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EuropeanConventionHandbookForPolice

Policing and the

Policing and the European Convention on Human Rights Page 13 Europeans, diversity in local arrangements is still respected. This too is recognised in the composition of the Court when giving judgments, for attempts are made to allocate the judges appointed in respect of each Member State of the Council of Europe to allow for an appropriate geographical balance and representation of the different legal traditions found across the continent. 8 This in turn ensures that a wider perspective is available to the Court than one based largely or exclusively upon one system of criminal procedure. The European Convention on Human Rights – key principles of interpretation Significant numbers of judgments are issued annually by the Strasbourg Court. It operates a system of ‘moderated precedent’, a phrase which signifies that it seeks to build upon existing judgments and to apply these wherever similar cases arise, but that from time to time it may find it appropriate to depart from the approach adopted in past judgments. The vital point is that the case law of the Court gives concrete form to the principles and guarantees of the European Convention on Human Rights. The Convention cannot be properly understood without examination of its cases, but the case law is subject to ‘evolutive’ interpretation by the Strasbourg Court. Much of the text that follows involves discussion of cases of relevance to policing in an attempt to help police officers appreciate the importance of the Convention in their work. But before detailed discussion begins, it is helpful to outline some of the key concepts found throughout this jurisprudence by way of introductory explanation. The subsidiary nature of the Strasbourg Court The stress in this work is upon the Strasbourg Court’s jurisprudence. However, it is also important to appreciate that the primary guarantor for the rights contained in the European Convention on Human Rights is not the Strasbourg Court but the domestic judge, legislature, or official. This has direct relevance for police officers in discharging their responsibilities. States undertake in Article 1 of the European Convention on Human Rights to ‘secure’ to ‘everyone within their jurisdiction’ the range of rights contained in the Convention. Indeed, before an individual or non-governmental organisation can bring a complaint before the Strasbourg Court, it must be shown that any domestic 8 Cases are normally heard by one of five Chambers, but where a case raises issues of particular difficulty, or where consistency in determinations is required, the Court may sit in a Grand Chamber.

The European Convention on Human Rights and Policing Page 14 remedy (such as recourse to domestic law) has been exhausted. 9 In other words, the complaints machinery of the Strasbourg Court is subsidiary to national arrangements. Diversity in national legal and administrative arrangements is respected, provided that these arrangements meet the minimum expectations of the European Convention on Human Rights. What the case law of the Court does is to give guidance to the national authorities in the 47 Member States of the Council of Europe on what these minimum expectations entail. In consequence, the principle of subsidiarity emphasises the all-important point that domestic officials such as police officers are in a real sense the front-line defenders of human rights insofar as they are likely to be the first point of interaction between individuals and state power in a number of situations. Protecting human rights by ‘securing’ these rights often starts with police officers. Positive and negative obligations As noted, Article 1 provides that States undertake to ‘secure to everyone within their jurisdiction’ the rights and freedoms set out in the European Convention on Human Rights (and its protocols). In consequence, the State is normally under a negative obligation to refrain from interfering with the protected rights; and that negative obligation is reflected, primarily, by the language used in the text of the European Convention on Human Rights: for example ‘No-one shall be deprived of his life intentionally ...’ (Article 2); ‘No-one shall be subjected to torture ...’ (Article 3); ‘No-one shall be deprived of his liberty except ...’ (Article 5); and ‘Everyone has the right to freedom of expression ... without interference by public authorities’ (Article 10). But the securing of rights is not confined to a requirement that States and state officials refrain from interfering with protected rights, for there may also be obligations to take positive steps to protect the rights of individuals. This too is reflected in some of the language in the text of the Convention: for example, ‘Everyone’s right to life shall be protected by law’ (Article 2); and ‘Everyone charged with a criminal offence has ... [the right] to be given [legal assistance] free when the interests of justice so require’ (Article 6). Further, the case law of the Strasbourg Court indicates a range of situations in which positive obligations can also be implied from the text where it is necessary to do so to ensure that the rights under the European Convention on Human Rights are 9 The rules governing the admissibility of complaints are complex, and largely fall outside the scope of this work. For further details, see the Court’s on-line guide available at: http:// www.echr.coe.int/Pages/home.aspx?p=caselaw/analysis&c=#n1347458601286_pointer.