On the issue of Interpol's legal use of Article 3 of the Organization's Charter in the context of international search for persons and cooperation in combating crime

Koynov Maxim Yurevich Senior Lecturer at the Department of Public Order Protection of Tyumen Institute for Internal Affairs Officers Professional Training 625049, Russia, Tyumen region, Tyumen, Amurskaya str., 75 koynovmax@mail.ru Other publications by this author

Koinov Stanislav Vadimovich Special Operations Officer, ONTSB of Interpol for the Tyumen region 625049, Russia, Tyumen region, Tyumen, Amur str., 75 stas198888@mail.ru

Established in the first quarter of the XX century . The International Criminal Police Organization (Interpol) is the largest in the world and is second only to the United Nations in terms of the number of participating States.

Currently, the main channel of international cooperation in the search for persons for law enforcement agencies of the Russian Federation is cooperation through Interpol. The need to organize permanent international cooperation in the fight against crime was outlined at the founding meeting of the International Criminal Law Union in 1899.

In 1914, the First International Congress of Criminal Police was held in Monaco. Lawyers and police officers from 24 countries, including representatives of the Ministry of Internal Affairs of the Russian Empire, discussed the issues of coordinating the activities of police agencies of various countries in the fight against crime, the possibility of establishing a department for accounting international criminal information and unification of the procedure for the extradition of criminals. The First World War interrupted the implementation of the agreed measures. In 1923, the II International Congress of Criminal Police was held, which resulted in the establishment of a new organization on September 7 of the same year - the International Criminal Police Commission.

By the mid-1950s, the need to improve the legal framework and organization of its activities was recognized: in 1956, at the 25th session of the International Criminal Police Commission, the Statute (also known as the Constitution) of the International Criminal Police Organization - Interpol was adopted, the last changes to which were made in 1986.

The basis of the research was the method of comparative legal analysis of normative legal acts, as well as the use of historical and formal legal methods of research, analysis and synthesis, logic, etc.

The object of the study is the issue of the implementation of international (interstate) relations in the field of the implementation of the powers of Interpol to prosecute persons on the international wanted list.

The subject of the research in the article is the issue of the prohibition of the activities of Interpol on the political, military, religious or racial nature of interference (persecution) of persons on the international wanted list or involved in global criminal activity, on the basis of Article 3 of the Statute of the International Criminal Police Organization (Interpol).

Therefore, in order to establish clarity on the issue of determining the boundaries of possible prosecution of persons who are on the international wanted list or involved in global crime and hiding from justice behind the wall of international principles for the protection of human rights and freedoms (prohibition of persecution on religious, racial, political and other characteristics), a study of international law on this issue should be conducted. At the same time, the importance of the study is confirmed by the attention of the scientific community to this problem, so in the scientific literature this issue was addressed by Puzyveva V.Yu.^[1], Shaportov D.A., Steponyan A.N., Nemets Yu.L., as well as foreign authors, so Difleim M. addressed this issue in a number of his studies ^[2],[3]. An interesting approach to the study of the question of the implementation of Interpol's powers is carried out by the German Y.L. "3 Article of the Interpol Statute contains restrictions for the criminal prosecution of current and former heads of states and political parties, other political figures and officials" ^[4], such an approach in the author's opinion is controversial, since the very status of political immunity "immunity" from criminal prosecution of officials is not absolute and has exceptions to the generally established rules, as well as the established practice of deprivation of immunity.

This issue was considered in detail in their scientific work by E.E. Goloshchapova and A.V. Krasilnikov, so according to them "political immunity is a special rule of law that establishes the requirement to withdraw certain categories of persons with sufficient legal capacity to implement a general branch of legal personality from the scope of the relevant branch of law and the termination of a specific legal relationship that arose in connection with a legal fact with the participation of these persons" ^[5], they also investigated the process of deprivation of immunity, that is, "the presence of immunity does not eliminate the criminality of the act and does not exempt from liability in the presence of a crime, based on this, immunity is not a rehabilitating basis for exemption from criminal liability" ^[6], but the procedures of deprivation of political inviolability (immunity) is prescribed in the legislative acts of those countries where such a practice of political protection of rights and freedoms is implemented. The position of these scientists is also confirmed in international law, certain elements of the protection of rights and freedoms, as well as explanations of such actions, are implemented by issuing resolutions of the Interpol General Assembly.

Thus, in accordance with Article 3 of the Statute of the International Criminal Police Organization (Interpol), "The Organization is categorically prohibited from carrying out any interference or activity of a political, military, religious or racial nature" ^[7]. This norm is fixed in paragraph 5 of the Instructions on the organization of information support for cooperation through Interpol, approved by interdepartmental Order of the Ministry of Internal Affairs of the Russian Federation No. 786, Ministry of Justice of the Russian Federation No. 310, FSB of the Russian Federation No. 470, FSO of the Russian Federation No. 454, FSKN of the Russian Federation No. 333, FCS of the Russian Federation 971 dated 06.10.2006 (ed. from 22.09.2009)" ^[8], according to to which: "Information support for cooperation through Interpol channels is carried out in relation to criminally punishable acts, with the exception of crimes of a political, military, religious or racial nature," and in paragraph 117 of the specified Instruction: "The international search for persons accused of committing crimes of a political, military, religious or racial nature is not carried out. In case of non-compliance with this condition, the State initiator of the announcement of the international search for the accused convicted by the Interpol General Secretariat may unilaterally decide to refuse the international search and exclude information about the search for a person from the Interpol records." In addition, it is worth noting that the wording similar in meaning is reflected in the form of a direct ban on the extradition of certain categories of persons, enshrined in paragraph 2 of Part 1 of Article 464 of the Criminal Procedure Code of the Russian Federation: "The extradition of a person is not allowed if the person in respect of whom a request for extradition has been received from a foreign state has been granted asylum in the Russian Federation due to the possibility of persecution in this state on the basis of race, religion, citizenship, nationality, belonging to a certain social group or political beliefs"^[9].

According to the information of the Interpol General Secretariat, the main legal objectives of Article 3 of the Statute are:

- ensuring the implementation of the principles of independence and neutrality of Interpol as an international organization;

- implementation of international norms of law concerning extradition;

- legal protection of persons from repression.

Due to the significant scope of the concepts of crimes of a political, military, religious or racial nature, as well as their possible broad interpretation, this Article of the Charter has repeatedly been the subject of explanations and recommendations of the Interpol General Assembly in a number of resolutions.

Thus, according to the provisions of Resolution 53 of the Interpol General Assembly Session No. AGN/53/RES/7 "On the application of Article 3 of the Statute", adopted in 1984 in Luxembourg, it is not possible to define cases of a racial, religious, political, military nature that would cover all possible cases. In view of the above, the Resolution provides for the consideration by the General Secretariat on an individual basis of such appeals received from the national central bureaus of the Interpol member States, implying a study of the context of the appeal and feedback from the NCB on the application of the provisions of Article 3. If the Secretary General does not come to a consensus with the National Security Council on the presentation of certain facts, then he refuses to assist in the case.

If the NCB further clearly violates the provisions of Article 3 of the Charter, the General Secretariat informs the other NCBs of its position on the case. 

If, during the exchange of information between the NCBs, there is a difference of opinion regarding the application of the provisions of Article 3, the General Secretariat is notified.

Refusal of one or more countries to execute a request (for example, for extradition) The NCB of the participating State of the organization or the Interpol Secretary General does not mean that the request is invalid and automatically subject to Article 3 of the Charter. Nevertheless, in a number of countries, in case of refusal of extradition, a corresponding note is made in the search notification to inform other NCBs. In case of arrest of a person subject to extradition, the notice of search remains valid until the initiator makes a different decision.

Resolution 63 of the Interpol General Assembly Session No. AGN/63/RES/9 "On the application of Article 3 of the Charter in the Context of Serious Violations of International humanitarian law" ^[10] initiated the use of Interpol channels in combating a number of crimes related to humanitarian law – genocide, ecocide, the use of prohibited means and methods of warfare, in particular including crimes against civilians, prisoners of war, other war crimes and crimes against humanity, which, according to the Interpol classification, can be classified as ordinary criminal acts.

Subsequently, the organization's position on the issue of international cooperation in this aspect was enshrined in Resolutions No. AGN/66/RES/10 of 1997 "On cooperation in the search for persons accused of serious Violations of International humanitarian Law in Rwanda and the countries bordering it in the period from October 01, 1990 to December 31, 1994" ^[11], No. AG-2003-RES-08 of 2003 "Agreement on Cooperation between the International Criminal Police Organization – Interpol and the Special Court for Sierra Leone" ^[12], No. AG-2004-RES-16 of 2004 "Agreement on Cooperation with the International Criminal Court" ^[13].

Guided by the text of resolutions and other guiding and recommendatory documents, it is possible to give examples of the compositions, categories and signs of the elements of crimes for which the provisions of Article 3 of the Charter apply:

1. Crimes of a political nature, such as high treason, espionage, disclosure of state secrets, insults and slander against officials related to the performance of their official duties, crimes against freedom of the press, associations and assemblies, participation in a prohibited organization, separatism, anti–globalism, crimes of political figures, including former, related to their political activities, crimes against electoral rights, abuse of state symbols, use of symbols prohibited by the state, statements on prohibited topics, violent seizure of power;

2. Crimes of a racial nature: participation in an association/social group of persons on the basis of race, ethnicity, nationality, belonging to a particular race, nationality, ethnic group;

3. Crimes of a military nature: unauthorized abandonment of a unit or place of service, non-execution of an order, evasion from military and alternative service, desertion, crimes committed during military operations, forcing prisoners of war to perform military service;

4. Crimes of a religious nature: insulting the feelings of believers, obstructing the performance of religious rites and ceremonies, belonging to a prohibited religious group.

It should be noted that the scientific community has previously conducted a comparative analysis of the above-mentioned normative legal acts of international and domestic law, so in his works, D.A. Shaportov considers in detail the issue of defining crimes that should automatically be considered as political, racial, religious or military: "membership in a prohibited organization; dissemination of prohibited views; crimes in the field of mass media; insulting government officials; crimes against the internal and external security of the state; desertion from the army; high treason; espionage; professing a prohibited religion; recruiting supporters and propaganda of a certain religion; membership in a racial association" ^{[14, p.260]}. But at the same time, scientists have not investigated the issue of excluding crimes from the established rules of Article 3 of the Charter of the Interpol organization, and it is also worth noting that the resolutions of the Interpol General Assembly mainly carry a practical explanation of the use of specific normative legal acts of International law.

The novelty of the study also stems from the above, which makes it possible to determine that the global trend of limiting the prosecution of persons who committed crimes on grounds of political, religious, racial and military nature by the Interpol organization is significantly narrowed, allowing the organization to conduct investigations against persons evading responsibility in the categories specified in Article 3 of the Interpol Charter. The establishment of criteria for the possibility of conducting investigations against these persons will significantly improve the efficiency of the Interpol organization.

Therefore, according to the findings and the use of practical experience, it is possible to divide the compositions according to the criteria of applicability of Article 3 of the Interpol Statute into two categories:

1. "pure" compounds – to which the provisions of Article 3 are directly applicable;

2. "mixed" compositions – containing signs of the nature of the acts specified in Article 3, but also including signs of the composition of a common criminal offense. In this case, Interpol evaluates which criteria prevail.

The analysis takes into account the following components:

- qualification of a criminally punishable act: specific compositions provided for by criminal legislation and the facts stated;

- the status of the defendants, not only procedural in the material under consideration, but also civil law;

- source of information (legal status of the initiator of the search, verification);

- the position of other NCBs, international organizations;

- obligations imposed by international law;

- the need for the organization to comply with the principle of neutrality;

- the general context of the case.

At the same time, the principle of separation of compositions is applied.

In this regard, it is possible to determine the following exceptions from crimes subject to restrictions related to the application of Article 3 of the Statute of the Interpol organization:

1. crimes committed on the grounds of hatred and enmity on the basis of belonging to a religious, ethnic or other social group, justification of terrorist activities;

2. participation in the activities of terrorist, extremist organizations, including involvement, recruitment, incitement, financing, arming, training, terrorist activity itself – preparation, organization and commission of terrorist acts, hostage-taking, hijacking of water and aircraft;

3. abuse of state symbols contains signs of other ordinary crimes – destruction of property, vandalism, etc.

4. crimes committed by military personnel and/or against the interests of military service, if they contain signs of ordinary punishable acts;

5. search for missing servicemen, if their disappearance was not directly related to military service and/or participation in an armed conflict;

6. crimes committed by political figures, including former ones, if the nature of the criminal prosecution is not directly related to their political activities;

7. The person is subject to UN sanctions, appears according to the materials of international judicial bodies with which Interpol cooperates;

8. a person is involved in international crimes: crimes against humanity, international security;

9. crimes committed in the course of military operations, if they are seen as signs of criminally punishable acts and/or international crimes.

At the same time, it is necessary to distinguish between crimes of an international nature (transnational crimes) and international crimes – that is, crimes covered by the norms of international criminal law established by international criminal courts and tribunals.

The above lists are approximate and cannot fully reflect the position of the organization, since when processing requests by the management bodies of the organization, decisions on such cases are made on an individual basis.

Therefore, the decision on the application of Article 3 of the Interpol Statute may affect not only the General Secretariat of the organization, but also the NCB, as a representative of the interests of the state party of the organization, and the civil status of a person indicating his belonging to certain authorities, therefore, engaging in political activity, military service, participation in religious organizations is not It is an absolute obstacle to the use of Interpol channels in carrying out activities provided for by national and international legislation, if there are grounds excluding these compounds from the category of Article 3 of the Statute of the International Criminal Police Organization (Interpol).

It should be noted that the correct legal interpretation of the norms of international law and the fulfillment of international obligations is not only a universally recognized international principle, but also serves as a criterion for the legality of the activities of States in international affairs, acts as a condition for stability and effectiveness of the international legal order.

Summing up, it is necessary to draw attention to the fact that the activities of Interpol in the prosecution of persons on the international criminal wanted list and cooperation in the fight against international crime are a phenomenon that has not been sufficiently studied in scientific terms. Therefore, it requires close attention from both the world scientific community and internal research of this problem. It is natural that, due to its specifics, the activities of Interpol should be strictly regulated by international legal acts, and should not be included in domestic law. Nevertheless, we have made an attempt to characterize the investigative activities of Interpol, highlighting at the same time the international legal aspects of solving this problem.