Înapoi There must be no impunity for police violence

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Police brutality is still a grave problem in several European countries. During my missions I have received numerous allegations against the police of unprovoked violence before, during and after arrest. When I have asked the victims why they have not filed complaints, the answer has often been that they feared to be beaten up again. Others, however, have taken their case to the European Court of Human Rights in Strasbourg which this year has passed a great number of judgments against States for excessive or abusive use of force by the police.

Such illegal behaviour by policemen is particularly serious as the very role of the police in a democratic society is to defend the population against crime, including violent crime. When the law enforcement forces themselves break the law the whole system of justice is derailed.

This is of course generally recognized among governments in Europe. Much effort is also made to recruit and train police officers to cope with difficult situations within the limits of the law. Corruption is discouraged and Codes of Ethics promoted. Still, cases of police brutality remain.

The solution is not to stigmatize the members of the police forces; they are human beings who often work in difficult circumstances. It should also be stressed that acts of police brutality are often not isolated incidents but products of a mentality. In several transition countries there is a remaining sense that a good police is one who can “solve the case” by producing a confession. At the same time, courts have relied excessively on such signed statements instead of requesting other types of evidence. This has worked as an incentive to obtain confessions by coercion.

There is certainly a need to take effective action to prevent or prosecute, judge and punish criminal acts. However, all means are not justified, the general interest of security and rule of law should be defended - but not at the cost of the fundamental rights of the individuals. The Strasbourg Court has clarified that there is a limit: “The Court, being aware of the danger […] of undermining or even destroying democracy on the ground of defending it, affirms that the Contracting States may not, in the name of the struggle against espionage and terrorism, adopt whatever measures they deem appropriate” . 

There are of course situations when the use of police force can be justified, for instance, to control a riot or to apprehend a suspect. However, this possibility should be strictly contained. One requirement is lawfulness; it is particularly important that the laws are clear for such situations. The Strasbourg Court has stated that “[the] legal and administrative framework [must] define the limited circumstances in which law enforcement officials may use force and firearms. […]Police officers [are not] to be left in a vacuum when performing their duties, whether in the context of a prepared operation or a spontaneous chase against a person perceived to be dangerous”.

Another requirement is that of proportionality. The use of force is justified only in a situation of absolute necessity and should even then be practiced with the maximum restraint. This requires that such operations are planned and controlled with this particular intention. The broadly-published police action against demonstrators recently in Tbilisi fell short of these standards.

Police violence against persons deprived of their liberty is however not acceptable, except for extreme cases of self-defence. Prisoners often complain that they are beaten and kicked when moved between places of detention. The safety of such transportations has to be ensured through other means and is no justification for such violations.

Ill-treatment during interrogation is still common in a number of countries. During my visits to Azerbaijan, Armenia and Albania this autumn I was informed about the frequency of such cases. It is absolutely essential that the authorities take firm action to stop such malpractices.

The Strasbourg Court has made clear that there should be a legal obligation to undertake effective inquiries into serious allegations of such violations. They should be adequate to lead to the identification and the trials of those responsible and they must be independent, transparent, prompt and thorough. All cases of death in custody should automatically be subject to an impartial examination.

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has issued policy guidelines for such investigations and pointed out, among other requirements, that any inaction to initiate an investigation into serious allegations has to be motivated. Neglect on this point might in itself amount to a violation of the European Convention on Human Rights.

In order for the investigations to be credible it is necessary that those conducting the inquiry have no relationship to the law enforcement staff implicated in the case. Instead of the police itself doing the investigation, the Prosecutor might have a specialized team for the review of such cases. Another model is that a general or special police ombudsman are entrusted the investigations. A further possibility would be police complaints commissions with participation of members of civil society.

When recently in Ireland I visited the special ombudsman office set up there since May: Garda Siochana Ombudsman Commission. It receives complaints from the public and seeks to provide an independent and effective oversight of policing. It is clearly a serious agency and a model for other countries. It is recruiting more than 80 staff members and about half of them are investigators of whom a large number are recruited from abroad. The Garda Ombudsman can initiate mediation but also recommend disciplinary action or criminal prosecution when police misconduct has been revealed.

Change of mentality requires no less than a new culture of policing. Clear guidelines for police conduct drafted in line with international human rights principles are an essential tool. The European Code of Police Ethics is of guidance here. Thorough initial and continued training of members of the forces to increase their awareness of the importance of respect for human rights in their work is crucial.

The building of a new culture of policing would be promoted by an open and public debate. Public trust in the police requires a free discussion in the media. As the Court reiterated in a recent judgment: “in a democratic state governed by the rule of law the use of improper methods [by the police] is precisely the kind of issue of which the public have the right to be informed” . 

Thomas Hammarberg
Strasbourg 03/12/2007
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