INTERPOL’s new draft amendments to the CCF Statute could make it harder for applicants to challenge politically motivated extradition requests

1.  Abstract

In the Middle East and North Africa (MENA) region, states often abuse INTERPOL’s systems to target peaceful dissidents and human rights defenders through politically motivated extradition requests. As a result, individuals can be targeted by INTERPOL red notices and face extradition to countries where they face grave human rights abuses, including torture, which notably violates articles 2 and 3 of INTERPOL’s Constitution. As an NGO defending victims of human rights abuses in the MENA, MENA Rights Group documents such abusive extradition requests and challenges them before INTERPOL’s Commission for the Control of INTERPOL’s Files (CCF). On the basis of our expertise in engaging with INTERPOL, we have submitted a contribution regarding new draft amendments to the Commission for the Control of INTERPOL’s Files (CCF) Statute, shedding light on areas of concern and forming suggestions and recommendations for improvement.

This briefing paper was submitted as a response to a call for input on the review of the Statute of the Commission for the Control of INTERPOL’s Files (CCF).

2. The procedure for the examination of new requests

With regards to the Committee on the Processing of Data (CPD)’s consideration of draft amendments to articles 33, 37 and 40 of the Commission for the Control of Files (CCF) Statute, MENA Rights Group wishes to express several concerns regarding the increased powers the amendments would grant the General Secretariat in the context of assessing new requests for access to, or correction and/or deletion of, data processed in the INTERPOL Information System.

For reference, MENA Rights Group is a Geneva-based human rights NGO that notably documents and challenges the misuse of INTERPOL systems by states seeking to request politically motivated extraditions of activists, peaceful dissidents and human rights defenders from countries of the Arab League. We have engaged with INTERPOL on multiple occasions by filing requests for access to, or correction and/or deletion of, data processed in the INTERPOL Information System to the CCF, on behalf of individuals targeted by politically motivated notices, which we alleged were in violation of Articles 2 and 3 of INTERPOL’s Constitution.

First, we are concerned that the draft amendments would significantly expand the role of the General Secretariat in assessing and deciding on the compliance of requests before the CCF can conduct its independent review. Specifically, draft article 33 (1) on the examination of requests provides that “The Requests Chamber shall examine an admissible request only after the General Secretariat has taken a final compliance decision on the data concerned”. Draft article 37 (2) regarding provisional measures provides that “The Requests Chamber shall not decide on provisional measures before the notification by the General Secretariat of its final compliance decision on the data concerned”.

By relegating the CCF to a secondary, a posteriori role in the assessment process, we fear these amendments would undermine the CCF’s ability to conduct an independent and comprehensive review of the requests received. We are also concerned that while CCF members are required to have the necessary expertise to perform their functions (art. 37 INTERPOL Constitution), the General Secretariat is not bound by such a requirement, raising concerns about its capacity to undertake assessments and make decisions adequately and effectively. Under article 28 of the INTERPOL Constitution, the Secretary General, who is an integral part of the General Secretariat under article 27, must be chosen “from among persons highly competent in police matters”. Expertise in the field of human rights is not precondition for eligibility for the position.

In addition, while the CCF is an independent body (art. 36 INTERPOL Constitution), the General Secretariat is not (arts. 28 and 29 INTERPOL Constitution): it reports to the General Assembly, composed of member states (art. 7 INTERPOL Constitution), and the Executive Committee, composed of the President of INTERPOL, its three Vice-Presidents and its nine Delegates (art. 15 INTERPOL Constitution). Given this structure, the General Secretariat lacks the independence required to fairly and impartially assess requests, particularly politically sensitive cases involving individuals at risk of persecution or extradition for political offenses, which we at MENA Rights Group typically document.

Second, we are concerned that the proposed amendments introduce additional procedural steps that could prolong an already lengthy process. Specifically, draft article 37 (2) regarding provisional measures provides that “[t]he Requests Chamber shall not decide on provisional measures before the notification by the General Secretariat of its final compliance decision on the data concerned”; draft article 40 (1) provides that “The Requests Chamber shall decide on a request for access to data within four months from the date on which the request was declared admissible, or the date of notification by the General Secretariat of its final compliance decision, whichever is the later”; and draft article 40 (2) provides that ““[t]he Requests Chamber shall decide on a request for correction and/or deletion of data within nine months from the date on which the request was declared admissible, or the date of notification by the General Secretariat of its final compliance decision, whichever is the later.”

From our experience at MENA Rights Group, we already face excessive delays in obtaining a decision from the CCF regarding individuals targeted by politically motivated INTERPOL notices. Many of these individuals are at imminent risk of extradition to countries where they face high risks of being subjected to human rights abuses, including torture. As such, the removal of the notice issued against them is urgent and should ideally be carried out as promptly as possible. By requiring a preliminary compliance decision from the General Secretariat before the CCF can make a decision on a request or issue provisional measures, and without setting a clear and limited timeframe for this process, these amendments risk introducing further delays. We fear that this, in turn, could further undermine the chances that the request could prevent extraditions and protect individuals from being subjected to human rights violations in the requesting country. It is worth remembering that the vast majority of red notices are never made public and many of those subject to a red notice only find out about it when crossing a border putting them at risk of arrest and extradition proceedings, the duration of which can vary. It is therefore important that requests for access and deletion are handled efficiently and promptly so that the rights of persons subject to accelerated extradition procedures are protected, particularly with regard to the principle of non-refoulement.

There are already concerns about the ability of the CCF to effectively consider requests for the temporary suspension of red notices, particularly in urgent cases where people are detained at borders or airports. Our concerns regarding the proposed amendments to Article 33, in particular regarding the extension of the processing time for access and deletion requests, are even more valid when it comes to requests for interim measures under Article 37 of the CCF Statute, since the amendment to Article 37 also provides that “requests Chamber shall not decide on provisional measures before the notification by the General Secretariat of its final compliance decision on the data concerned.” We thus affirm that the amendments to Article 37 are incompatible with the urgent nature of the situations covered by this provision in particular where there is a clear and present danger of extradition based on information processed in the INTERPOL Information System.

In this regard, we would suggest that the CCF open the possibility for applicants to request for provisional measures. To our understanding, currently, it is the Requests Chamber of the CCF which can decide to put provisional measures in place (art. 37 CCF Statute). However, as mentioned above, the existing process is often too lengthy to meet the urgent needs of individuals facing imminent extradition on political grounds. It would therefore be very helpful to introduce a formal process for applicants to request provisional measures in urgent cases, as result of which notices could at least temporarily be removed or blocked in order to allow for the targeted person’s extradition to be delayed or for them to be released from detention pending extradition. This could be done by introducing a new paragraph to article 37, clearly granting applicants the right to request provisional measures, and outlining a clear set of conditions as well as the process to do so.

In this regard, we would suggest that the CCF open the possibility for applicants to request for provisional measures that could be modelled on the good practices already implemented by the UN Committee Against Torture, the UN Human Rights Committee or Rule 39 of the European Court of Human Rights. This type of mechanism allows for a response to requests for provisional measures within the days following the submission of the request.

3. Right to access, correct and delete data – misuse of CCF proceedings

MENA Rights Group wishes to provide comments regarding the draft amendments to the CCF Statute aiming to codify the CCF’s practices and policies that address cases of misuse of CCF proceedings, specifically draft article 28 (3), which states: “To perform its functions, the Requests Chamber shall have the power to decide on appropriate measures to address abusive, improper, or bad faith conduct by an applicant, a duly authorized representative or the source of the data, including: (a) dismiss the request, the application, or a written submission where it considers that there has been an abuse of its proceedings; (b) report substantiated suspicions of misconduct to the Organization and the relevant authorities, including law enforcement or licensing bodies, where such misconduct is sanctionable by law; (c) decide, on its own initiative or at the request of an individual or National Central Bureau, to take appropriate measures to record and bring the attention of the Organization reported acts of intimidation, coercion, or reprisal in connection to a request or to an application.”  

First of all, we regret that the proposed amendment does not provide that the complainant should be informed of the dismissal of the request nor does it provide that the Requests Chamber should provide a reasoned decision as provided in Article 27 of the CCF Statute. We would suggest an amendment be introduced to grant complainants the right to receive this information.  We would also suggest that the amendments include a mechanism for applicants to appeal if their request is labelled as abusive, improper, or made in bad faith. Having an appeals process would help prevent mistakes or unfair decisions and ensure that genuine applicants are not unfairly penalised.  

Finally, we would like to highlight that the amendments proposed in item (a) appear to be different in nature from those proposed in items (b) and (c). There is notably a lack of clarity around what the term “abuse” of CCF proceedings enshrined in item (a) entails, and if this would differ from objectively unfounded submissions. In this regard, a distinction should be made between unfounded requests and reprehensible acts, such as attempts to influence the CCF or acts of reprisals against complainants, as provided for in items (b) and (c). For greater legal clarity, we propose to differentiate items (a) from items (b) and (c) by introducing a fourth paragraph into Article 28 of the CCF Statute. Similarly, in item (b), with reference to the misconduct “sanctionable by law”, it would also be relevant to specify which legal system applies.