The Committee on the Processing of Data, a standing committee of INTERPOL's General Assembly, has published its call for contributions concerning draft amendments to Articles 28, 33, 37 and 40 of the Statute of the Commission for the Control of INTERPOL's Files. The following members of the working group Lawyers Against Transnational Repression have responded to the call for contributions (below): Nicola Canestrini, Michelle Estlund, Vladimir Hrle, William Julié, Yuriy Nemets, Anna Oehmichen, Ali Yildiz, Bruce Zagaris.
We believe that, if adopted, the amendments will violate the INTERPOL Constitution, contradict other provisions of the Statute currently in force, infringe on the rights of individuals targeted by government requests disseminated via INTERPOL’s channels and negate much of the progress that the Organization has made over the past several years in fighting government abuse of its channels, including reforms to its redress mechanism enacted by the INTERPOL General Assembly.
Amendments to Articles 33, 37 and 40 of the Statute put forward by the CPD:
“The Requests Chamber shall examine an admissible request only after the General Secretariat has taken a final compliance decision on the data concerned.” Article 33(1) of the Statute
“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.” Article 37(2) of the Statute
“The Request 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.” Article 40(1) of the Statute
Relevant provisions of the INTERPOL Constitution and the Statute currently in force:
“The Commission for the Control of Files is an independent body which shall ensure that the processing of personal information by the Organization is in compliance with the regulations the Organization establishes in this matter.” Article 36 of the INTERPOL Constitution.
“To perform its functions, the Commission shall have . . . the exclusive power, as provided for in Article 28 of the present Statute, to examine and take decisions that are final and binding with regard to requests for access to, or correction and/or deletion of, data processed in the INTEPROL Information System.” Article 3(2)(c) of the Statute.
“The Commission shall be independent in the performance of its functions.” Article 4 of the Statute.
“In accordance with Article 3 of the present Statute, the Requests Chamber shall have exclusive power to decide on its competence to process requests submitted under the present Statute.” Article 28(1)(a) of the Statute.
“In accordance with Article 3 of the present Statute, the Requests Chamber shall have exclusive power to examine and decide on requests for access to, or correction and/or deletion of, data processed in the INTERPOL Information System.” Article 28(1)(b) of the Statute.
Our comments to the draft amendments to Articles 33(1), 37(2) and 40(1) of the Statute put forward by the CPD:
We believe that the draft amendments to Articles 33(1), 37(2) and 40(1) of the Statute, if adopted, may be interpreted in a way that would strip the Commission for the Control of INTERPOL’s Files (the Commission) of its independence guaranteed by Article 36 of the INTERPOL Constitution and deprive it of its exclusive power, secured in Article 3(2)(c) of the Statute, to examine complaints, requests for access and other requests from individuals and render decisions on them that are final and binding on INTERPOL. The draft amendments will make the Commission’s exclusive powers dependent on the will and actions or inaction of the General Secretariat. As a result, the Commission will be unable to perform its functions as prescribed by the INTERPOL Constitution, the Statute and the Organization’s other rules.
Additionally, the draft amendments put forward by the CPD include, but fail to define, the term “final compliance decision” that the General Secretariat would be empowered to make before the Commission would be allowed to exercise its powers. Not only does this create ambiguity in the already ambiguous INTERPOL legal framework, but it gives the General Secretariat the opportunity to prolong its compliance review as well. The absence in the draft amendments of any mandatory deadlines for the General Secretariat as well as the four-month deadline for the Commission’s consideration of requests for access prescribed by the Statute which, under the draft amendments, would run from the date when the General Secretariat makes its final compliance decision, will lead to longer wait times for individuals. In this regard, we respectfully remind the CPD that the Commission has been struggling for a long time to meet the deadlines already prescribed by the Statute.
We also feel obligated to draw the CPD’s attention to the total lack of transparency in the legal review and compliance checks conducted by the General Secretariat and the Notices and Diffusions Task Force (NDTF). This includes the total lack of participation of individuals targeted by government requests in legal reviews and compliance checks. One of the most egregious examples of such a lack of transparency is that if the NDTF finds a government request non-compliant, the individual targeted by the government request is not entitled to learn on what basis and at whose initiative the request has been deleted, INTERPOL’s or the government’s. This leaves individuals in complete uncertainty. A government request can be deleted due, for example, to a technical mistake and, therefore, can be disseminated again once the mistake is corrected. Alternatively, INTERPOL might, for example, conclude that a government request is based on a politically motivated prosecution, or that the government has committed flagrant violations of the individual’s rights or other violations of INTERPOL’s rules. In the latter example, individuals can feel more confident that the government request is unlikely to be disseminated via INTERPOL’s channels again. In this regard, the examination that the Commission is empowered to conduct gives individuals more transparency and certainty. We strongly believe that the draft amendments put forward by the CPD will deprive individuals of such transparency and certainty in addition to the already limited due process that they receive when their requests are considered by the Commission.
Amendments to Article 28 of the Statute put forward by the CPD:
(3) 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.
Our comments to the draft amendments to Article 28 of the Statute put forward by the CPD:
Draft Article 28(3) grants the Commission the power to dismiss a “request,” “application” or other “written submission where it considers that there has been abuse of its proceedings.” At the same time, the draft amendment does not appear to grant the Commission the power to order the deletion or blocking of a Red Notice, diffusion or other government request at issue when the government engages in the conduct mentioned above. We strongly believe that the Statute should include such provision.
We also believe that the definition of “abusive, improper and bad faith acts” by an NCB may currently be gleaned from a review of the Organization's governing texts and rules. There are no such rules for applicants or their advocates currently. Any amendments containing the possibility of sanctions, reports, or punitive measures against applicants or their advocates should also contain definitions of the proscribed conduct to be avoided.
