at INTERPOL the deletion of the Red Notice becomes easier

INTERPOL has confirmed the deletion of a "Red Notice" to us quite a few times, most recently on February 8, 2021 (CCF/115/R402.20) because of an INTERPOL notice for wanted persons from the United Arab Emirates (UAE). That it was an INTERPOL wanted notice from the United Arab Emirates (UAE) is no coincidence. It is a well-known fact that the UAE sometimes misuses the INTERPOL search to pursue debtors who - in an easily transparent manner - are wrongly accused of check fraud in order to find their way into the INTERPOL search.

INTERPOL and legal protection against search measures

INTERPOL has significantly improved the self-imposed legal protection against search measures since 2017 and subjected it to a regulated process with deadlines. Compared to the previous legal situation, we now see significantly more remedial decisions by the Commission for the Control of INTERPOL's Files (CCF) leading to the requested deletion or correction of the data.

Searches through INTERPOL are often abused by certain countries for political or corrupt reasons. INTERPOL has often been criticized for inadequate abuse control and has responded with reforms since 2017, namely, among others:

  • - since the reform, new "Red Notices" and wanted alerts are reviewed by a multidisciplinary working group in INTERPOL's General Secretariat before they become visible to National Central Bureaus (NCBs);
  • - INTERPOL has started reviewing older "Red Notices";
  • - a Data Protection Officer has been appointed within INTERPOL, reporting to the Secretary General;
  • - the Commission for the Control of INTERPOL Files (CCF) has been significantly strengthened, effective March 2017, namely with significantly more resources and by the fact that CCF decisions are now binding on INTERPOL, whereas previously they were only recommendations. Now, a determination that a Red Notice is inconsistent with INTERPOL's statutes or rules mandatorily results in the cancellation of the Red Notice by the General Secretariat;
  • - CCF decisions are now substantiated in writing and a selection of CCF decisions are also published, allowing the applicant to better understand the relevant rules;
  • - INTERPOL published a "Policy on refugees" in September 2017 to prevent the publication of "Red Notices" against persons who have refugee status under the Geneva Convention.

Other reform proposals, such as establishing a compensation fund for victims of abuse of INTERPOL mechanisms and strengthening accountability for states whose NCBs abuse INTERPOL, and aimed at improving preventive and retrospective review of red notices and wanted alerts, have not yet been implemented.

The improvements in legal protections introduced in 2017 have then already led to a significant increase in complaints to the Commission for the Control of INTERPOL's Files (CCF) in the following year, 2018. And slightly more than half of the complaints were successful: of the 536 complaints processed in 2018, 346 requests from applicants whose data were stored in INTERPOL's database were declared admissible by the Commission (CCF) at the first stage, and of these, 276 records were actually deleted as well (Source: Annual Report often the CCF 2018).

Among the 346 admissible requests, in 2018 there were only 70 cases in which the Commission (CCF) considered the complaint to be unfounded in the result and found that the contested records were compliant with the rules and met the necessary legal requirements for their storage in INTERPOL's database (Source: Annual Report of the CCF 2018).

But in 167 of the 346 admissible complaints, the Commission (CCF) found that the contested data did not meet the legal requirements and should therefore be deleted from INTERPOL files. In another 40 complaints, the INTERPOL National Central Bureaus (NCBs) from which the challenged data originated did not provide adequate responses to the issues raised by the Commission ( CCF), and therefore the data were deleted as a result. In 69 other cases, either the General Secretariat or the INTERPOL National Central Bureau (NCB), from which the challenged data originated, deleted the data from the INTERPOL files before the Commission (CCF) had to make a decision (Source: Annual Report of the CCF 2018).

The Commission for the Control of INTERPOL's Files (CCF) was established at INTERPOL for the legal controil of the data. In the UAE case just decided, the CCF decided, based on our request, that our client's data should be deleted from the INTERPOL information system (CCF/115/R402.20). The INTERPOL General Secretariat implemented the CCF's decision on February 02, 2021.

German extradition lawyer on implementation at INTERPOL

The implementation of an decision by the Commission for the Control of INTERPOL's Files (CCF)) includes, in addition to the deletion in the central database, the request to all National Central Bureaus (NCB) in all Member States to update their national databases accordingly. In each of the 194 member states, an INTERPOL National Central Bureau (NCB) is the point of contact for the General Secretariat and other NCBs. National Central Bureaus (NCBs) connect national police to the global INTERPOL network. An NCB is headed by national police officers and in most countries is located in the government ministry responsible for policing, although in Germany it is located in the Federal Criminal Police Office (Bundeskriminalamt BKA).

Search for persons and legal protection

We deal with extradition procedures, search for persons and legal protection options on a daily basis. Extradition proceedings regularly begin with arrests based on searches via the two international search channels, namely SIS II (Schengen Information System II) and INTERPOL.

Search via SIS II

The SIS II search channel is mostly - but not necessarily - used throughout the entire Schengen area for a notice on persons wanted by European Arrest Warrant. The national SIRENE offices activate the search on a form based on Article 26 (2) of the SIS II Decision, with details on the procedure for issuing notices being set out in the SIS II and the so-called "SIRENE Manual". Personal data of the person being searched can be entered, including photographs and fingerprints. According to Article 27 (1) of the SIS II framework, it is obligatory to add an electronic version of the European arrest warrant, although it is often the case that only a version in the language of the issuing state is available.

INTERPOL search

INTERPOL, based in Lyon / France, supports international police and judicial cooperation in the search for wanted persons only by collecting the notices of the 194 member states there in a database, which in turn is available to all members. In the relevant literature, some even speak of a "demystification" of the INTERPOL organization when they point out that the organization's functions in global tracing are actually reduced to the provision and administration of the database.

In fact, INTERPOL is not a state institution but an association under French law with its own constitution and self-imposed "INTERPOL's Rules on the Processing of Data" ("RPD") and statutes for a "Commission for the Control of INTERPOL's Files" (CCF) with the General Assembly as the central body.

The best-known category of INTERPOL notices is the "Red Notice," a request for the arrest of a person when either a minimum sentence of six months is to be served or a conviction in the requesting state carries a maximum sentence of at least two years. The purpose of a "blue notice" is initially only to establish the whereabouts of a specific person.

In the case of requests received in Germany via INTERPOL, the the Federal Criminal Police Office (Bundeskriminalamt BKA) only makes a summary check as to whether the order for extradition custody or transfer custody appears permissible before the Red Notice is granted here. Such a merely summary examination appears questionable and is in fact not even sufficient to reliably exclude obviously unfounded arrest requests. The incoming arrest requests originate from a large number of very differently equipped member states, some of which have low minimum standards of procedural law, and it is also known that no effective checks are carried out beforehand by INTERPOL before inclusion in the database. Although the General Secretariat at INTERPOL has to check every Red Notice for compatibility with its own constitution and the self-imposed "INTERPOL's Rules on the Processing of Data" ("RPD") on the basis of Art. 86 RPD, the control is not very thorough.

Thus, anyone who has evidence that an INTERPOL member such as the United Arab Emirates may be looking for him with an arrest warrant should actively engage with INTERPOL before such an arrest request against him is suddenly executed in Germany on some fateful day. Then, possibly for the first time after a provisional arrest and weeks of detention, the foreign request will be reviewed by the competent German Higher Regional Court when deciding on the provisional extradition warrant pursuant to Section 16 IRG.

In prominent cases, the Foreign Office is involved by the BKA in approving the Red Notice pursuant to Section 33 (3) BKAG, which are of "particular importance in political, factual or legal terms." This may have a certain filtering effect, but it is denied to the average case.

After an arrest on the basis of a Red Notice, the General Public Prosecutor's office in Germany comes on the scene and receives the documents from the Federal Criminal Police Office BKA. The General Public Prosecutor's Office immediately arranges for the persecuted person to be brought before the next local court (cf. Section 21 (1) IRG) and, almost without exception, applies there for the issuance of a detention order and then, as a rule, for the Higher Regional Court to order provisional custody pending extradition pursuant to Section 16 IRG.

German extradition lawyer on the claim for information of the persecuted person against the BKA

The persecuted person can assert a - in practice often limited - claim for information against the BKA according to § 84 BKAG in conjunction with § 57 BDSG. However, the right to information is restricted under Section 57 (4) in conjunction with Section 56 (2), 45 BDSG, because the provision of information may be postponed, restricted or omitted if this would jeopardize the prevention, investigation, detection or prosecution or punishment of criminal offences. The BKA may refuse to provide the information, in which case no information may also have a significant information content for the applicant if he or she is able to interpret this. The person being prosecuted can also base a subsidiary claim to information against the BKA on Section 1 (3) of the Freedom of Information Act (IFG).

 

 

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