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EuropeanConventionHandbookForPolice

Maintaining a

Maintaining a professional police service Page 115 Further, all persons subject to criminal proceedings retain the right to respect for private and family life. This right is a limited right, so it may be restricted in certain situations. In the case of criminal proceedings involving police officers, the media and public are likely to be interested in the details of the case. In addition, there is a public interest in knowing that there is an independent and effective mechanism for the investigation of complaints against officers. However, there may be safety or security concerns for police officers or their families whose identities are revealed. In addition, the public interest in knowing the specific identity of an individual police officer is lower than knowing that a police officer is the subject of disciplinary or criminal proceedings. Therefore, while the default position under Article 6 is that proceedings should be public, there may be situations where, on the basis of an identified risk, and in accordance with relevant provisions of national law allowing for the Court to prevent reporting of the identity of a defendant, the identity of a police officer should not be disclosed. Protecting the police officer during criminal trials The Strasbourg Court has accepted that special arrangements may be appropriate in certain cases to protect vulnerable witnesses, for example by withholding their identity or by screening them while they are giving evidence in court. This is of general applicability, but may be of specific relevance to certain police officers. However, such measures taken on the ground of expediency cannot be allowed to interfere with the fundamental right of an accused person to a fair trial. The matter is generally considered in terms of the fairness of the admissibility of evidence. Over the course of time, the Court has elaborated its approach. The Court’s jurisprudence also highlights the importance placed on the domestic court’s assessment of the need for the witness to remain anonymous. A decision to protect the anonymity of a witness had to be justified by reasons which were both relevant and also sufficient in each case to ensure that the interests of a witness properly outweighed those of the accused. ■ In Lüdi v Switzerland, statements had been given by an undercover police officer whose actual identity was not known to the applicant, but whom he had met on five occasions. The State had sought to argue that the need to protect the undercover agent’s anonymity was vital in order to continue with the infiltration of drug-dealers, but the Court considered that the legitimate interest in protecting the identity of a police officer engaged in such investigations could have been met in a manner which was also consistent with respect for the interests of the defence. Here, neither the investigating judge nor the

The European Convention on Human Rights and Policing Page 116 trial courts had been willing to hear the officer as a witness or to carry out a confrontation to allow his statements to be contrasted with the applicant’s assertions, nor had the defence enjoyed even the opportunity to question the officer to attempt to cast doubt on his credibility, and thus there had been a violation of the guarantee. 334 ■ In Van Mechelen and Others v the Netherlands, the Court held that there had been a violation of Article 6 since the defence had not only been unaware of the identity of the police officers but had also been prevented from observing their demeanour while under direct questioning, therefore not allowing their reliability to be tested. The State had not been able to explain to the Court’s satisfaction why such extreme limitations on the rights of an accused had been required, and there had been a failure to counterbalance the handicaps under which the defence laboured in presenting its case. Further, the Court considered that the position of a police officer in such situations ‘is to some extent different from that of a disinterested witness or a victim’ on account of his close link with the prosecution and, consequently, the use of an anonymous police witness ‘should be resorted to only in exceptional circumstances’. 335 Right to decent working conditions Police officers, like all public servants, are entitled to decent working conditions. In addition, they are entitled to be ‘provided with special health and security measures, taking into account the particular character of police work.’ 336 This is important in order to ensure that the profession of policing is recognised as an important one for society, capable of attracting a high calibre of applicant. In addition, when police officers are remunerated adequately, they are less likely to be tempted to engage in corruption. 334 Lüdi v Switzerland, judgment of 15 June 1992 at paragraphs 44-50. 335 Van Mechelen and Others v the Netherlands, judgment of 23 April 1997 at paragraphs 56-65. 336 European Code of Police Ethics at paragraph 32.