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EuropeanConventionHandbookForPolice

Policing and the

Policing and the European Convention on Human Rights Page 19 use of force which is ‘no more than absolutely necessary’. Here, ‘a stricter and more compelling test of necessity must be employed’. 26 Article 5, on the other hand, permits the lawful arrest or detention of a person ‘when it is reasonably considered necessary to prevent his committing an offence’. Here, too, reasons for interferences with the rights of individuals must be both relevant and - in the particular case – also sufficient. 27 The principle of non-discrimination The principle of non-discrimination itself reflects an important European value. It gains expression in Article 14 of the European Convention on Human Rights. This provides that: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. However, Article 14 has no independent existence (although Protocol no 12 now provides a separate stand-alone right not to be discriminated against). 28 Article 14 can thus only be considered in conjunction with one or more of the substantive guarantees contained in Articles 2 to 12 of the Convention or in one of the protocols. ‘Discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations…’. 29 Certain grounds of discriminatory treatment are regarded with particular suspicion, and it may prove highly difficult for a State to persuade the Strasbourg Court that the discriminatory treatment was justified. For example, the European Court of Human Rights has said that where a difference in treatment is based on race or ethnic origin, ‘the notion of objective and reasonable justification must be interpreted as strictly as possible’. 30 Attacks upon Roma and destruction of their property have also led to findings of violations. 26 McCann and Others v the United Kingdom, judgment of 27 September 1995 at paragraph 149. 27 See further pp. 46 and 52 below. 28 Protocol No 12 reads as follows: ‘(1) The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. (2) No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.’ 29 DH and Others v Czech Republic, judgment of 13 November 2007 at paragraph 175. 30 DH and Others v Czech Republic, judgment of 13 November 2007 at paragraph 176.

The European Convention on Human Rights and Policing Page 20 ■ In Nachova and Others v Bulgaria, a violation of Article 14 taken together with Article 2 was established in respect of the failure to hold an effective investigation into allegations of racially-motivated killing. While it had not been shown that racist attitudes had played a part in the killings, the failure of the authorities to investigate allegations of racist verbal abuse with a view to uncovering any possible racist motives in the use of force against members of an ethnic or other minority had been ‘highly relevant to the question whether or not unlawful, hatred-induced violence has taken place’. 31 ■ In Moldovan and Others v Romania (no 2), attacks by villagers aided by police officers had resulted in the deaths of three individuals and the destruction of 13 homes belonging to Roma families. The applicants had been forced to live in livestock premises, and only ten years later had the domestic courts ordered the payment of compensation. Violations of Article 14 taken with Article 6 and Article 8 were established. 32 The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment In interpreting the European Convention on Human Rights, the Strasbourg Court will also make use of other international standards, such as those relating to the use of firearms by law enforcement officials. 33 Other European initiatives are also of relevance in discussion of policing, including Recommendations of the Committee of Ministers of the Council of Europe. 34 However, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT) has had a particular impact upon the Court’s case law, and has led it inter alia to adopt a more critical approach to the assessment of poor material conditions of detention. The CPT is mandated to visit places of detention with a view to strengthening the protection of persons deprived of their liberty. The Committee achieves its goal not through a system of complaint and confrontation but through the process of dialogue and discussion with state officials based upon the information gathered from its visits to places of detention. The work of the Committee is surrounded by a guarantee of confidentiality, but States now invariably request publication of reports and 31 Nachova and Others v Bulgaria, judgment of 6 July 2005 at paragraphs 144-168. 32 Moldovan and Others v Romania (No 2), judgment of 12 July 2005 at paragraphs 136-140. See also the similar cases of Gergely v Romania, judgment of 26 April 2007, and Kalanyos and Others v Romania, judgment of 26 April 2007. 33 See further p. 29 below. 34 For example, Recommendation Rec(2001)10 of the Committee of Ministers to Member states on the European Code of Police Ethics, discussed at pp. 110-112 below.