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Resolution 2315 (2019)
Interpol reform and extradition proceedings: building trust by fighting abuse
1. The Parliamentary Assembly stresses
the fundamental importance of international co-operation in the field
of criminal law. When criminals take advantage of reduced border
controls in Europe to escape justice in their own countries and
transfer criminal assets abroad, States must react by co-operating
with each other efficiently to uphold the rule of law. Given the
frequent violations in this regard, States must remain vigilant
and prepared to deal with misuse of the co-operation mechanisms
by authoritarian States for political and corrupt purposes.
2. The Council of Europe’s main legal instrument in this field
is the 1957 European Convention on Extradition (ETS No. 24), updated
by additional protocols in 1975, 1978, 2010 and 2012 (ETS Nos. 86
and 98, and CETS Nos. 209 and 212). Its practical functioning is
aided by the Committee of Experts on the Operation of European Conventions
on Co-operation in Criminal Matters (PC-OC). The main objective
of the parties to the convention is to facilitate extradition as
much as possible to prevent impunity of criminals who abscond across
boundaries.
3. A reasonable balance must be struck between the legitimate
interest in preventing impunity for serious crimes, which themselves
violate human rights, and the rights of the person targeted by an
extradition request, who must not be exposed to a serious risk of
flagrant denial of justice, cruel and inhuman punishment and/or discriminatory
treatment on political, racial, ethnic or religious grounds.
4. International co-operation in the field of criminal law requires
a high degree of mutual trust, based on common standards and practices.
Trust is built over time and with difficulty, by competent colleagues
from different countries getting to know each other, developing
mutual respect, based on professionalism and integrity, finally
building successes together. But trust can be destroyed quickly
and easily, first and foremost when international co-operation mechanisms
are misused for political or corrupt purposes.
5. It must also be noted that apart from extradition requests,
interstate mutual legal co-operation mechanisms – such as the Schengen
information system – are also subject to misuse and may result in violations
of privacy, property, professional rights and deprivation of liberty,
particularly under the 1990 Convention on Laundering, Search, Seizure
and Confiscation of the Proceeds from Crime (ETS No. 141) as well
as the 2000 United Nations Convention against Transnational Organized
Crime.
6. The Assembly further notes that extradition proceedings are
often triggered by an Interpol Red Notice or a “wanted person diffusion”.
In its Resolution 2161
(2017) “Abusive use of the Interpol system: the need
for more stringent legal safeguards”, the Assembly recognised Interpol’s
vital role in the fight against impunity. At the same time, the
Assembly found that Interpol’s procedures had been frequently abused
for political or corrupt reasons by certain countries. It therefore
made concrete proposals for reforms aimed at strengthening the Interpol
system.
7. The Assembly is now satisfied that many of its proposals have
already been implemented, or are in the process of being implemented
by Interpol, in particular:
7.1. new
Red Notices and wanted person diffusions are vetted by a dedicated,
multi-disciplinary task force at Interpol’s General Secretariat,
prior to their becoming visible to national central bureaus (NCBs);
7.2. work has begun on reviewing older Red Notices authorised
before the compliance review was implemented in 2016 and still visible
on Interpol’s databases;
7.3. a data protection officer was appointed within Interpol,
reporting directly to the Secretary General;
7.4. the Commission for the Control of Interpol’s Files (CCF),
to which persons targeted by notices and diffusions can appeal,
has been strengthened by its new statute, which entered into force
in March 2017. This new statute has had the following effects:
7.4.1. the CCF’s reactivity has improved due to the strengthening
of its resources;
7.4.2. the CCF’s decisions have become binding on Interpol; a
finding of non-compliance of a Red Notice with Interpol’s constitution
or rules will lead to the deletion of the notice by the General Secretariat;
7.4.3. the CCF’s decisions are now reasoned and extracts permitting
the better understanding of the interpretation given to relevant
rules are published;
7.4.4. the CCF’s independence has been strengthened by a “firewall”
set up between the General Secretariat of Interpol and the Secretariat
of the CCF;
7.4.5. the CCF’s members must withdraw from cases when they are
nationals of the country which is the source of the data challenged
by an applicant;
7.5. a “Policy on refugees” was adopted and published by Interpol
in September 2017, intended to prevent the publication of Red Notices
and wanted person diffusions against persons who have refugee status
under the Geneva conventions;
7.6. a “Repository of practice” on Article 3 of its constitution
(on political, military, religious and racial neutrality) has been
published on Interpol’s website.
8. However, the Assembly also notes with regret that a number
of recommendations (including the creation of a compensation fund
for victims of abuses of Interpol mechanisms) have not yet been
implemented, in particular those intended to improve the transparency
of Interpol’s work and to strengthen accountability for States whose
NCBs abuse Interpol’s instruments.
9. Regarding the improvement of extradition and other proceedings
in the field of international criminal law co-operation in general,
the Assembly calls on the member States of the Council of Europe
and the member States of its Group of States against Corruption
(GRECO, enlarged partial agreement) to participate actively in the
Council of Europe’s co-operation activities in the criminal law
field, in particular the PC-OC, with the aim of implementing good
practices and avoiding problems identified by the PC-OC, in particular:
9.1. as requested parties, by dealing
with extradition requests in a timely, co-operative and results-oriented
manner, and by swiftly requesting additional information or clarification
where needed;
9.2. as requesting parties, by providing sufficiently detailed
information on the person whose extradition is requested, the suspected
crime and the elements of proof linking the targeted person to the
alleged crime; and by swiftly providing informative, well-documented
answers to any requests for further information or clarification
by the requested party;
9.3. by keeping up-to date with relevant case law of the European
Court of Human Rights, in particular by using the tools made available
by the PC-OC;
9.4. by refusing any extraditions and other interstate legal
assistance, particularly in the field of criminal law co-operation
by which the targeted person would be exposed to a serious risk
of flagrant denial of justice, cruel and inhuman punishment or discriminatory
treatment on political, racial, ethnic or religious grounds, as
well as violation of privacy, property, professional rights and
deprivation of liberty by searches, seizures, transmission of private,
sensitive or confidential information to the requesting State, and
arrest;
9.5. by relying on diplomatic assurances by the requesting
State only when they are specific, given by an authority having
the power to enforce them, credible in view of the length and strength
of bilateral relations between the requested and the requesting
States and of the requesting State’s track record of abiding by
similar assurances; when the requesting State has an effective system
of protection against torture and when compliance with the assurances
can be objectively verified through diplomatic or other monitoring
channels;
9.6. by remaining particularly vigilant to any form of Red
Notice, wanted person diffusion, extradition and other forms of
interstate legal assistance, particularly in the field of criminal
law co-operation when the requesting State notoriously lacks independent
prosecution and courts and has a track record of frequently misusing
Interpol mechanisms and violating diplomatic assurances;
9.7. by refraining from making extradition requests, including
European Arrest Warrants (EAWs), when extradition would be disproportionate
in relation to the gravity of the alleged crime and the penalty incurred;
this would normally be the case when pre-trial detention would be
considered inappropriate in similar circumstances in either one
of the States involved in the extradition proceedings.
10. Regarding the reform process at Interpol, the Assembly calls
on:
10.1. Interpol to:
10.1.1. further
improve transparency by disclosing data that would help to assess
how effective its review mechanisms are, including yearly statistics
on Red Notice requests received and refused, appeals to the CCF
introduced and decided in favour or against the applicants, with
a breakdown by country; and by publishing a “repository of practice”
on the interpretation of Article 2 of Interpol’s constitution;
10.1.2. further improve preventive and subsequent scrutiny of
Red Notices and wanted person diffusions, by examining with particular
care any repetitive requests, those that have not given rise to
extraditions or extradition requests within a reasonable period
of time and those submitted by NCBs which have previously submitted
a high number of abusive requests; and by charging the countries
responsible for the extra cost involved;
10.1.3. ensure more effective control over the information which
flows through its communication system by requiring NCBs to delete
data from national databases following a CCF or General Secretariat
decision to delete a notice or wanted person diffusion and to provide confirmation
of the deletion within a prescribed time limit;
10.1.4. further strengthen the appeals procedure before the CCF
by making it speedier, more interactive and more transparent;
10.1.5. consider setting up an independent appeals body against
the decisions of the CCF, such as an ombudsperson, who could also
make recommendations for any further improvements of Interpol’s
working methods;
10.1.6. set up a compensation fund for victims of unjustified
Red Notices and wanted person diffusions financed by member States
in proportion to the number of such notices and diffusions emanating
from their NCBs;
10.2. all member States of the Council of Europe to set an example
of good co-operation by:
10.2.1. making available to Interpol
the human and financial resources necessary to improve the quality
and timeliness of both preventive compliance checks and the subsequent
review by the CCF; in particular, to provide increased, ring-fenced,
dedicated funding to the Notices and Diffusions Task Force and the
CCF;
10.2.2. ensuring that the Red Notice requests and wanted person
diffusions they submit to Interpol fulfil high standards of clarity
in terms of the identification of the targeted person, the description
of the facts and their legal qualification, and the elements of
proof linking the targeted person to the alleged crime;
10.2.3. swiftly informing Interpol of any relevant facts concerning
a targeted person, such as the granting of refugee status, provided
the person concerned agrees;
10.2.4. following up Red Notices by extradition requests in due
course and withdrawing Red Notices when extradition is not possible
within a reasonable time;
10.2.5. respecting the decisions by the CCF by ensuring that all
copies of Red Notices or wanted person diffusions found unjustified
by the CCF are also deleted in their national databases;
10.2.6. facilitating, in co-operation with the European Union,
the development of a collection of best practices between member
States on how to act on Red Notices and diffusions, including practical
steps to conduct risk assessments and to apply consistent human
rights standards;
10.2.7. making use of their influence within Interpol to support
the implementation of further improvements so that Interpol fully
respects human rights and the rule of law whilst remaining an effective
tool for international police co-operation;
10.2.8. taking into account conclusions and recommendations provided
by civil society watchdogs dealing with the matter of misuse of
Interpol, extraditions and other forms of interstate legal assistance;
10.2.9. duly probing all instances of misuse of Interpol, extraditions
and other forms of interstate legal assistance by the requesting
States for political or corrupt purposes.