Dismantling the
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INTERPOL
2018
Any decision by NCBs to refuse disclosure
should be subject to proper scrutiny by the
CCF, so that in practice, information is only
withheld from individuals where there are
genuine reasons to justify this. At present,
there are some questions about the extent
to which the new rules of disclosure are
promoting transparency. In Dolkun Isa’s
case, for example, it was evident that
the CCF felt bound by NCB Beijing’s
insistence that no data should be
disclosed, as a result of which the CCF
did not even confirm whether or not there
was a Red Notice against him. This was
notwithstanding the fact that the Chinese
Ministry of Foreign Affairs had made public
statements that Dolkun was subject to a
Red Notice. It seemed in this context there
was no justifiable reason for refusing to
disclose any information, even to confirm
whether or not there was any data
regarding Dolkun on INTERPOL’s systems.
97. Currently, there are very few ways of
finding out how effectively the CCF is
applying the new rules on disclosure,
because the CCF does not provide
detailed responses to individuals when it
has decided to restrict access to information.
However, it seems that the CCF is still in
the process of developing its procedures
regarding the disclosure of information,
and we have started to see, in some cases
where the CCF has refused disclosure, that
it identifies which of the four exceptions
under Article 35(3) justified the withholding
of information. We can also tell from some
written decisions of the CCF, (explained
further below) regarding requests for the
removal of Red Notices, that the CCF is
actively engaging in discussions with NCBs
to encourage them to disclose data to
individuals where it believes that withholding
of information cannot be justified.
98. The disclosure requirements, including the
permitted restrictions, apply both to the
NCB and to the individual applicant, and
the General Secretariat is also able to
request that disclosure is withheld.
There are some concerns that,far from
making CCF procedures transparent,
both the NCBs and individuals might be
inclined to overuse the provisions of Article
35(3) to restrict access to information,
making it more difficult to make decisions
on individual complaints by seeking
responses to arguments put forward by
both parties.
99. It is worth noting that the previous
Article 14(5) of the old Operating
Rules, which created a presumption of
disclosure in cases where the applicant
could demonstrate knowledge of the
existence of an INTERPOL alert, has not
been replicated in the new CCF Statute
or Operating Rules. It is assumed that this
is because new broader presumptions of
disclosure now apply, and this is unlikely to
create significant changes in practice given
our experience that this provision did not,
in fact, lead to disclosure in such cases.
“The Commission certainly understands
the importance of the presumption
of the confidentiality of the data
processed by INTERPOL. However,
a delicate balance needs to be found
between the requirements of national
sovereignty and the specific needs of
international police cooperation on
the one hand, and the fundamental
rights of an individual to due process
of law on the other.”97
Nina Vajic, Former Chair of the Commission
for the Control of INTERPOL’s Files
Nina Vajic, ‘Speech by the CCF Chair to the INTERPOL General Assembly’ (9 November 2016) Available at: https://www.interpol.int/en/News-and-media/
Speeches/2016/2016-General-Assembly-%E2%80%93-Speech-by-Ms-Nina-Vaji%C4%87,-Chairperson-of-the-CCF/
97
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