In Re (#3 March 2020)

Request to Remove Information Regarding a Person from Interpols Database

by Denys Nienov

Over the last six years the activities of Interpol in Ukraine have been making big news, which is, first and foremost, due to a number of politicians and officials fleeing its territory, and due to the efforts made by Ukrainian law-enforcement authorities to locate them using this organizations channels and means.

The main function of Interpol is to create and maintain various information bases through the assistance of which law-enforcement agencies of 194 member countries may cooperate.

As Interpol officials confirm, National Bureaus sometimes abuse their rights when submitting requests for publishing information in the organizations databases. This results in violation of the rights of certain persons, especially in case of publication of red notices stipulating for detention in any Interpol member country as of persons avoiding criminal liability, with the possibility of their subsequent extradition. It is for the protection of individual persons from such abuses that Interpols Rules on the Processing of Data establish the procedure for the removal of information about an individual person from the organizations database.

As far as the types of alerts (notices) are concerned, there are eight (8) of them in total, seven (7) of which are color-coded depending on their purpose:

red to seek the location and arrest of persons avoiding criminal liability with the possibility of his/her further extradition;

blue to collect additional information about a person or find a person who is of interest to a pre-trial investigation;

green to provide warning about a persons criminal activities, i.e. information about potential offenders;

yellow to help locate a missing person or identify a person who is unable to identify himself/herself;

black to seek information on unidentified bodies;

purple to seek or provide information on modus operandi, objects, devices and concealment methods used by criminals;

orange to warn of an event, a person, an object or a process representing a serious and imminent threat to public safety.

As long as the red notice is the most burdensome in terms of imposing restrictions on the rights of a person, which actually means putting a persons name on the international wanted list, the article further analyzes the grounds for removing this type of notice from Interpols information base.

The General Secretariat of Interpol (hereinafter the General Secretariat) is the body responsible for publishing information in Interpols databases and removing such information from such databases. In its turn, the Commission for the Control of Interpols Files is the body responsible for ensuring that the processing of personal data by the General Secretariat complies with the applicable rules of Interpol. The said Commission expressly reviews requests for the removal of data from Interpols Information System and makes decisions to be carried out by the General Secretariat.

The publication of the red notice implies going through the following stages:

serving a request by investigator/prosecutor to the National Bureau;

verification of the request for compliance with international acts conducted by the National Bureau;

further to successful completion of verification, the National Bureau submits the request to the General Secretariat;

follow-up verification of the request by the General Secretariat;

the publication of the red notice by the General Secretariat with the provision of information to member countries.

It is possible to find out about the publication of a red notice regarding a person by sending a request to the General Secretariat, since only a small part of such alerts is published on Interpols official web-site.

Interpols Rules on the Processing of Data stipulate no special requirements as to the form and content of the request for the removal of information from Interpols database (hereinafter the Request) except that the request must be drafted in one of Interpols working languages: English, Spanish, French or Arabic, and accompanied by the completed special application form posted on Interpols website, including copies of documents in chronological order which justify the request.

Starting their work on the request, the attorneys must hold a discussion with the principal, during which they verify the information to be included in the document: the persons biographical data (in chronological order), the nature of the criminal prosecution, the main procedural violations in the course of its execution, motives for persecution (political, religious, economic, etc.), documents confirming the said information and the contact persons who possess the documents/information. It is also important to support the arguments of the request by publication of reputable mass media sources, first and foremost, sources from the USA, GB and European Union.

Of great importance in the process of provision of reasoning of the request are references to violations of the Convention for the Protection of Human Rights and Fundamental Freedoms and of the precedents of the European Court of Human Rights during the investigation of criminal proceedings.

The main reasons for the removal of the publication of red notice include the following:

1. a request by the National Central Bureau or international entity didnt comply with Interpols rules, specifically with Articles 2(1) and 3 of its Constitution, as well as with the obligations imposed on the requesting entity under international law. According to Articles 3 of the Constitution it is strictly forbidden for the Organization to undertake any intervention or activities of a political, military, religious or racial character. For example, to confirm the political nature of persecution, which is one of the most common reasons for removing information from databases, an attorney may refer to the principals participation in elections, rallies, his holding a membership in a political party, principals holding a political post (minister, etc.) in the executive authorities, performance of activities that stirred public outcry or resulted in any conflict with the countrys circles of power or their representatives. In particular, membership in the Communist Party of Ukraine, which is currently prohibited by Ukrainian legislation, can suggest that persecution is of a political nature.

2. the request for extradition was not received by the competent authority within a period of one month (in accordance with the Convention on Legal Aid and Legal Relations in Civil, Family and Criminal Cases of 22 January 1993) or other terms provided for by the relevant international treaties, from the date of the person being placed under detention.

3. provision of insufficient information about the person.

4. provision of insufficient court-related information, including information about the criminal activities of the wanted person, including the time and place of alleged criminal actions.

5. no reference to the effective decision to detention/arrest of a person.

6. no reference to particular provisions of criminal legislation (indicating the wording provided by law) that were violated by the person.

7. procedural violations of the legislation of the requesting State (for example, violations of the procedure of serving the notice of suspicion, unreasonable nature of the suspicion, violation of the rights of a person during the process of making procedural decisions in criminal proceedings, other procedural violations established by court decisions).

The Commission for the Control of Interpols Files adopts a decision on a request for deletion of data within nine months from the date on which the request was declared admissible.

The Commission for the Control of Interpols Files may decide that the circumstances of a particular request warrant an extension of that time limit. Any such extension shall be reasonable, promptly communicated to the General Secretariat, the source of data and the applicant, and shall also be explained in the decision itself.

The written decision of the Commission for the Control of Interpols Files will be provided to the General Secretariat within one month from the date on which the decision was made. The General Secretariat shall implement a decision within one month from the date on which it was received, unless it seeks further clarifications required for implementation of a decision. In the latter case, the General Secretariat shall proceed with the implementation within one month from the date on which the clarifications were received.

Applications for the review of decisions made by the Commission for the Control of Interpols Files can be made only when they are based on the discovery of facts which could have led the Commission for the Control of Interpols Files to draw a different conclusion if that fact had been known at the time when the request was being processed.

Applications for review must be made within six months after discovery of such a fact.

Denys Nienov is an attorney at law at Ilyashev & Partners

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