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Maintaining a

Maintaining a professional police service Page 113 Police officers and freedom of association As an important principle, police officers enjoy the same civil and political rights as any other person. One of these rights is freedom of association. This includes the right to form and join trade unions and other representative associations. Any interference with these rights must have a specific justification, which must be in accordance with the law and must be related to the specific nature of the police service in the country concerned. It is not sufficient to provide a generic rationale for any restriction. The European Court of Human Rights has stated that police officers owe a special duty of loyalty, reserve and discretion. 327 Accordingly, the expression of political opinions by police officers and police representative associations can be interfered with if it is ‘aimed at ensuring respect for the requirement that police officers should act in an impartial manner when expressing their views so that their reliability and trustworthiness in the eyes of the public be maintained…’ 328 Many European countries prevent police officers from taking an active part in politics. The reason for this is to ensure that the police are seen as politically neutral, in recognition of the fact that they are at the service of the State. 329 This will be a stronger rationale in countries with a history of totalitarianism where the police enforced such regimes. In the Rekvenyi v Hungary case, the Court stated that ‘the desire to ensure that the crucial role of the police in society is not compromised through the corrosion of the political neutrality of its officers is one that is compatible with democratic principles.’ 330 Police officers and allegations of wrongdoing A further consistent theme throughout this handbook has been the need for independent and effective investigations of credible allegations of wrongdoing by police officers in a number of circumstances. For example, this positive obligation on the State to carry out an effective investigation arises whenever there is a credible claim or other indications that an individual has been subjected to ill-treatment falling within the scope of Article 3. This is the so-called 327 Trade Union of the Police in the Slovak Republic and Others v Slovakia, judgment of 25 September 2012 at paragraphs 57 and 69. 328 Ibid. paragraph 70. 329 Rekvenyi v Hungary, judgment of 20 May 1999 at paragraph 41. 330 Ibid.

The European Convention on Human Rights and Policing Page 114 ‘procedural aspect’ or ‘procedural limb’ of Article 3, but the obligation can also arise under other provisions of the European Convention on Human Rights. The result is that a violation of a Convention guarantee may be established if any subsequent State investigation of a credible assertion that ill-treatment has taken place is deemed inadequate. The procedural ‘limb’ of a guarantee thus seeks to render the guarantee effective in practice. To this end, the investigation must be sufficiently thorough to be capable of establishing the facts and also of leading to the identification and punishment of those responsible. It is important to note, however, that ‘an obligation to investigate ‘is not an obligation of result, but of means’: not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant’s account of events; however, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible’. 331 This accountability requirement means that police officers may find themselves under investigation, for a disciplinary or criminal matter. Being the subject of an investigation is an extremely stressful matter, regardless of the professionalism of the investigation and regardless of one’s own conduct. In most circumstances, it is likely that police officers will be entitled to the same rights as any other person under investigation if the investigation alleges criminal wrongdoing. In the event that disciplinary proceedings may result in outcomes that are determinative of civil rights (e.g. dismissal), Article 6 guarantees may also apply, unless domestic law clearly excludes such proceedings, and the exclusion is ‘justified on objective grounds in the State’s interest’. 332 If disciplinary proceedings indeed involve Article 6 of the Convention (which requires that any person subject to criminal proceedings be afforded a detailed range of procedural rights in order to ensure that the proceedings are fair), the additional guarantees required in respect of Article 6 must be afforded. These include: ffthe right to know the details of the charges; ffthe right to call and cross-examine witnesses; ffthe right to a trial within a reasonable time; and ffthe right to adequate time and facilities for the preparation of the defence. 333 331 Barabanshchikov v Russia, judgment of 8 January 2009 at paragraph 54. 332 Vilho Eskelinen and Others v Finland, judgment of 19 April 2007 at paragraph 62. 333 See pp. 75-77 above. Further details regarding Article 6 of the Convention can be found at the following link: 99C81707A6FCF466/0/DG2ENHRHAND032006.pdf