Member States also use INTERPOL ‘wanted person’ alerts to seek the person’s arrest with a view to EAW proceedings. These are electronic alerts entered into INTERPOL’s databases at the request of the National Central Bureau (“NCB”) of the issuing country.[20] These alerts will be either “Red Notices” or “diffusions” (a more informal alert which may be limited to the European area). Some Red Notices are visible on INTERPOL’s website but, for obvious reasons, many are not, and are visible only to border and police authorities. For INTERPOL alerts, there is one central body to which requests may be directed for access to data and to seek the deletion of an alert: the Commission for the Control of INTERPOL’s Files (“CCF”). The organisation Fair Trials has produced a guide on how to make requests for access to INTERPOL alerts and to seek their removal. The full set of rules governing INTERPOL alerts can be found on INTERPOL’s website.[21]
A request may be made at any time to the CCF to find out whether an alert has been posted, including before an arrest has happened. However, as with SIS II, the CCF may not provide a conclusive answer. A request may be made at any time to the CCF to find out whether an alert has been posted, including before an arrest has happened. Under new rules applicable since March 2017,[22] the CCF is required, in principle, to determine such a request within at most five months from receipt of an admissible request, with a further period for notification of the decision. However, as with SIS II, the CCF may not provide a conclusive answer. The rules place an onus on the Issuing State’s authority to justify why disclosure cannot be made, but maintaining an element of surprise in respect of an ongoing investigation is likely to be seen by the CCF as constituting a valid reason for withholding the information, at least in the situation where there has yet to be any arrest on the basis of the alert. If you can demonstrate knowledge that there is an alert, you may enhance your chances of obtaining a substantive answer as to its content: consult the rules for further detail upon this.
If the EAW and underlying arrest warrant are revoked, linked INTERPOL alerts should be removed and you should request that the CCF do this if the issuing NCB fails to do so. A fundamental criterion for the issue of an INTERPOL alert is the existence of a valid arrest warrant or equivalent, so the revocation of such entails deletion of the alert.
However, if the EAW is refused by the Executing State, this will not automatically lead to the removal of the alert. The onus in on you.
It is possible for a person to request to the CCF for the deletion of their INTERPOL alert on the basis that it violates INTERPOL’s rules – an application best made after the conclusion of the EAW proceedings when you are in possession of the refusal decision with its grounds.
The CCF is required, in principle, to determine such a request within a total of at most ten months from receipt of an admissible request (with a further period of up to three months for implementation and notification of the decision) though the Issuing State may request an extension. Applications are limited to ten pages (excluding evidence) and translations may be needed into the CCF’s four working languages. Such applications will require careful argument based on INTERPOL’s rules and published decisions that the CCF has begun releasing in 2017. There are many potential arguments and a detailed examination is beyond the scope of this handbook. However, some arguments which may be relevant so far as EAW cases are concerned are:
- Minimum conditions for publication of alerts: these include the existence of an underlying arrest warrant (invoke this if the ISL has secured the withdrawal of the underlying warrant); minimum sentence condition (potentially relevant for EAW to serve minor sentences, as the minimum for an INTERPOL alert is six months, as opposed to four under the EAW FD); basic particulars of criminal conduct (if these are lacking in the EAW, they may also be lacking in the INTEPROL alert).
- Fundamental rights: Article 2 of its Constitution requires INTERPOL to comply with international human rights norms (interpreted in the context of police cooperation), so arguments successfully invokved against extradition may also affect the validity of an INTERPOL alert. Be alive to the fact that the CFR and ECHR do not apply directly to INTERPOL so arguments will need adapting (the simplest way being to refer to the corresponding right under the Universal Declaration of Human Rights, to which Article 2 refers). INTERPOL’s practice in respect of Article 2 remains unclear and is under review, so be sure to consult up to date materials online.
- Dual criminality: if the EAW has been refused because the circumstances alleged do not constitute an offence in the Executing State (e.g. in areas falling in grey areas between civil, administrative and criminal liability, strict liability offences or offences out ot step with a given international convention approximating criminal law definitions), an argument may be available for the deletion of the INTERPOL alert if the conduct would likely not constitute an offence in most other INTERPOL member countries either. Consult available materials online for this purpose.
- Excessive retention / absence of purpose: the rules require INTERPOL to limit retention of information to the period necessary to achieve a purpose, and require that there be a valid law enforcement purpose for information processing. There may be merit in making representations to the CCF about the proportionality of retaining information after an initial refusal of surrender, on the basis that surrender will not be achieved elsewhere and/or that retention of the information is disproportionate in light of the low possibility of surrender.
You will, in due course, receive a reasoned decision from the CCF in response to a deletion request. As of 2017, some of the decisions reached by the CCF are available for consultation and can be used for the purposes of framing requests. There is currently no appeal mechanism, though revision of a decision can be requested if new information comes to light (e.g. a further refusal, suspension of the warrant etc.).
When making an application to the CCF, your client’s expectations must be managed. Time frames (despite the in-principle time limits) may be lengthy. And, in general terms, the refusal of the EAW by a judge in your Member State alone will likely not lead to the deletion of the INTERPOL alert unless it establishes that surrender will have to be refused in any other state (a significant hurdle to overcome). The likelier outcome is that the CCF orders that the refusal to surrender the requested person by your Member State be reflected in the INTERPOL alert as an ‘addendum’: a textual note on the file which will bring further information to the attention of another country whose authorities encounter the wanted person. The addendum cannot as a matter of law dilute another Executing State’s obligation under Article 1(2) of the EAW FD to arrest upon an EAW, though it may (possibly) be taken into account in a non-EU country considering whether to arrest or not. In general terms, an addendum offers little protection.
Unless and until the INTERPOL alert is deleted outright, you should advise your client that they face a risk of arrest if they travel. If the CCF does order deletion of the alert, be aware that traces of the INTERPOL alert will remain on domestic police databases, giving rise to a residual risk of arrest. And the CCF’s decision will have no impact upon any SIS II alert; so even if the CCF orders deletion of the INTERPOL alert, arrest within the EU on the SIS II alert is still a risk unless that SIS II alert is itself deleted.
__________
[20] Each NCB can be located here http://www.interpol.int/Member-countries/World.
[21] http://www.interpol.int/About-INTERPOL/Legal-materials.