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Policing and the

Policing and the European Convention on Human Rights Page 15 ‘practical and effective’. This again emphasises the idea of the police officer as the protector of human rights, for many of these obligations will have a direct impact upon the discharge of police responsibilities. This can be seen in the imposition of a duty to take some positive step of an executive or operational nature, such as to undertake a criminal investigation, 10 or to intervene in a situation where there is a real risk of domestic violence, 11 or where there is an identifiable risk of violence from another person, 12 or where the rights of protestors are under threat from counter-demonstrators. 13 The idea of ‘autonomous concepts’ in the European Convention on Human Rights Across Europe, domestic legal arrangements vary significantly, particularly in respect of criminal procedure. It is important to appreciate that many of the terms contained in the European Convention on Human Rights have been interpreted by the European Court of Human Rights as having a specific meaning in the context of the Convention. This meaning is independent of any meaning which they might have in domestic legal systems and is justified not only to secure uniformity of interpretation across Europe but also to ensure that the effectiveness of the Convention cannot be compromised by restrictive domestic interpretation. One example of particular importance for police officers is the expression ‘criminal charge’ in Article 6 of the Convention. As will be discussed in chapter 4, a suspect’s entitlement to certain rights is triggered at the stage when a ‘criminal charge’ arises. However, across Europe, the stage in domestic law at which an individual can be said to be ‘charged’ varies significantly: in some States, a police officer will ‘charge’ an individual (at the point of entry into formal police custody), in others a prosecutor will do so (after receiving and considering police reports, and often after many hours of police custody), while in other legal systems a judge will formally ‘charge’ an individual (normally some days after the outset of detention). The rights accorded a suspect by Article 6 clearly cannot depend upon such variations in criminal procedure. Indeed, the Court’s interpretation of Article 6 stresses that an individual will be deemed to be ‘charged’ at the point when an official notification is given to him that he is suspected of an offence, 10 E.g. Aydin v Turkey, judgment of 25 September 1997 at paragraphs 103-109: see p. 65 below. 11 See further p. 39 below. 12 E.g. Osman v the United Kingdom, judgment of 28 October 1998, discussed at p. 65 below. 13 E.g. Plattform Ärzte für das Leben v Austria¸ judgment of 21 June 1988, discussed at p. 103 below.

The European Convention on Human Rights and Policing Page 16 a situation that may arise well before the outset of detention (as, for example, with the issue of a search warrant). 14 Similar issues arise with the guarantee against arbitrary deprivation of liberty under Article 5, for whether an individual can be said to be deprived of liberty in terms of the European Convention on Human Rights is not dependent upon domestic status. 15 The idea of the Convention as a ‘living instrument’ The importance of the case law of the Strasbourg Court in providing direction to domestic officials (such as police officers), courts and legislators has been noted above. However, this interpretation is not static, for the Strasbourg Court has often referred to the European Convention on Human Rights as ‘a living instrument which ... must be interpreted in the light of present-day conditions’. 16 In other words, the text is given a ‘dynamic’ or ‘evolutive’ interpretation as the Court seeks to reflect changes in European society and its prevailing ideas, values and standards. This idea of the case law as ‘moderated precedent’, too, has implications for the police. For example, there is now far less tolerance of the use of physical force that is not warranted by the actions of a detained person, and a readier willingness to label certain action as ‘torture’ (rather than as in the past, merely ‘inhuman’ treatment). 17 While this also emphasises the ‘autonomous nature’ of many of the terms found in the Convention, it also stresses the underlying values and approaches that drive the Court’s judgments in a number of areas. Another example is the expression ‘necessary in a democratic society’ which arises whenever there has been an interference with rights such as respect for private life and the right of assembly in determining whether a State has been able to show that the interference has been justified. Here, ‘evolutive’ interpretation is closely related to the establishment of common European standards and reflects the Court’s conception of the Convention as ‘a constitutional instrument of European public order’. 18 This means, for example, that certain operations involving policing of public protest are likely to be viewed with particular concern if they suggest a narrow and continuing intolerance of the rights of minority groups, for such views are now likely to be considered as populist and uninformed. 19 14 See further p. 77 below. 15 See p. 44 below. 16 Tyrer v the United Kingdom, judgment of 25 April 1978 at paragraph 31. 17 See p. 36. 18 Loizidou v Turkey (preliminary objections), judgment of 23 March 1995 at paragraph 75. 19 See Alekseyev v Russia, judgment of 21 October 2010 at paragraphs 68-88 and 106-110, discussed at p. 104 below.