The European Criminal Bar Association (‘ECBA’) and Lawyers Against Transnational Repression (‘LATR’) welcome the opportunity to contribute to this consultation. The questionposed touches on issues that are central to the legitimacy and effectiveness of the CCF as anindependent oversight body and as an adequate alternative remedy justifying INTERPOL'simmunity from national jurisdiction. This and related matters were addressed in detail in the ECBA’s report "Safeguarding INTERPOL's Systems: Recommendations for Reform"(February 2026) and we draw on that analysis here.
1. The confidentiality of applicant information is a precondition for the CCF'seffectiveness
1.1 The most important point to make at the outset is one that the framing of the questionrisks obscuring. The confidentiality provisions of Article 35(3) exist to protect multipleinterests, and the interests of applicants are among the most significant. Many people,in particular those facing transnational repression, who are or may be affected by INTERPOL alerts are unwilling to make an application to the CCF at all if they cannotbe confident that the information they provide will be protected. This is not a peripheral concern. It goes to the heart of the CCF's ability to perform its functions.
1.2 The risks that applicants face are concrete and serious. They include the risk ofretaliatory action by the requesting state against the applicant, her/his family, friends, colleagues, witnesses, the risk of diplomatic pressure being exerted on third countriesto deny asylum or revoke a visa, and the risk that disclosure of the fact of an applicationwill itself cause harm. In cases involving refugees and persons with subsidiary protection, these risks engage obligations of international law. Disclosure of such information to the requesting NCB could expose the applicant to renewed persecutionor interference with pending asylum proceedings. These are not hypothetical risks. They are the lived experience of many of the individuals whom ECBA/LATR members represent, and the confidentiality protections available to such applicants are not merely procedurally desirable but required by international law.
1.3 The consequences of inadequate confidentiality protection for applicants extend beyond the individual case. Article 35(3)(d) provides that information may be restricted to enable the Commission or the Organisation to properly discharge their duties. This ground is directly engaged by the chilling effect that a lack of confidentiality protection produces. If applicants in the most serious cases of abuse, including those involving refugees and persons at risk of persecution, are deterred from approaching the CCF, the mechanism by which INTERPOL ensures that non-compliant data is identified and removed is itself undermined. The CCF cannot perform its role in the most egregious cases if they are not brought before it. Confidentiality is therefore not merely an individual right; it is a structural precondition for the CCF to function as intended, and for INTERPOL to maintain the integrity of its own systems.
2. Confidentiality as an exception
2.1 Against that background, the starting point for any analysis of Article 38(3) must be theprinciple, already recognised in the CCF's own decisions, that restrictions on thecommunication of information are an exception to the general principle ofcommunication and must therefore be interpreted strictly. Restrictions must be justifiedand proportionate. The CCF must itself have unlimited access to the information, andthere must be counter-balancing measures where restriction is permitted. Theseprinciples apply with equal force to the communication of decisions under Article 38 asthey do to the communication of information during proceedings under Article 35.
2.2 The practical consequence is that the default position, other than those cases in whichthe refugee policy is engaged, must be disclosure. Where a decision is communicatedto the parties, the reasoning should be provided in full unless there is a specific,justified and proportionate basis for restriction. A general or routine invocation ofconfidentiality is not sufficient. In our experience, restrictions arise routinely in CCFdecisions, and it appears to be the default practice of certain countries to applyrestrictions even where the criminal case file is itself accessible and the investigationis no secret. The CCF must guard against any situation in which an NCB usesconfidentiality as a pretext to shield its submissions from scrutiny, and the samevigilance must apply to the communication of decisions.
3. Targeted redaction and the use of summaries
3.1 Where confidentiality is genuinely required in relation to specific elements of adecision's reasoning, the appropriate response is targeted redaction. Article 35(4) ofthe Statute already contemplates the provision of summaries as a means of preservingthe essence of an adversarial procedure while protecting legitimately confidentialmaterial. In the February 2026 report, the ECBA noted that summaries as envisagedby Article 35(4) are not working in practice, and made detailed recommendations fortheir more systematic use. The same approach should be applied to thecommunication of decisions under Article 38.
3.2 Where a decision contains reasoning that draws on restricted material, the CCF shouldconsider whether a summary of that reasoning can be provided that conveys thesubstance of the conclusion without disclosing the underlying confidential information.NCBs seeking to restrict elements of a decision's reasoning should be required toprovide convincing reasons why a summary cannot be provided, over and above thereasons for the restriction itself. Where they are unable to do so, the weight placed onthe restricted material in the decision should be very limited, and the reasoningcommunicated to the parties should reflect that limitation.
4. The asymmetry between applicants and NCBs
4.1 NCBs may assert that they have legitimate reasons for seeking confidentiality, and wedo not suggest that such reasons are never well-founded. However, there is afundamental asymmetry between the position of an NCB and that of an applicant thatmust be recognised in the application of the confidentiality framework. The applicantis the person whose rights are directly affected by the data processing. The CCFprocess exists to provide an effective remedy for that person. The NCB, by contrast,does not suffer the personal impact of a notice or diffusion and does not require thesame degree of protection. Furthermore, once an individual has challenged a notice,the interest in maintaining confidentiality of the underlying information is significantlyreduced: at that stage, the individual will already be aware of the notice and itsunderlying facts in general terms. The case for restricting the reasoning of a decisioncommunicated to an applicant who has themselves brought the challenge is thereforeparticularly weak.
5. The relationship between transparency and revision
5.1 The revision procedure is a weak remedy and should not be treated as the primarymechanism for addressing the consequences of inadequate disclosure. The largenumber of revision applications is itself a symptom of the failure to achieve genuineequality of arms during the initial proceedings and the lack of meaningful remedies.Where an applicant receives a decision that contains reasoning they have never hadthe opportunity to address, because the NCB's submissions were not disclosed to them during the proceedings, the revision procedure becomes a substitute for theadversarial exchange that should have taken place during the initial proceedings (andthat is only where the decision itself is unredacted). The proper response is to improvedisclosure during the course of proceedings, so that the parties are in a position toaddress the reasoning before the decision is made, rather than after it.
5.2 The question of NCB revision applications also raises procedural issues that havereceived insufficient attention. Where an NCB brings a revision application that resultsin the reinstatement of data, it is unclear whether the previously successful applicantis notified or given an opportunity to respond. We are not aware of any publishedguidance on this point, and we have not encountered this in practice. The CCF'spublished statistics do not disaggregate revision applications by party, making itimpossible to assess how frequently NCBs make revision applications. Greatertransparency on these questions is needed, and the CCF should consider publishingdisaggregated data and clear procedural guidance on the conduct of NCB revisionapplications, including the rights of the applicant in that process. As a minimum,applications for revision on the part of NCBs should be communicated to applicants asa matter of course.
6. The absence of recourse
6. 1 We also wish to draw attention to the apparent absence of any mechanism by whichan applicant can challenge the CCF's refusal to confirm whether data concerning themis being processed in INTERPOL's information system, or to challenge a refusal toprovide reasons for that position. Where the CCF declines to share information, itshould at a minimum be required to identify the source of the withheld data and explainthe grounds relied upon. The applicant, as the person directly concerned, must havea means of challenging such a refusal. We urge the CPD to have reference to Section10 of the ECBA Report which makes specific recommendations regarding appeal andreview. This is a matter of the rights of the defence and equality of arms. The absenceof such a mechanism is inconsistent with the CCF's role as an effective remedy andwith the principles of procedural fairness that underpin that role.
16 August 2026
Vânia Costa Ramos, Chairperson, and Rebecca Niblock, Vice-Chair, on behalf of the
European Criminal Bar Association (ECBA)
and
Yuriy Nemets on behalf of the
Lawyers Against Transnational Repression (LATR)
