THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND POLICING he European Convention on Human Rights and Policing Convention he European T A handbook for police o cers Jim Murdoch and other law enforcement o cials Ralph Roche THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND POLICING A handbook for police officers and other law enforcement officials Jim Murdoch Ralph Roche Council of Europe Publishing The European Convention on Human Rights and Policing Page 2 The opinions expressed in this handbook are the responsibility of the authors and do not necessarily reflect the official policy of the Council of Europe. All requests concerning the reproduction or translation of all or part of the publica- tion should be addressed to the Directorate of Communications (F-67075 Strasbourg or [email protected]). All other correspondence concerning this publication should be addressed to the Support to Human Rights National Implementation Unit, Human Rights Policy and Development Department, Directorate of Human Rights, Directorate General of Human Rights and Rule of Law, Council of Europe. Photo: Cover and layout: SPDP, Council of Europe © Council of Europe, December 2013 Printed at the Council of Europe Page 3 Jim Murdoch Professor Jim Murdoch joined the School of Law at the University of Glasgow after qualifying as a solicitor. He read Law as an undergraduate at Glasgow and has an LLM from the University of California at Berkeley. He was Head of the School of Law between 1996 and 2000. He has taught at the Universities of Mainz, Freiburg, Hamburg and Paris Ouest, and was a professeur stagiaire with the Directorate of Human Rights of the Council of Europe. He special- ises in domestic and European human rights law. Professor Jim Murdoch is a regular participant in Council of Europe co-operation activities in Central and East European states and has developed a particular interest in non-judicial human rights enforcement mechanisms. Ralph Roche Ralph Roche studied at Trinity College Dublin and University College Dublin in Ireland. He is a solicitor, admitted in Northern Ireland and in England and Wales. He has long experience of working in human rights, including at the Human Rights Chamber for Bosnia and Herzegovina and in Northern Ireland. In 2004, he co-authored a book entitled “Commentary on the European Convention on Human Rights as applied in Bosnia and Herzegovina and at Strasbourg” which was published in English and the languages of Bosnia and Herzegovina. Ralph Roche has worked for many years as a Council of Europe consultant in polic- ing and human rights across the Europe. ■ This handbook was published in the framework of the Joint Programme between the European Union and the Council of Europe entitled “Reinforcing the fight against ill-treatment and impunity”. The European Convention on Human Rights and Policing Page 4 Contents INTRODUCTION 7 POLICING AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS 10 The work of the Council of Europe and the European Convention on Human Rights 12 The European Convention on Human Rights – key principles of interpretation 13 The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 20 Conclusion 21 THE USE OF FORCE IN POLICING 22 Introduction 22 Discharging police responsibilities 24 The right to life: Article 2, European Convention on Human Rights 25 The prohibition of torture and inhuman or degrading treatment: Article 3, European Convention on Human Rights 33 DEPRIVATION OF LIBERTY 42 Deprivation of liberty and the European Convention on Human Rights 42 Protecting liberty and security of person: Article 5, European Convention on Human Rights 43 Conclusion 63 Contents Page 5 INVESTIGATING CRIME; AND ENSURING THE INTEGRITY OF THE CRIMINAL PROCESS 64 Introduction 64 Positive obligations arising under the Convention to investigate allegations of criminal activity in order to protect the rights of individuals 65 Preventing and investigating crime – surveillance, and obtaining evidence through searches, etc.: Article 8, European Convention on Human Rights 67 The importance of ‘fair hearing’ guarantees: Article 6, European Convention on Human Rights 75 The investigation of crime – use of undercover officers, etc.: Article 6, European Convention on Human Rights 78 Questioning suspects: detainees’ rights while in police custody 80 Access to legal representation: Article 6(3)(c), European Convention on Human Rights 85 The admissibility of irregularly obtained evidence in subsequent criminal proceedings 88 The presumption of innocence: Article 6(2), European Convention on Human Rights 91 Conclusion 92 POLICING DEMOCRATIC FREEDOMS 93 Introduction 93 General considerations: interferences with Articles 8 - 11, European Convention on Human Rights 95 Justification for interferences with Articles 8-11, European Convention on Human Rights 100 Public assemblies – policing issues 104 MAINTAINING A PROFESSIONAL POLICE SERVICE 110 The Council of Europe Code of Police Ethics 110 Rights of police officers 112 APPENDIX A: CPT STANDARDS AND THE POLICE 117 APPENDIX B: EUROPEAN CODE OF POLICE ETHICS 146 Page 7 Introduction he handbook “The European Convention on Human Rights and Policing” is published in the framework of the Joint Programme between the T European Union and the Council of Europe entitled “Reinforcing the fight against ill-treatment and impunity”, as part of the efforts to enhance the professionalism of police and in view of disseminating Council of Europe standards on policing. The main purposes of the police in a democratic society governed by the rule of law are: fto maintain public tranquillity and law and order in society; fto protect and respect the individual’s fundamental rights and freedoms as enshrined, in particular, in the European Convention on Human Rights; fto prevent and combat crime; fto detect crime; fto provide assistance and service functions to the public.1 In the interest of independent, impartial and effective delivery of policing services, and to protect against political interference, the police are granted a wide degree of discretion in the performance of their duties. For the purpose of performing their duties, the law provides the police with coercive powers and the police may use reasonable force when lawfully exercising their powers. In recent decades, as scientific and technological knowledge have advanced, the special powers available to the police for the purpose of performing their duties have increased, together with their capacity to intrude in people’s lives and interfere with individual human rights.2 1 Recommendation Rec(2001)10 of the Committee of Ministers to member states on the European Code of Police Ethics at Article I.1. 2 Opinion CommDH(2009)4 of the Commissioner for Human Rights concerning Independent and Effective Determination of Complaints against the Police at paragraphs 15-17. The European Convention on Human Rights and Policing Page 8 As a response to the actual abuses of human rights by the police, which have taken place in the past and, unfortunately, continue to occur at present and in different countries, one of the key underlying principles of the Council of Europe in regard to policing is that it should have as its fundamental objective the protection of human rights. There is no conflict between effective policing and human rights protection. On the contrary, the road to one passes through the other. Considering that police activities to a large extent are performed in close contact with the public, police efficiency is dependent on public support. At the same time, public confidence in the police and its support are closely related to the attitude and behaviour of members of the police towards the public, in particular their respect for the human dignity and fundamental rights and freedoms of the individual. The European Convention on Human Rights sets out a comprehensive frame- work governing the operational work of police services, compliance with which will ensure that the public supports them. Much of the case law of the European Court of Human Rights can be used in practice to improve the degree of human rights protection in the work of the police. In particular, the Court has constantly reiterated that Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most clauses of the Convention, Article 3 allows no exception and no derogation from it is permissible, even in the event of a public emergency threatening the life of the nation.3 Adherence to the rule of law applies to the police in the same way that it applies to every member of the public. There may be no attempt to conceal, excuse or justify the unlawful exercise of coercive or intrusive powers by a police officer by reference to his or her lawful recourse to coercive and intru- sive powers. Police ethics and adherence to professional standards serve to ensure that the delivery of police services is of the highest quality. There can be no police impunity for ill-treatment or misconduct.4 The handbook was drawn up bearing in mind the European Convention on Human Rights, in the light of the relevant case law of the European Court of Human Rights, as well as the standards of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 3 Chahal v. United Kingdom, judgment of 15 November 1996. 4 Ibid. at paragraph 18. Introduction Page 9 (CPT) and other relevant standards established within the framework of the Council of Europe. Therefore, it shall become a useful tool in the hands of police and other state authorities in order to prevent and fight police misconduct or impunity and uphold the human rights. Christos Giakoumopoulos Director of Human Rights Directorate General of Human Rights and Rule of Law Council of Europe The European Convention on Human Rights and Policing Page 10 Chapter 1 Policing and the European Convention on Human Rights he role of the police in protecting the liberties of individuals in the com- munity involves particular challenges.