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Interpol, Freedom of Movement and EU Data Protection Laws - Policing the World’s Police ǀ View

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It is widely believed, that Interpol are “the world’s police”. Indeed, Interpol themselves promote this idea. The reality however, is that there are real problems within Interpol’s independence and especially the ability of corrupt governments to target politicians and business people using the Interpol Red Notice system to request extradition. It does not appear that anyone is able to police the world’s police.

One of the main difficulties with bringing Interpol to account is that it is a supra-national organisation. It is based in Lyon, France, but it retains immunity under French law which means that there are no courts in which the actions of Interpol can be challenged. That problem may be about to change. In June, a German court referred a question to the Court of Justice of the European Union (CJEU) in Luxembourg asking it to examine the compatibility of Interpol’s practice and procedures with EU data protection law, the principle of ne bis in idem - or double jeopardy - and freedom of movement within the EU.

This unique case involves the former manager of a large German company. He was under criminal investigation in relation to bribery allegations through his company in Argentina. In 2009, the Public Prosecution Office of Munich agreed to accept the payment of a fine in relation to the investigation and closed the case.

This challenge from Germany may give lawyers and clients hope that Interpol can be brought to account in the face of the law and not hide behind international protection.
Ben Keith
Barrister specialising in Extradition, Immigration, Serious Fraud, Human Rights and Public law

Meanwhile the US also investigated him for the same conduct and issued an Interpol Red Notice. The German Federal Police Office informed Interpol that the German proceedings had been closed, with the consequence that further prosecution would violate the principle of double jeopardy. However, neither the German Federal Police Office nor Interpol were able to delete the red notice - a deletion could only be carried out by the United States of America. The claimant could therefore not leave Germany as he risked arrest.

The German Court have asked 6 questions of the CJEU, in particular, it questioned the compatibility of the Red Notice with EU law. It was concerned that the transfer of the personal data contained in the Red Notice into the national prosecution systems constituted processing of personal data, which might be illegal if not compatible with EU law and the principle of double jeopardy.

The German Court found that the processing of this data would be in violation of the law and so the Member States should be obliged to delete the Interpol red notice. The same laws only regulated the transfer of data to Interpol, but not the other way around. The Court had serious doubts whether this was in line with EU data protection law, and has asked the CJEU whether Member States would now need to stop their cooperation with Interpol in order to guarantee freedom of movement within the EU.

If CJEU finds breaches of EU data protection law by Interpol then that may cause a significant breakdown in the ability of Interpol to go about its business. That in some respects is good for those people such as my clients who have requests made by corrupt regimes for political motives. However, it is bad news for interstate corporation as it will mean it is more difficult for the UK and other states to trace the whereabouts of fugitives and affect extradition.

German Lawyer, Dr. Anna Oehmichen from the law firm Knierim & Kollegen in Mainz said of the case “The angles from which the Wiesbaden Court tackles the issue - data protection, freedom of movement and ne bis in idem – deals with the core values of European Union law. It is difficult to see how the CJEU could dismiss the present request - which creates high expectations as to the outcome”.

Interpol has been extremely controversial and even struggles to police and defend its own officials. Last year the Chinese President of Interpol, Meng Hongwei disappeared, he reappeared days later admitting to corruption. It seems likely that the Chinese authorities after “disappearing him” forced him to confess. We will never know the truth.

Interpol Red Notices can be removed if it can be shown that they are politically motivated. The difficulty is that there is often a narrow definition of ‘political’. It is far harder to explain that fabricated fraud charges and the subsequent Red Notice are for ulterior motives. There is no appeal and no judicial oversight, so trying to remove the notice is very difficult. For years lawyers have been trying to call Interpol to account in a court of law, this case may give hope to those wanting to challenge Red Notices.

The abuse of Interpol’s system is a real problem for the international community. It is not just political requests that cause problems but requests from regimes such as the UAE for offences contrary to Sharia law such as writing a cheque that then bounces. This challenge from Germany may give lawyers and clients hope that Interpol can be brought to account in the face of the law and not hide behind international protection.

  • Ben Keith is a barrister specialising in Extradition, Immigration, Serious Fraud, Human Rights and Public law at 5 St Andrews Hill, London

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