Recent INTERPOL Reforms Provide Insight Into Strategies for Challenging Improper Red Notices

In the past decade, as the use of Red Notices by the International Criminal Police Organization (INTERPOL) member states has increased dramatically, so too have calls for INTERPOL to strengthen its gatekeeping function and guard against national authorities' potential misuse of this powerful tool of international law enforcement cooperation. Even though INTERPOL's Constitution prohibits the use of Red Notices to target political opponents or to pursue groundless or improper claims, the procedures by which INTERPOL issues and reviews Red Notices—and the options for challenging them—have not always been clear. After significant international criticism as well as numerous individual complaints, INTERPOL recognized these problems and has taken steps toward greater transparency and due process. This Advisory provides background information on INTERPOL and its Notice system, details INTERPOL's recent reforms, and analyzes redacted decisions addressing requests to delete Red Notices by the Commission for the Control of INTERPOL's Files, whose reasoning provides a helpful roadmap for individuals to contest improper or unfair Red Notices.

INTERPOL's Notice System

INTERPOL is not a police force, but rather an international organization that facilitates law enforcement cooperation among member countries. INTERPOL enables its 194 member states' law enforcement agencies to share and access data on crimes and persons of interest, often through color-coded "Notices." These color-coded "Notices" are law enforcement alerts prepared by individual member countries that, once approved, are published by the General Secretariat and circulated to every other member country.¹ Alternatively, a member country may request a "Diffusion," which is a less formal alert circulated directly by that country to another individual country or group of countries.²

INTERPOL's Red Notices, the most consequential type of Notice, "seek the location and arrest of a person wanted by a legal jurisdiction or an international tribunal with a view to his/her extradition."³ A Red Notice may be issued based on an arrest warrant or court order issued by judicial authorities in the country seeking the notice. A Red Notice contains both (1) identity details about the suspect—including a photograph or physical description, fingerprints, and identity document numbers—and (2) information about the suspect's conduct—including the offense charged, laws under which the suspect is charged or was convicted, and references to the arrest warrant or sentence.

Under INTERPOL's Constitution and rules, however, not every offense is properly subject to a Red Notice. A Red Notice must concern a "serious ordinary-law crime" and must not be an offense "relating to behavioral or cultural norms," "relating to family/private matters," or "originating from a violation of laws or regulations of an administrative nature or deriving from private disputes, unless the criminal activity is aimed at facilitating a serious crime or is suspected of being connected to organized crime."⁴ Additionally, to seek to prevent INTERPOL mechanisms from being used for minor offenses, if an individual is sought for prosecution, the conduct must be punishable by a maximum deprivation of liberty of at least two years.⁵ Relevant to many contested cases, Article 3 of the INTERPOL Constitution makes it "strictly forbidden" for INTERPOL to "undertake any intervention or activities of a political, military, religious or racial character."⁶

Improper Use of Red Notices

Member states' use of Red Notices has been on the rise over the last decade. In particular, the issuance of new Red Notices increased sharply beginning in 2009, when INTERPOL introduced a system called "I-link" that enabled member states to enter the content of Red Notices directly onto INTERPOL's databases.⁷ The number of new Red Notices rose from 3,126 in 2008 to 5,020 in 2009, and later to 6,344 in 2010, the first year that all new Red Notices were issued through I-link.⁸ INTERPOL subsequently ended the ability of national authorities to disseminate Red Notice data directly, but the use of Red Notices among member states has remained high. In 2019 alone, INTERPOL issued 13,377 Red Notices,⁹ and currently there are approximately 62,000 Red Notices in circulation, roughly 55,000 of which are non-public.¹⁰

As the use of Red Notices has increased, INTERPOL has come under intense international scrutiny for certain member states' politicized use of the Red Notice system to target political opponents, dissidents, journalists, and other perceived adversaries. In 2012, the International Consortium of Investigative Journalists found that more than 2,200 published Red Notices came from countries listed by Freedom House as significantly restricting political rights or civil liberties.¹¹ An individual subject to a Red Notice is at risk of facing difficulty traveling or obtaining immigration benefits, employment challenges, freezing or forfeiture of bank accounts, reputational harm (if the Notice is public), and potential arrest. Moreover, because so many Red Notices are non-public, an individual may not even know of these risks—let alone be in a position to mitigate them—until the Red Notice results in adverse action.

INTERPOL Reforms

As a result of international criticism and challenges by individuals sought under Red Notices, INTERPOL has adopted a number of reforms. For example, in 2015, INTERPOL announced a refugee policy that would allow the removal of a Red Notice if the individual is classified as a refugee under the terms of the 1951 Refugee Convention.¹² In practice, this policy has not prevented the initial dissemination of INTERPOL alerts for refugees, though it has allowed refugees to challenge such alerts after their issuance. For instance, Nadejda Atayeva, who was charged by Uzbek authorities with embezzlement along with her brother and father after they questioned Uzbekistan's food production policies, successfully challenged her Red Notice in 2015, years after she had become a refugee in France.¹³ Similarly, Paramjeet Singh, an Indian activist for Sikhs' right to self-determination who was charged with murder and terrorism—reportedly without evidence—had his Red Notice deleted in 2016 after the United Kingdom granted him asylum in 2000 (but not before he was arrested based on the Red Notice while on vacation in Portugal).¹⁴

In 2016, INTERPOL established a process for reviewing Red Notices before they are circulated to member states' National Central Bureaus. From 2009 to 2016, member countries could enter provisional Notices directly into the INTERPOL system without prior review by the General Secretariat.¹⁵ Now, a task force made up of 30-40 staff within the General Secretariat reviews incoming Notice requests before they may be published to other member countries. While little information is available regarding the standards or process that this task force applies, this initial review appears designed to screen out Notice requests that are facially non-compliant with INTERPOL's Constitution and rules or that have already received substantial international criticism.¹⁶

Also in 2016, INTERPOL restructured the Commission for the Control of INTERPOL's Files (CCF or the Commission) to provide greater transparency and a more robust process for individuals who wish to contest Notices. These reforms first clarified that the CCF "shall be independent in the performance of its functions."¹⁷ The CCF also was split into two specialized chambers: the Supervisory and Advisory Chamber, which supervises INTERPOL's compliance with its data processing rules and provides advice to INTERPOL on such activities, and the Requests Chamber, which addresses individual complaints and requests for access to data.¹⁸ The Commission meets at least three times a year and reviews submissions in camera.¹⁹

Furthermore, since 2017, INTERPOL has published certain redacted CCF decisions, which provide examples of how INTERPOL applies the Article 3 neutrality provision and other provisions of its Constitution and rules. These decisions give real-world color to the principles articulated in INTERPOL's Repository of Practice on Article 3, which has been public for several years and compiles information about "the extensive experience developed by the Organization with regard to the implementation of [Article 3]."²⁰ These redacted decisions and the Repository of Practice are important resources for persons seeking to have Red Notices lifted or those acting on their behalf.

In 2019, INTERPOL also updated its Rules on the Processing of Data (RPD), which provide the standards under which the CCF conducts its review of complaints and govern individuals' requests to have their data removed from the INTERPOL Notice system.

INTERPOL's Implementation of Its Constitution and Rules

INTERPOL's processing of data—including any issuance of a Red Notice requested by a member state—must comply with its Constitution and rules. The following provisions, in particular, are often relevant to assessing potentially improper Red Notices:

• Article 3 of INTERPOL's Constitution, which prohibits the organization from engaging in any "activities of a political, military, religious or racial character."
• Article 2 of the Constitution, which states that INTERPOL's activities should be carried out "in the spirit of the 'Universal Declaration of Human Rights.'"
• RPD Articles 34(1) and 34(2), which provide that National Central Bureaus, national entities, and international entities shall ensure that the data are in compliance with Articles 2 and 3 of the Constitution prior to recording them in a police database.
• RPD Article 34(3), which specifies seven factors to consider in determining whether data comply with Article 3.
• RPD Article 82, which explains that the "[p]urpose of red notices" is "to seek the location of a wanted person and his/her detention, arrest or restriction of movement for the purpose of extradition, surrender, or similar lawful action."

One of INTERPOL's most important obligations is its responsibility not to "undertake any intervention or activities of a political, military, religious or racial character."²¹ In its Repository of Practice on Article 3, INTERPOL distinguishes between "pure offenses," which are criminalized solely due to their political/military/religious/racial nature and are virtually never compliant with Article 3, and "relative offenses," which contain elements of ordinary criminal law and therefore may be appropriate subjects of a Red Notice even if the enforcement action also has some political elements.²² For example, treason is a pure political offense, whereas wire fraud and money laundering are matters of ordinary criminal law that can be misused by national authorities for political purposes. For "relative offenses," INTERPOL has adopted a test to determine whether political, military, religious, or racial elements "predominate" in a given case. Pursuant to RPD Article 34(3), the General Secretariat considers the nature of the offense, status of the persons concerned, identity of the source of information, position expressed by INTERPOL members, obligations under international law, implications for INTERPOL's neutrality, and the general context of the case.²³

The CCF has applied the predominance test in a number of recent decisions. The individual challenging a Notice must show that political elements predominate, which is a difficult burden to meet without clear evidence of political motivation. The Commission often determines that even if there are some political elements surrounding a case, the political elements do not predominate over the ordinary criminal law elements.²⁴

Certain elements—including foreign criticism or the denial of extradition by other member states—can make it more likely that the Commission will find an individual Red Notice to be political in character. The Commission considers whether other countries, international entities, or nongovernmental organizations have criticized the charges or convictions against an individual as politicized or violative of standards of due process. For example, the CCF deleted a Red Notice for a journalist whose prosecution had been condemned by multiple free press organizations as politically motivated.²⁵ On the other hand, the CCF has cited the lack of criticism by National Central Bureaus or international organizations as a basis, even amidst some political elements, to determine that a Notice is not predominantly of a political character.²⁶

In addition, the Commission weighs, but does not consider dispositive, whether the country where the individual is currently located has denied extradition of that individual and, if so, on what basis extradition was denied.²⁷ For example, the CCF deleted a Red Notice relying in part on one country's denial of extradition due to significant due process issues and potential racial and religious discrimination.²⁸ The CCF has observed, however, that "the mere fact that one of INTERPOL's Member countries has denied the extradition of an individual subject to a Red Notice does not, in itself, directly affect the compliance of the corresponding data registered in INTERPOL's files."²⁹ The Commission looks at whether the refusal to extradite "is purely procedural or connected to issues linked with analogous principles which are part of INTERPOL's rules."³⁰

The CCF has also rejected Red Notices for minor crimes—such as a single instance of writing an unfunded check³¹ or stealing mobile phones³²—because the CCF has determined that they are not sufficiently serious and do not warrant international police cooperation.³³

Additionally, significant procedural irregularities in a foreign investigation or conviction can serve as grounds to deem a Red Notice not compliant. In one decision, the CCF determined that the conviction in absentia of a political opponent of a certain country was not compliant with the INTERPOL Constitution, based on criticism by other countries and international entities of that country's conduct.³⁴ In another decision, the CCF determined that the use of torture to extract the subject individual's confession made the Red Notice not compliant with the INTERPOL Constitution.³⁵ The CCF further considers whether extradition to the requesting country would violate the international law principle of non-refoulement (the commitment not to return refugees or asylum seekers to a country where they are likely to face persecution) or other universal human rights principles.³⁶

Conclusion

INTERPOL's recent reforms have led to increased transparency in its processes. This greater insight into the issuance of Red Notices provides individuals and their advocates with stronger legal bases to contest them. The General Secretariat's advance review of Notices serves an important screening function, but some individuals will still have to resort to filing requests for deletion with the CCF to protect themselves from the harms that arise from the misuse of Red Notices by INTERPOL member states. The CCF's redacted decisions—along with its Constitution, recently revised RPD, and Repository of Practice on Article 3—provide a useful roadmap for individuals who are unfairly subject to Red Notices to contest their status.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.