Written submission to INTERPOL s Working Group on the Processing of Information

Transcription

1 Written submission to INTERPOL s Working Group on the Processing of Information Introduction 1. Fair Trials welcomes the opportunity to make a written submission to INTERPOL s Working Group on the Processing of Information ( the GTI ) and to make an oral presentation during the first meeting of the GTI on 3 rd July We are happy for this submission to be shared with all of INTERPOL s member countries that will participate in the work of the GTI. 2. Fair Trials is a London and Brussels-based human rights organisation working for the protection of the right to a fair trial according to internationally-recognised standards of justice. Our vision is a world where every person s right to a fair trial is respected. We pursue our mission in three main ways: by helping people to understand and defend their rights through our casework practice; by fighting the underlying causes of unfair trials; and by building an international network of fair trial defenders. Fair Trials is an a-political organisation. We do not charge for any of the assistance we provide and we are not funded by any domestic government. 3. Since 2012, we have highlighted individual cases of injustice caused by unchecked abuses of INTERPOL s Red Notice and Diffusion systems. We define abuse by reference to INTERPOL s own rules, namely alerts which contravene (a) Articles 2 and 3 of the Constitution, which require that INTERPOL s activities must be conducted within the "spirit of the Universal Declaration of Human Rights" and must not involve any intervention or activities of a political, military, religious or racial character respectively, and (b) the Rules on the Processing of Data, which provide an exhaustive list of the purposes of international police cooperation in Article 10 and which set out specific conditions for Red Notices in Article 83. The substance of INTERPOL s internal rules is not in question, as it demonstrates that INTERPOL is, like us, committed to ensuring that its systems are used in a manner which complies with international standards and respects the rights of individuals. Our concern, however, is that INTERPOL is not taking all the steps necessary to ensure proper compliance with those rules and we hope that the GTI will take this opportunity to make concrete recommendations as to how these rules can be made meaningful in practice. 4. Fair Trials is not alone in highlighting concerns about abuses of INTERPOL s alert systems. We have noted mounting concern amongst international and regional bodies, including the UNHCR, 1

2 the OSCE, the European Union institutions and the Parliamentary Assembly of the Council of Europe in the past two years, upon which we elaborate further below. Domestic authorities have also highlighted concerns regarding the reliability of the information which INTERPOL circulates, with the US Congressional Appropriations Committee stating in 2013 that it remains concerned that foreign governments may fabricate criminal charges against opposition activists and, by abusing the use of INTERPOL red notices, seek their arrest in countries that have provided them asylum. The issue of INTERPOL abuse has also attracted the attention of the international media, with reports published by The Washington Post, The New York Times, The Economist, The Telegraph, The Guardian and Al Jazeera in the past two years. 1 With INTERPOL s activities under external scrutiny and with growing political and media concern, this is clearly the right time for the GTI to examine these issues and propose its own solutions. 5. We have sought to assist INTERPOL in this task, by calling for reforms that would enable INTERPOL s General Secretariat to identify and prevent the circulation of alerts that are not compatible with INTERPOL s rules and that would create an effective mechanism to allow people to challenge alerts against them. We recognise the crucial role of INTERPOL in helping its member countries to fight serious cross-border crime and have therefore sought to identify practical reforms that are workable and that would not undermine INTERPOL s effectiveness. About our INTERPOL work Strengthening respect for human rights, Strengthening INTERPOL 6. Fair Trials 2013 report, Strengthening respect for human rights, Strengthening INTERPOL 2 ( Strengthening INTERPOL ) contains all our main conclusions and recommendations on this topic, made with the aim of helping INTERPOL to protect its systems against abuse. 7. Our essential message is that INTERPOL is important to law enforcement authorities in a world requiring cross-border responses to crime, but that confidence in the system is being undermined due to the wanted person alerts system being used in cases which are unsuitable for international cooperation, leading to wasted resources and unjustified rights interferences. 1 See, for example, The Economist, Abusing Interpol: Rogue States, 16 November 2013, available at: The Washington Post, Fair Trials International group urges reforms for Interpol arrest, 29 November 2013, available at: Al Jazeera, Interpol accused of undermining justice, 20 march 2014, available at: and The Telegraph, Interpol: who polices the world s police?, 8 May 2014, available at: 2 Available at: 2

3 The source of our expertise, conclusions and recommendations 8. Our views are informed by our casework. We have undertaken applied work in over 25 cases, including making applications to the Commission for the Control of INTERPOL s Files ( CCF ). We cannot assist everyone who comes to us, and in other cases try to provide helpful information, mainly through our published Note of Advice on INTERPOL. 3 We do not accept remuneration for any service provided to individuals, and we do not receive funds from anyone who is subject to an INTERPOL alert. Our accounts are published with the relevant authorities. 9. We have also engaged in constructive dialogue with INTERPOL, through meetings in April 2012, September 2013 and March 2015, including with the former Secretary-General, Ronald K. Noble 4 and current Secretary General, Mr Jürgen Stock, 5 and through correspondence. 6 This has helped us understand INTERPOL better at a technical level and given us an appreciation of the challenges involved in creating effective and workable review mechanisms in a fast-moving and international policing organisation. 10. In parallel, we have engaged in extensive dialogue with other institutional actors, including within the European Parliament, the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe, exile groups, national MPs, national law enforcement personnel, legal practitioners and NGOs in various countries. We therefore have a good idea of the legal and policy landscape and of the varied interests and challenges of key institutional stakeholders as well as a very wide range of individuals subject to INTERPOL diffusions and red notices from countries across the globe. 11. We accept that there are a number of different organisations and individuals interested in this discussion, each with their own interests and agenda. We offer our own perspective, motivated solely by an interest in the rule of law, and are pleased to make representations to the GTI in that spirit. IMPROVED ENFORCEMENT OF INTERPOL S RULES 12. In Strengthening INTERPOL, we set out our concerns regarding the various ways in which INTERPOL s rules are not being complied with in practice. We fully recognise the challenges which often under-resourced national police services face in tackling both domestic and crossborder crime and the reality faced by NCBs in many of INTERPOL s member countries where INTERPOL press release on the meeting: 5 INTERPOL press release on the meeting: 6 See, e.g. our letter of 24 October 2013 on INTERPOL s approach to hooliganism offences, on which the CCF later issued comments: 3

4 limited resources make it hard for them to identify, on all occasions, which cases are not suitable for INTERPOL alerts. It is therefore paramount that INTERPOL has systems in place to weed-out such cases preferably before information is circulated through its databases, and our conclusions and recommendations (set out in the Annex to this submission) attempt to provide practical and achievable solutions. This submission examines the key areas for the GTI s consideration. Ex ante control of alerts by INTERPOL s General Secretariat 13. The problem in relation to the ex ante control of information by INTERPOL s General Secretariat is that not enough is being done to detect and prevent inappropriate uses of the system before publication (Red Notice) or approval (Diffusion) of an alert. It is widely recognised that in certain political contexts, domestic authorities use the criminal justice system to restrict the activities of high profile human rights defenders, political opponents and journalists in violation of international human rights standards. In 2012, the then UN Special Rapporteur on Human Rights Defenders described the problems to the United Nationals General Assembly: Human rights defenders have been detained, arrested prosecuted, convicted, sentenced and harassed by Governments under the guise of the enforcement of anti-terrorism legislation and other legislation relating to national security. In the past few years, defenders exercising their rights to freedom of expression, freedom of association and [ ] freedom of peaceful assembly have been at particular risk Our casework has demonstrated how INTERPOL s systems have been used as a tool to export such violations beyond domestic borders and across the globe, with the result that the credibility of INTERPOL s alerts has been called into question. In June 2013, following an embarrassing situation in which the Australian authorities relied upon information in an INTERPOL Red Notice which was later found to be incorrect, the Australian Immigration Minister, Brendan O Connor, commented that the Australian police must examine the veracity of Red Notices because quite often the claims within them are found to be wrong. 8 Further, in 2010, a Canadian Federal Court judge warned against treating a Red Notice as conclusive for the purpose of excluding a person from refugee status pursuant to Article 1F(b) of the 1951 Convention relating to the Status of Refugees due to doubts casted on its content. 9 7 Sekaggya, M., UN Special Rapporteur on Human Rights Defenders, Report to the General Assembly, 2012, A/67/292, paragraph The Age, Interpol notices 'often wrong': Minister contradicts AFP, 17 June 2013, available at: 9 Rihan v. Minister of Citizenship and Immigration [2010] FC

5 15. We note that INTERPOL has made efforts to improve the process by which alert requests are initially reviewed. We were pleased to learn in March 2015 that changes to the review process have been instituted, in line with recommendations made in Strengthening INTERPOL, to ensure that alerts are not visible to other NCBs until they have been reviewed by INTERPOL. 10 Prior to this, ex ante control was flawed in that an alert was circulated in draft form (for a Red Notice) or directly (for a Diffusion) through INTERPOL s systems by the NCB, with INTERPOL reviewing the information afterwards, by which time the information had been copied onto local databases. This led to unfortunate situations, for example when a recognised refugee was arrested in Poland on the basis of an INTERPOL alert which turned out to have been deleted. Embarrassed, the then Polish interior Minister, Jaceck Cichocki, proposed reforms which Fair Trials also made in Strengthening INTERPOL, namely that alerts should not be visible to other NCBs until they have been reviewed by INTERPOL. 16. We remain concerned, however, that this more recent development concerns the process rather than the substance of the review (ie. when an alert is approved and not whether it will be approved or not). We are told that INTERPOL does review the substance of alerts, asking additional questions of countries, checking requests against international legal standards and keeping a watch-list for potentially problematic cases. 11 Our casework suggests, however, that these reviews fail to identify certain abuses which, with more detailed scrutiny, could have been spotted. The solution we propose in relation to the ex ante control of information by INTERPOL s General Secretariat at the point when a notice is published is that it should simply dedicate more effort, resources and diligence to conducting these reviews, so as to detect more abuses. This should involve scrutiny, by appropriately trained individuals, of open source materials, human rights reports and information from the requesting country including, if possible, the arrest warrant. We suggest in particular that NCBs should be required to supply an arrest warrant (we understand this to be optional at present), or at least sufficiently full and clear information to enable a meaningful review. In the interests of transparency, INTERPOL should also provide more disclosure about the nature and extent of its ex ante reviews. Ex post redress offered by the CCF 17. INTERPOL alerts come with considerable human impact: arrest, detention, frozen freedom of movement, employment problems as well as reputational and financial harm. These interferences with basic rights can, of course, be justified when INTERPOL acts to combat international crime. However, when alerts are used against human rights defenders, political 10 See 11 Chatham House summary of a meeting of : 5

6 opponents, journalists, often refugees, based on criminal proceedings which violate international human rights standards, it is vital that an effective avenue of redress is available. 18. Much responsibility rests with the CCF. For one thing, the General Secretariat may not know key information at the ex ante stage (e.g. that someone is a refugee), so the person may need to supply it to the CCF. And in any system, errors will occur, and a redress mechanism is needed. 19. The CCF is also important because it is the only realistic avenue of recourse for individuals concerned as national courts do not hear cases against INTERPOL a situation which INTERPOL is understandably concerned to maintain. 12 There is clearly a growing challenge for international organisations whose work has human rights implications, as with INTERPOL, to create effective internal review mechanisms which justify their immunity from national or any other form of oversight (see Kadi 13 (Court of Justice of the EU), Waite & Kennedy v. Germany, 14 Nada v. Switzerland 15 (ECtHR) and related cases). 20. The CCF does not, however, offer an effective avenue of redress. Its proceedings fall well short of meeting basic procedural standards and its decision-making cannot be considered sound because, simply, it is very difficult to determine how it does it. In particular: a. The proceedings before the CCF do not ensure equality of arms as one side is not able to comment on the observations and evidence of the other (the ECtHR s basic definition of equality of arms). While we recognise that INTERPOL will need to respect the concerns of NCBs which will want to avoid full disclosure of evidence to an individual before they are extradited to face charges, it should be possible to provide at least a summary of the key facts and evidence so as to enable a decision to be made as to whether there is a basis for challenging the alert or not. b. The decisions of the CCF contain no explanation of the basis on which they are reached. In response to our lengthy submissions detailing the grounds for deletion of an alert, we have received decisions from the CCF which are less than one page long and do not explain how INTERPOL s rules were applied to the facts of the case. This raises separate issues relating to the interpretation of INTERPOL s rules (see below), but whatever the approach, it is not possible to have confidence in it if the approach is not explained. 12 There is a provision in INTERPOL s Constitution referring individual disputes to the Permanent Court of Arbitration in The Hague. We are not aware of anyone taking this route, which raises novel jurisdictional issues. 13 Joined Case C-402/05 P and C-415/05 P Kadi & Al Barakaat v Council ECLI:EU:C:2008: Waite and Kennedy v. Germany App. No 26083/94 (Judgment of 18 February 1999). 15 Nada v. Switzerland App. No 10593/08 (Judgment of 12 September 2012). 6

7 c. The expertise of the CCF was, at least at the time of publication of Strengthening INTERPOL, an issue. It was staffed by five members three data protection experts, a computer expert and a police cooperation expert none of whom had significant background in key areas (criminal law, extradition and asylum, general human rights law aside data protection). It also appeared to be understaffed and under resourced (we understand its secretariat to count just a handful of paid staff). d. The CCF, in addition, does not possess binding powers. It issues recommendations, which are admittedly almost always followed, but it cannot order an outcome and the General Secretariat has the opportunity to respond with further comments. This has to be taken together with the fact the CCF has a practice of recommending the use of addenda or caveats instead of deleting the file which is the only way to ensure that the rights of the individual in question are adequately protected. e. In addition, there are significant delays with the process of applications to the CCF. We are still waiting for a response to one request for access to information lodged in August 2012 (33 months at the time of writing). Another, more complex application for removal of information lodged on behalf of a refugee based in Lithuania in September 2013 has not met with a response yet either (20 months at the time of writing). We recognise that these delays are attributable mainly to NCBs, who need to liaise with other national authorities to obtain information, but it is clear that the CCF does not possess powers to hold NCBs to reasonable timeframes for responding to requests from individuals for access to the information on INTERPOL s databases or to requests from the CCF for further information to enable it to reach a decision regarding whether or not the alert complies with INTERPOL s rules. Our view is that an alert should be blocked where the NCB fails to respond within a reasonable time, and then automatically deleted where such failure to respond continues for a further specified time period. 21. We note that INTERPOL has taken steps to address some of these concerns. We were pleased that, in September 2013, Ms Nina Vajic, a former judge of the ECtHR and an expert in international organisations law, was appointed as Chair of the CCF. We also recognise that the CCF does provide occasional indications of how it views INTERPOL s rules in its Annual Activity Reports. 16 Without reference to concrete examples, however, it is often difficult for both individuals and INTERPOL s member countries to determine how its approach to particular issues will play out in practice. 16 These are online at 7

8 22. The solution which we proposed on Strengthening INTERPOL is, in summary, a comprehensive review of the operation of the CCF and a reform of various aspects of its procedure to address the problems mentioned above so as to protect INTERPOL s immunity and NCBs from domestic, or any other form of, legal challenge. We took the view that a separate quasi-judicial chamber of the CCF should be created to deal with complaints, appropriately composed, with procedures ensuring equality of arms and reasonable timeframes, binding, reasoned decisions 17 and an appeal mechanism. The suggestion of a separate chamber was made with a view to enabling the then-current CCF, with a strong focus on data protection, to keep doing its work advising INTERPOL on a horizontal basis, leaving a separate body to handle complaints. However, it is the quality of the proceedings, from the perspective of procedural fairness standards, which matter. While we do not presume to know what the CCF procedure should involve, particularly in light of the need for it to reflect the reality and requirements of the international policing context, we hope that the GTI will consider our principled recommendations as to what is required to ensure that the process is fair and that the CCF provides normative explanations of why and how it reaches its decisions. Interpretation / application of the Constitution and rules 23. As stated above, Fair Trials acknowledged in Strengthening INTERPOL that the text of the INTERPOL Constitution and rules provides a framework which should, if adequately enforced, serve to protect INTERPOL s systems from abuse as well as the rights of individuals subject to alerts. We note, however that problems have arisen in relation to the interpretation and application of certain of these provisions. 18 Article 3 of the Constitution 24. Article 3 provides that it is strictly prohibited for the Organization to undertake any intervention or activities of a political, religious, racial or military character. A Repository of Practice produced by the INTERPOL General Secretariat confirms that this is interpreted in line with the political offence exception in extradition law (see, for example, Article 3(1) of the European Convention on Extradition 1957 (the ECE 1957 )), leading to the application of the predominance test developed by, inter alia, the Swiss courts. That concept narrowed in the 1970s in order to ensure terrorism and other violent crimes committed with political ends could be the subject of extradition, and INTERPOL narrowed its rule accordingly by two General Assembly resolutions. 17 It is worth noting that the Joint Supervisory Body, which oversees the activities of the EU police body, Europol, has a practice of issuing published, reasoned decisions, which are made available online subject to necessary anonymisation. 18 References for all that follows are contained in Strengthening INTERPOL, pp , and

9 25. However, as we observed in Strengthening INTERPOL, there appears to be no role in INTERPOL s analysis for the sort of test in Article 3(2) of the ECE 1957 whether there are substantial grounds for believing that the person is being prosecuted on account of their political opinions which has become more current as the other test narrowed. INTERPOL has, over time, started to modernise its approach, establishing certain criteria for assessment of Article 3 issues, which include the status of the person and the general context of the case. However, the language in INTERPOL / CCF materials continues to speak of balancing the Article 3 aspect against the ordinary-law aspect, and the approach appears to have evolved from the classic predominance test into something else, which we do not grasp because there is no public guidance. 26. We appreciate that these are legalistic issues, and we accept that INTERPOL is a separate entity with its own culture and rules. But the current situation presents problems of legal certainty and consistency between cases. In the absence of a record of published decisions of the CCF from which to discern its approach, NCBs face difficulties in deciding which alerts can be published and what evidence is required, and those challenging alerts before the CCF have no basis upon which to assess whether their challenge is valid and/or what evidence they should present in order to ensure its success. Article 2 of the Constitution 27. Article 2 of the Constitution provides that it should facilitate international police cooperation in the spirit of the Universal Declaration of Human Rights. This is a commitment on INTERPOL s part to respecting international human rights norms, which must be recognised. 28. The problem is, again, that INTERPOL s approach to this norm is not easily identified. Only one clear example is known. It was said in a Chatham House meeting at which INTERPOL spoke that INTERPOL seeks to identify internationally-shared standards, and apply them. Thus, if an alert is requested against a minor seeking the death penalty, this would fall to be refused, as there is a recognised standard excluding the death penalty for minors; however, if the alert is requested against an adult, this would be valid, because international law does not at present contain any standard excluding the death penalty as such The difficulty for us has been in the fact that there are very important, universal or very widelyshared standards, which are of clear relevance and where INTERPOL s approach is not known: the prohibition of torture (the risk of physical torture, or the use of evidence obtained by torture); the prohibition on the return of refugees under the 1951 Convention; and the 19 Chatham House summary of a meeting of : 9

10 prohibition on the return to face discriminatory prosecution in application of norms like Article 3(2) of the ECE Data protection 30. Data protection standards are, to some extent articulated in INTERPOL s Rules on the Processing of Data ( RPD ). 20 For instance, these rules specify that data can only be processed through INTERPOL s channels for enumerated purposes of police cooperation, one of which is to seek the arrest of a person with a view to extradition. A specific rule, Article 81, requires the withdrawal of a notice when the purpose of the notice has been achieved or where the requesting NCB has received information enabling it to achieve the purpose (i.e. seek extradition) and has not done so. This is consistent with the rule that data should be used only for specific lawful purposes, yet is (according to our casework) frequently violated when countries responsible for publishing a Red Notice fail to seek extradition following the arrest of an individual on the basis of that alert. Recent developments 31. We welcome two recent developments which demonstrate INTERPOL s commitment to clarifying the approach which it takes to the interpretation and application of Articles 2 and 3 of its constitution. Firstly, we were delighted to learn in May 2015 that the General Secretariat has circulated guidance to all NCBs that it will remove a Red Notice if it can verify that the person has been recognised as a refugee under the 1951 Convention. Fair Trials strongly welcomes this new policy as a real step forward in line with a key recommendation in Strengthening INTERPOL. We note, however, that several questions and practical challenges remain, particularly in relation to how to ensure that (a) all refugees subject to alerts are able to make use of the policy, (b) national authorities do indeed confirm that asylum grants exist where necessary, and (c) the confidentiality of the refugee s whereabouts is always protected. 32. The second development relates to an amendment to the Rules on the Processing of Data, brought into force following the General Assembly of 2014, which now states that INTERPOL should prepare a repository of practice on Article 2 of its Constitution, in addition to the one which already exists on Article 3 of the Constitution. We hope that the substantive standards that emerge will be satisfactory. Our proposed solutions 33. While some of the recommendations in Strengthening INTERPOL have already been implemented, as outlined in paragraphs 31 and 32 above, we encourage the GTI to consider our 20 Available at (bottom of page). 10

11 further recommendations regarding the interpretation and application of INTERPOL s Constitution and rules. 34. While a Repository of Practice on Article 3 already exists, our view is that INTERPOL should provide further detailed information on how it assesses whether or not Article 3 applies in a particular case. Further, in order to bring itself in line with international asylum and extradition law, we recommend that INTERPOL adopt the test in Article 3(b) of the UN Model Extradition Treaty as it is applied by extradition courts. We also recommend that, in line with the new policy on alerts for individuals with refugee status, INTERPOL should adopt a clear rule requiring the deletion of an alert when a request for extradition based on the proceedings giving rise to the alert has been rejected on political motivation grounds or on the basis of other human rights concerns. 35. In line with this, we have concerns about INTERPOL s continued use of addenda or caveats, added to alerts to reflect the fact of decisions refusing extradition. Given that INTERPOL has determined that this approach is no longer valid in cases where asylum has been granted, and in which deletion of the alert is the now the required response, our view is that the same approach should be adopted in relation to extradition refusals. One argument that has recently been put forward by INTERPOL s former General Counsel, Mr Rutsel Martha, is that the addition of addenda presents a better solution than deleting the alert. 21 The theory is that, if a person is encountered by another country, the existence of a note on the INTERPOL file acknowledging that another country has refused extradition on political motivation grounds would be a powerful indication to take no further action; absent the alert and an addendum, a person could be arrested on the basis of a bilateral request, without any record of the earlier decision, presenting a greater risk to the individual. Our view is that absent any data or case examples (we have seen none) demonstrating that addenda actually prevent arrests, we do not accept this view and would encourage the GTI not to accept it either. We also note in passing that, though there may be exceptions, Red Notices available on INTERPOL s website do not normally feature addenda. The CCF has suggested that either addenda should be included on the public extract, or the latter should be removed, 22 but this suggestion seems not to have been taken up. 36. Finally, we have recommended a practice whereby the General Secretariat, when informed of an arrest, systematically follows up with the NCB of the arresting country either six or 12 months after the event, and asks standard questions as to whether an extradition request was made and whether this was accepted or refused, and on what grounds. 21 This view was expressed at the seminar Challenging INTERPOL Red Notices: a practical guide organised by Doughty Street Chambers, London, on 22 May 2014, at which Dr Martha spoke. Fair Trials also attended. 22 See the Annual Activity Reports, via the link at note 16 above. 11

12 THE CONTINUING PRESENCE OF ABUSES 37. INTERPOL s and the CCF s reactions to Strengthening INTERPOL were constructive. 23 However, INTERPOL has occasionally suggested that the cases in that report were isolated examples, and that it is continually improving its systems such that major reforms are not needed. It has also previously quoted a very small figure (3%) for the number of cases which are referred to its Office of Legal Affairs due to a suspected issue of compliance with Article 3 of its Constitution. 38. Since Strengthening INTERPOL, the number of Red Notices, which had already increased sharply in the last decade, continued to grow, reaching over 10,000 last year according to figures quoted by INTERPOL at the UNODC Congress in Doha in April We do not doubt that cases of abuse are a minority, though we are not in a position to comment as we do not have the statistics. 39. What we do know is that, in all of the cases in which we have done some work, no extradition has taken place. We are therefore keen to know what percentage of alerts actually result in extradition, which would provide a more telling indication of the quality of all this information, but this information is not publicly available. What we can say is that since the publication of Strengthening INTERPOL, we have continued to receive enquiries about new cases, many of which demonstrate continuing failings in ex ante and ex post controls, calling for renewed focus on concrete reform. THE CONTINUING REFORM DISCUSSION 40. The GTI s review of the processing of information by INTERPOL takes place at key moment, as other regional entities are simultaneously conducting their own forms of external scrutiny. In October 2014, the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe resolved to produce a report with the title Abusive use of the Interpol system: the need for more stringent legal safeguards under the rapporteurship of Bernd Fabritius of Germany. The Rapporteur has already heard evidence from INTERPOL and Fair Trials and will be seeking further input before producing his report later in We hope that the GTI will engage with the Rapporteur given that the Committee is ideally placed to offer views to INTERPOL on key legal issues relating to international rules, since some of the most relevant eg. the ECE 1957, the case-law of the ECtHR on torture come from the Council of Europe. 41. As detailed in Strengthening INTERPOL, EU parliamentarians had already asked a number of questions regarding the situation of refugees wanted through INTERPOL and other topics, with the European Commission subsequently agreeing to engage in dialogue with INTERPOL on these issues and to contribute to Interpol s further work in the field of data protection. The 23 INTERPOL recognised it; the CCF welcomed it. 12

13 Organisation for Security and Cooperation in Europe ( OSCE ) Parliamentary Assembly has also issued calls for reforms in two of its recent annual Declarations. These regional institutions are joined, as stated above, by domestic authorities who have also highlighted the problems of abuse and the need for reform. In addition, international bodies such as the UN Special Rapporteur on Human Rights Defenders (see paragraph 13 above) and the UN High Commissioner of Refugees have added their own critical voices to the debate The reliability of INTERPOL s alerts has also been called into question in domestic courts, with the views of the Canadian Federal Court in paragraph 14 above. In addition, the way in which NCBs have used and acted in response to information on INTERPOL s databases has been subject to the type of domestic legal challenges which we understand both INTERPOL and NCBs alike would wish to avoid. It is clear, therefore, that the time is ripe for the GTI s review which we hope will identify solutions to the problems set out in this paper. PART 4 CONCLUSIONS AND RECOMMENDATIONS 43. In light of the above, we encourage the GTI to conduct a comprehensive analysis and make practical recommendations to INTERPOL with a view to encouraging useful reform. Our full list of recommendations is set out in Strengthening INTERPOL but the following are some specific suggestions for the GTI to take into consideration: a. GTI Procedure: We are not currently familiar with the full remit of the GTI nor whether it has the mandate to make reform recommendations as a result of its review. We hope, however, that it will take this long-awaited opportunity to conduct rigorous internal scrutiny of INTERPOL s systems and make all recommendations necessary to protect INTERPOL s systems from the abuse to which it has become all too frequently subject. As part of the review process, we recommend that the GTI takes the opportunity to hear from a wide range of stakeholders including non-governmental organisations, lawyers and individuals who have been subject to alerts that INTERPOL has determined are abusive so as to ensure that it has all relevant information at its disposal. b. Ex ante review: We recommend that the GTI obtains information regarding not only the General Secretariat s procedure for reviewing alerts before they are published, but also the specific substance of that review. To the extent that the GTI is not satisfied that alerts are 24 Vincent Cochetel, Deptuy Director of the division of International Protection Services, UNHCR stated in 2008, while discussing issues which undermined international protection, that UNHCR is also confronted [with] situations whereby refugees when travelling outside their country of asylum are apprehended or detained, due to politically-motivated requests made by their countries of origin which are abusing of Interpol s red notice system. Such persons are often left without access to due process of law, and may be at risk of refoulement or find themselves in limbo if they are unable to return to their country of asylum. Available at: 13

14 reviewed with reference to publicly-available materials, human rights reports and relevant international and regional human rights standards and jurisprudence, we hope that it will recommend that a new approach should be adopted. Further, if the General Secretariat is still not insisting that NCBs supply an arrest warrant before an alert is published, the GTI should recommend the introduction of this requirement. c. Ex post review: We recommend that a thorough assessment of the CCF s adequacy as a redress mechanism should be a priority for the GTI, perhaps drawing on the examples of other bodies providing avenues of redress within international organisations with a view to identifying best practice. Developed through experience in a significant number of cases, our view is that the CCF currently falls short of meeting basic procedural standards. Further, while recognising the concerns relating to disclosure in the context of international police cooperation, it is clear that the lack of transparency of CCF procedures means its decisionmaking is too often unreliable. We hope that the GTI will make strong recommendations for reform of this vital avenue of redress so as to ensure that it is able to deal with complaints with procedures ensuring equality of arms and reasonable timeframes binding, reasoned decisions and an appeal mechanism. d. Interpretation and application of INTERPOL s Constitution and Rules: While the text of INTERPOL s Constitution and internal rules appears to be satisfactory, particularly in relation to Articles 2 and 3 of the Constitution, there is a concerning lack of clarity regarding their implementation. We have previously recommended that further guidance on the approach taken by the General Secretariat and the CCF to these rules should be published and we hope that the GTI will support this suggestion. To the extent that further expert analysis is required, the GTI appears well-placed to commission such work. Following the welcome introduction of the new policy requiring the deletion of alerts for individuals who have been granted asylum, we recommend that the GTI explores the possibility of a similar approach being taken to extradition refusals on the grounds of political motivation or other human rights concerns. 44. Fair Trials remains at the disposal of the GTI and would be delighted to assist as best it can throughout the remainder of the review process. Fair Trials, 10 June