eS Request concerning Mohamed BOUAMATOU (Ref, CCF/R 720A.17) DECISION OF THE COMMISSION (106 session, 16 - 19 October 2018) ‘The Commission for the Control of INTERPOL's Files (the Commission), sitting as the Requests Chamber, composed of Vitalie PIRLOG, Chairperson Leandro DESPOUY, Petr GORODOV, Isaias TRINDADE, ‘Members, Having deliberated in camera during its 106" session, on 19 October 2018, delivered the following Decision. 4. PROCEDURE ‘On 30 August 2017, Mr. Mohamed BOUAMATOU (the Applicant) addressed a preemptive request, as well as an access request and a complaint to the Commission. As no data conceming the Applicant were registered in INTERPOL's files at the time, the Commission initially coordinated with INTERPOL General Secretariat for purposes of addressing the preemptive nature of the complaint. On 1 September 2017, the National Central Bureau of INTERPOL (NCB) of Mauritania sent a Red Notice request concerning the Applicant, for his arrest in view of extradition. The data concerning the ‘Applicant was not unblocked by the INTERPOL General Secretariat upon receipt. On 11 September 2017, the INTERPOL General Secretariat informed the Commission of the NCB’s request to register data’ in INTERPOL's files concerning the Applicant. Following the submission of all the required documents in accordance with Rule 30 of the Operating Rules of the Commission, the request was found admissible, and the Commission informed the Applicant thereof on 25 October 2017. During its 104° session (April 2018), the Commission concluded that the data challenged were compliant with INTERPOL’s rules applicable to the processing of personal data, The NCB of Mauritania and the Applicant were informed of this outcome. On 6 July 2018, the Applicant lodged an application for revision addressed to the Commission. The Applicant alleges that the Concluding Observations of the Working Group on Arbitrary Detention in the case of Mr. Mohamed Ghadda, as well as the Mauritanian authorities’ reactions to the aforementioned conclusions and recently obtained documents revealing the close nature of the relationship between the Applicant and Mr. Ghadda, constitute newly discovered facts which could have led the Commission toa different conclusion if they had been known at the time of the analysis of the case. The conditions for revision were deemed to have been met and the Commission informed the Applicant thereof on 4 September 2018. On 4 September and on 14 September 2018, respectively, the Applicant and the NCB source of the data challenged were informed of the fact that the Commission would study the case during its 106* session and invited to share any other information or document with the Commission. FACTS ‘The Applicant is a national of Mauritania. He was the Director and founder of the group BOUAMATOU SA (BSA). He created in 1995, the Générale de Banque de Mauritanie (GBM). He is the subject of a request for a Red Notice by NCB of Mauritania for charges of corruption and complicity to corruption, on the basis of an arrest warrant issued on 31 August 2017 by the Public Prosecutor of the West Nouakchott Court (Mauritania). ‘The summary of the facts, as recorded in the request for a Red Notice, is the following: “L’ACCUSE DENOMME MOHAMED HIMINE BOUAMATOU EST POURSUIVI DANS LE DOSSIER “0004/2017 RELATIF AU FAITS DE CORRUPTION ET DE COMPLICITE DE CORRUPTION DEVANT LE POLE DINSTRUCTION CHARGEE DE LA LUTTE CONTRE LA GABEGIE. LES FAITS SE RESUMENT COMME SUIT: LE SIEUR MOHAMED HIMINE (CCF/ 10VBOUAMAOUT & DEBAGH, Page 1/10BOUAMATOU,HOMME D'AFFAIRE QUI SEJOURNE ATUELLEMENT AU MAROC, EST PRESUME AVOIR ETE COUPABLE DIORGANISATION DE CELLULES QUIL DIRIGE ET FINANCE PAR LA COMPLICITE DU SIEUR MOHAMED DABAGH CONNU POUR ETRE SON DIRECTEUR DES AFFAIRES ACTUELLEMENT EN FUITE ET DU NOMME MOHAMED AHMED GADDA JUGE ETRE L'UN DE PLUS PROCHES DONT LE BUT EST DOFFRIR DES CADEAUX SOUS FORMES D'AVANTAGES FINANCIERS ALLECHANTS AU BENEFICE DES ELUS ENVUE QUILS S‘ABSTIENNENT D’ACCOMPLIR CONVENABLEMENT LEURS FONCTIONS LEGISLATIVES OU AUSSI AU BENEFICE DES JOURNALISTES A FIN QUE CES DERNIERS PUISSENT ENTRETENIR UNE CAMPAGNE DE PROPAGANDE QUI VISE A TERNIR LIMAGE DU PAYS,DE FACON A PORTER ATTEINTES AU CLIMAT DES INVESTISSEMENTS ET L'ORDRE PUBLIC.” 8. The General Secretariat blocked the access by INTERPOL Member countries to the data concerning the Applicant upon receipt of the request for Red Notice. The data remained blocked pending the study of the application for revision. Il, THE APPLICANT’S REQUEST 9. In both his original complaint and his application for revision the Applicant requested the deletion of the data concerning him, contending, in essence that the case is of a predominantly political character. 10. In his most recent complaint, the Applicant requests the revision of the case. IV. APPLICABLE LEGAL FRAMEWORK 11. General provisions: ‘© Article 2(1) of INTERPOL’s Constitution states that the Organisation should “ensure and promote the widest possible mutual assistance between all criminal police authorities within the limits of the laws existing in the different countries and in the spirit of the Universal Declaration of Human Rights”, 12. Application for revision + Article 42 of the CCF Statute provides that: “(1) 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. (2) Applications for revision must be made within six months after the discovery of the fact.” 13. Matters of political character: Article 3 of INTERPOL’s Constitution states that “[i]t is strictly forbidden for the Organization to undertake any intervention or activities of a political (...) character. © Article 34 of the RPD states the following: - 34(2): “(..) prior to any recording of data in a police database, the National Central Bureau, national entity or international entity shall ensure that the data are in compliance with Article 3 of the Organization’s Constitution”. + 34(3): “To determine whether data comply with Article 3 of the Constitution, all relevant elements shall be examined, such as: (a) nature of the offence, namely the charges and underlying facts; (b) status of the persons concerned; (c) identity of the source of the data; (@) the position expressed by another National Central Bureau or another international entity; () obligations under international law; (f) implications for the neutrality of the Organization; (g) the general context of the case.” CCF 106/BOUAMATOU & DEBAGH, Page 2/10V. 14, 15. 16. 17. 18, 19. 20. 21. 2. 23, + Resolution ref. AGN/20/RES/11 (1951) requires applying the predominance test (even if in the requesting country the facts amount to an offence against the ordinary law). It states that “(..) ‘no request for information, notice of persons wanted and, above all, no request for provisional arrest for offences of a predominantly political (...) character is ever sent to the International Bureau or the NCBs, even if - in the requesting country - the facts amount to an offence against the ordinary law.” FINDINGS In reviewing the issues raised, the Commission based its findings on information provided by the Applicant, the NCBs concerned and INTERPOL’s General Secretariat. ‘The Commission had already concluded on this case during its 104" session. Therefore, it focused study on the newly discovered facts presented by the Applicants in support of their application for revision, The political character of the case 4) The Applicant The Applicant explains that on April 2018 the Working Group on Arbitrary Detention (WGAD) issued Opinion n, 33/2018, concerning the case brought forth by Mr. Mohamed Ghadda, an opposition Senator in Mauritania. The document was sent to the Applicant on 22 June 2018 and he provided a copy of it to the Commission. In its conclusions, the Working Group determined that the detention of Mr. Ghadda is arbitrary and in contravention of the Universal Declaration of Human Rights and the 1966 Covenant on Civil and Political Rights. The Working Group also states it is convinced that Mr. Ghadda’s activism in the Senate and in the political scene of Mauritania originated his detention, in a context of heavy repression aimed at supressing dissident voices. The Working Group called for his immediate release. Furthermore, the Applicant states that the Committee against Torture (CAT) has issued Concluding Observations regarding Mauritania’s second country report, in which Mr. Ghadda’s case is cited; the Committee regrets that Mauritania still denies the arbitrary character of his detention, in disregard of the WGAD Opinion. The Committee also called for the national authorities to carry out ‘investigations and the prosecution of those responsible for undue detentions and for the victims, especially Mr. Ghadda, to be granted reparations, Moreover, the Applicant states that the President of Mauritania, Mr. Aziz, publically stated that the Conclusions of the Working Group would not be applied by the national judicial authorities because it ‘would be a violation of the country’s sovereignty to do so. In fact, according to the Applicant, the WGAD Opinion was not implemented, and Mr. Ghadda was only set free in early September 2018, when the detention delays according to Mauritanian legislation could no longer be renewed. ‘The Applicant contends that because the criminal case against Mr. Ghadda before national authorities is based on the same facts as that against him and because the legal proceedings against them are also the same, the conclusion that the prosecution of Mr. Ghadda is founded in political motives must also be reached in reference to the Applicant. Moreover, the Applicant provided a copy of Mr. Ghadda’s testimony before the investigating judge in charge of corruption cases, given on 12 October 2017, in which Mr. Ghadda provides details of the ‘Applicant’s participation in the political activities of opposition parties, by funding their activities. Mr. Ghadda also states that he views the Applicant’s aid as a political support to him and that he felt it was especially needed after he feared there might be a possibility that Mr. Aziz, the current President of Mauritania, would seek re-election for a third term. In further support of the Applicant’s claim that the case against him is of a political character, he submitted an interview given by Mr. Ghadda after having been released from prison, in which he stated that even before the first and only instance in which he was brought before a judge, the police would have told him to cooperate and that he was merely a “pawn” in the case against the Applicant. (CCP/ 106/BOUAMATOU & DEBAGH, Page 3/10