BSQ Red Notice Briefing: Appealing CCF Decisions: Article 19 Repealed: What Changed in INTERPOL’s Operating Rules?

Roger Sahota and Pragya Sinha Kumar
 
On 27 June 2024, INTERPOL issued its latest amendments to its Operating Roles of the Commission for the Control of INTERPOL’s Files (CCF), which was adopted in March 2017.

The removal of the earlier version of Article 19 of the CCF Operating Rules has gone largely undiscussed, and perhaps unnoticed by many. That prevision provided for what was known as the “re-examination request” procedure – INTERPOL’s answer to an appeal based on fresh evidence.
 
Article 19 of the Operating Rules had stated:
 
“An application for re-examination of a request by the Commission may be made by the requesting party only when it is based on the discovery of a fact which would probably have led to a different conclusion if that fact had been known at the time the request was processed. [emphasis added]”
 
Article 19 of the current Operating Rules now deals with conclusions of the CCF: what they are; their status; the occasions on which they are reached; and the requirement for conclusions to be reasoned.
 
The only path through in terms of an “appeal” against a decision of the CCF lies in Article 42 of the CCF Statute, which remains in force and provides for a “revision procedure”:
 
“Applications for the revision of decisions of the Requests Chamber may be made only when they are based on the discovery of facts which could have led the Requests Chamber to a different conclusion if that fact had been known at the time at which the request was being processed. [emphasis added]”
 
Interestingly, there has been no explanation on why the earlier Article 19 has been dropped from the Operating Rules for the CCF, nor any elaboration on if there is any difference between the “re-examination” and “revision” procedures.
 
However, the 2023 Activity Report of the CCF highlighted that while the ratio for access requests remained broadly unchanged in the previous three years, the applications for revision rose significantly from 9% of all requests in 2022, to 20% of all requests in 2023 (para. 14). A key concern in the report was the “protracted cycle of requests”, in that firstly an access request would be made, then a complaint, and finally a subsequent application for revision (para. 22). Reading between the lines, perhaps a duplication of procedures as between the Operating Rules of the CCF and the CCF statute was undesirable.
 
Given the complete lack of elaboration about whether anything has changed with regards to “appealing” a CCF decision, one can only turn to the language used in the provisions themselves. From this, the test for revision is one of whether a fact was discovered that “could” have led to a different conclusion, whereas for re-examination the test is whether the fact “would probably” have led to a different conclusion.
 
Overall, one might say the threshold for whether a new fact is capable of triggering revision is lower, being more akin to a test of “real prospect”. On the other hand, the test for re-examination echoes that of a “balance of probabilities” – whether it would have been more likely than not that a different conclusion would have been reached. The different thresholds may follow from the names of the procedures themselves: re-examination suggests a more intrusive form of review than revision.
 
Parsing aside, it is safe to assume that the case excerpts relating to the re-examination procedure remain relevant to the revision procedure under Article 42, especially given that little attention has been drawn to the change at the institutional level. The lessons to be drawn from those case excerpts are dealt with in another Red Notice Monitor blog: https://rednoticemonitor.com/interpols-review-proceedings-threading-a-needle-in-a-storm/.
 
Roger Sahota is a partner at Berkeley Square Solicitors and a specialist in international criminal law. Roger specialises in applications to the CCF for the deletion of Interpol Red Notices. Roger is one the editors of the rednoticemonitor.com.

Pragya Sinha Kumar is a legal assistant in the Interpol litigation department at BSQ.
 

Roger Sahota is currently engaged in representing a number of clients in applying to delete Interpol Red Notices. You can read more about our expertise in challenging Red Notices on our practice page.

If you require advice and assistance in challenging an Interpol Red Notice or Diffusion, please contact our London offices on 0044 203 858 0851.