Interpol and the EU: don't play politics

According to Maasikas, the issue "is a matter of great concern to the Council", and the presidency of the Council of the EU plans to raise the matter with Interpol at a meeting on 20 November.

This debate went by largely unnoticed. But much of the substance and tenor of Maasikas' comments is profoundly worrying.

Interpol is the world's largest international police organisation, with 193 member countries. One of Interpol's primary tools is the publication and circulation of so-called 'Red Notices.'

Red Notices are issued at the request of either a member country's national central bureau (which serves as the contact point for all Interpol activities in the field) or certain international entities with powers of investigation and prosecution in criminal matters.

The purpose of a Red Notice is to seek the location of a wanted person and his or her detention, arrest, or restriction of movement for the purpose of extradition, surrender, or similar lawful action. Plainly, the potential for Interpol to be used by a member country for political means is not altogether fanciful.

Indeed, during its early days, Interpol was commandeered by a single country. In a speech in 2008, the then Interpol secretary general Ronald K. Noble recalled that, in 1938, Interpol lacked clear and formal rules to safeguard the integrity and independence of its work.

The consequences were enormous.

"[W]hen the Nazi regime invaded Austria in March 1938, they had to simply remove and arrest the head of the Austrian police, who under the statutes of the organisation [Interpol] at the time was automatically the president of the organisation. Heinrich Himmler, who controlled both the SS and the Gestapo, personally appointed an ex-convict and member of the Austrian Nazi Party as the head of the Austrian police and, consequently, as the president of Interpol", Noble said.

"At that point, the organisation ceased to exist as an independent and professional international police organisation".

Interpol learned its lesson.

Today's Interpol

Its constitution now provides that the organisation's focus is on preventing and combatting ordinary law crimes, as opposed to political, military, religious, and racial crimes. Interpol also adopted formal rules and regulations to govern its operations. 

Its governance structure is now designed to ensure that no single country can dominate or dictate its activities. It is these attributes that allow Interpol to police on a global level today.

Despite these positive developments, Interpol's channels have been, on occasion, used by a member country for political purposes.

One can, for example, point to the case of Bill Browder and his treatment at the hands of Russia.

Indeed, Maasikas' complaints of abuse appear to have been precipitated by calls from a Turkish prosecutor to issue a Red Notice in respect of Can Dundar (the former editor-in-chief of Turkish daily Cumhuriyet, who is currently living in exile in Germany), in addition to the recent arrests, reportedly pursuant to Red Notice requests by Turkey, of Dogan Akhanli (a Turkish-German writer) and Hamza Yalcın (a Swedish-Turkish journalist).

Maasikas indicated that talks with Interpol would focus on "possible improvements to the existing Interpol systems".

He said "it is important that the proper review should take place before Red Notices are issued … It is essential that the rights of our citizens are protected and that an effective redress mechanism exists."

These comments are curious. Very curious.

Red Notices are properly reviewed before publication. Interpol's general secretariat is responsible for checking the compliance of all Red Notice requests with Interpol's rules, and the general secretariat should only publish Red Notice requests deemed to be in compliance with Interpol's rules.

In addition, the general secretariat is responsible for ensuring that published notices continue to comply with the conditions for their publication and, to that end, the general secretariat must review published notices on a regular basis.

Likewise, "an effective redress mechanism exists."

Right of redress

Every individual has the right to access, correct and/or delete data processed in the Interpol information system.

This right is recognised and guaranteed by Interpol's basic texts and corresponds to an individual's inalienable human right to privacy as reflected in many international and regional treaties.

In fact, the Commission for the Control of Files (CCF) (an independent, impartial body, responsible for ensuring that the processing of personal data conforms to the applicable Interpol rules) received 1,047 complaints from individuals in 2016 alone.

In light of Maasikas' professed concerns, it is strange that the potential for abuse of the Red Notice procedure was not raised by EU member states at the 86th meeting of the Interpol general assembly two weeks ago.

If EU member states were unhappy with the process by which Red Notices were published or with the CCF complaints procedure, they can, as member countries of Interpol, voice their reservations before the Interpol general assembly.

Debate can then take place and, if necessary, the relevant rules can be reviewed. As a matter of fact, at its 2016 session, the Interpol general assembly debated and adopted a new statute of the CCF which created a dedicated Requests Chamber with quasi-judicial powers to handle complaints of individuals.

How did this new mechanism, effective as of March this year, operate in the cases flagged by Maasikas?

Clearly, if it cannot be demonstrated that the new mechanism failed to afford Akhanli and Yalcin a fair process, one is left to wonder why these cases caught Maasikas' attention and should be treated any differently to any other case before the CCF.

Strong-arming the law

Evidently, an individual who finds himself the subject of a Red Notice must not be permitted to use the influence of a certain region to strong-arm the general secretariat.

Such an individual should not be treated any differently to individuals with cases pending before the CCF.

In this regard, Maasikas' call for EU member states "to provide their ideas and to take this discussion further … to give ammunition to the presidency" at the meeting of 20 November smacks of a political power play.

More worryingly, it threatens to undermine the political neutrality of Interpol and the treatment of individuals who cannot enlist EU political support.

If Interpol requires reform, follow the process for reform. Don't play politics.

Rutsel Silvestre J. Martha is the founder of Lindeborg Counsellors, a law firm in London that specialises in Interpol matters, and Interpol's former general counsel. Stephen Bailey is a counsel at Lindeborg Counsellors who has advised individuals and companies on Interpol issues