution and international human rights principles, such as ne bis in idem (double jeopardy) or human rights violations.
Expand Refugee Policy: Explicitly extend INTERPOL’s refugee policy to provisionally block Red Notices and diffusions pending the determination of an asylum application, and to include former refugees and individuals with subsidiary protection.
Strengthen Information Sharing Safeguards: Clarify its approach to information sharing with asylum-granting states, ensuring that any data provided is subject to independent assessment to prevent inadvertent undermining of refugee protection.
Improving Confidentiality and Communication
Concerns about the confidentiality of information provided to INTERPOL’s data review body deter many individuals from seeking redress, fearing retaliatory action or diplomatic pressure from requesting states. This lack of clarity and assurance undermines the effectiveness of the review process as a remedy.
To build trust and encourage individuals to utilize the review mechanisms, INTERPOL should:
Publish Detailed Disclosure Guidelines: Provide more detailed public information on what data is shared between the data review body, the General Secretariat, and national bureaus, including redacted examples of correspondence where appropriate.
Establish Clear Internal Rules: Implement clear internal rules for the General Secretariat regarding the handling and onward disclosure of confidential information from pre-emptive requests.
Clarify Non-Processing Scenarios: Explicitly state that when no data is being processed by INTERPOL, the data review body is not required to disclose information to a national bureau regarding an access or pre-emptive request.
Enhancing Red Notice Publicity Review
The public circulation of Red Notices on INTERPOL’s website can have severe reputational and personal impacts. While intended to assist in locating individuals, this publicity can be misused, undermining the presumption of innocence and serving purposes beyond legitimate law enforcement.
To address these concerns, INTERPOL should:
Publicly Disclose Publicity Policy: Publish its policy on public disclosure of Red Notices, which currently appears in internal decisions but is not readily accessible to applicants.
Allow Pre-Publication Representations: Amend its rules to provide individuals with an opportunity to make representations regarding the publication of a Red Notice before it is made public.
Enable Discrete Publicity Challenges: Clarify that individuals can bring a separate challenge to the publicity of a Red Notice, distinct from a challenge to the notice itself, focusing on the criteria for public dissemination.
Reforming Revision Applications and Appeals
The high volume of revision applications submitted to INTERPOL’s data review body highlights systemic issues, including limited information disclosure during initial proceedings and the absence of a formal appeal mechanism. This burdens the system and delays justice for applicants.
To streamline the process and enhance fairness, INTERPOL should:
Reduce Revision Applications: Improve disclosure during initial proceedings and introduce a formal right of appeal against data review body decisions.
Adhere to Timeframes: Ensure compliance with existing timeframes for revision applications and enhance communication with applicants regarding their status.
Mandate Compliance: Require the General Secretariat to block all new data processing requests for individuals previously found to be non-compliant by the data review body, and mandate referral of such cases for review.
Commission Feasibility Study for Appeals: Conduct a feasibility study on establishing an appeal mechanism for data review body decisions, considering international human rights standards, best practices from similar bodies, and resource implications.
Address Past Harms: Implement mechanisms for retroactive review of non-compliant data processing and consider the General Secretariat’s responsibility in granting additional remedies, including a potential compensation fund for individuals harmed by unlawful data publication.
Ensuring Impartiality and Public Confidence in the Data Review Body
The independence and impartiality of INTERPOL’s data review body are crucial for its credibility as an effective remedy mechanism. Recent events have underscored the importance of robust appointment procedures and transparent operations.
To strengthen impartiality and public confidence, INTERPOL should:
Prioritize Independent Expertise: Emphasize the selection of members with adjudicative experience and backgrounds in independent legal professions, avoiding those with privileged relationships with governments or diplomatic ties.
Disclose Interests: Require data review body members to disclose their interests at the start of their mandate, with a publicly accessible register of interests.
Clarify Practice Adherence: INTERPOL should clarify whether the General Secretariat considers itself bound by the data review body’s interpretations of its rules.
Invite External Assessment: Proactively invite an independent expert, such as the UN Special Rapporteur on the Independence of Judges & Lawyers, to assess the data review body’s independence and functioning.
Stagger Appointments: Implement a staggered appointment policy for data review body members to ensure institutional memory and continuity.
Enhance Decision Publication: Expand the publication of anonymized data review body decisions to promote transparency and facilitate public scrutiny, potentially through a searchable database.
Promote Accountability Mechanisms: Publicly acknowledge and detail internal compliance programs and whistleblower provisions to demonstrate mechanisms for reporting misconduct.
By implementing these reforms, INTERPOL can solidify its commitment to safeguarding human rights, ensuring fairness, and maintaining public trust in its vital role in international law enforcement.
