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EuropeanConventionHandbookForPolice

The use of force in

The use of force in policing Page 23 In certain European countries there is what has been described as ‘a culture of impunity’, in which state officials may inflict ill-treatment without fear of sanction. This is a consequence of a prevailing attitude, which turns a blind eye to the practice. 38 In consequence, the use of routine and systematic ill-treatment has become engrained in the police service of certain states, condoned (if not implicitly encouraged) by supervisory officers, prosecutors and judges, and even when uncovered, there may be little indication that prosecution of wrongdoers is likely. 39 A lack of impartial and effective investigations into allegations of torture and other ill-treatment can create a climate of impunity 40 . Treatment in violation of European standards is by no means restricted to certain countries. In a report on a recent visit to Switzerland, the European Committee for the Prevention of Torture found that ‘information gathered suggests that the phenomenon of police brutality witnessed by the CPT in the past’ remained current. Such ill-treatment, which was corroborated by consistent medical evidence, occurred mostly during arrest, or during transport to police stations and during initial interrogation at the police station. 41 Such a climate will have a negative impact upon public support for the police. However, the situation can be improved, through the implementation of legal training and other reforms, as well as through improving conditions of employment for police officers. For example, in its report on a recent visit to Georgia, the CPT stated that the ‘establishment of clear rules (in relation to the use of force) … has also contributed to improving the professionalism of police officers and, as a consequence, public trust in the police.’ 42 This chapter focuses on the use of force by police. Police use of force primarily occurs during arrests and public assemblies. The Council of Europe Commissioner for Human Rights has recognised that ‘for the purpose of 38 14th General Report, CPT/Inf (2004) 28, paragraph 25. 39 CommDH (2004) 3, ‘Report of the Commissioner for Human Rights on the visit to Latvia, 5-8 October 2003’, paragraphs 10-13 at paragraph 13: ‘In a country where, in civil society, there are serious concerns about the conduct of some members of the police it is particularly hard to understand how no cases can have been brought direct before the courts.’ 40 ‘Police Torture and other ill-treatment – It’s ‘just normal’ in Moldova’, Amnesty International, November 2009 available at: http://www.amnesty.org/en/library/asset/EUR59/009/2009/ en/1b2df020-bf3d-4bfb-9bb9-c7ea620d562a/eur590092009eng.pdf. 41 Rapport au Conseil fédéral suisse relatif à la visite effectuée en Suisse par le Comité européen pour la prévention de la torture et des peines ou traitements inhumains ou dégradants (CPT) du 10 au 20 octobre 2011, CPT/Inf (2012) 26 at paragraph 10. 42 Report to the Georgian Government on the visit to Georgia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 5 to 15 February 2010, CPT/Inf (2010) 27 at paragraph 15.

The European Convention on Human Rights and Policing Page 24 performing their duties the law provides the police with coercive powers and (they) may use reasonable force when lawfully exercising their powers.’ 43 Both of these scenarios present significant challenges. The case law of the European Court of Human Rights demonstrates this. This jurisprudence provides a comprehensive framework, setting out useful guidance for administrations, police services and individual officers that can help them adhere to the standards of the European Convention on Human Rights. Discharging police responsibilities The police are the most visible manifestation of government authority. Their main duties are to: (i) maintain the rule of law and public tranquillity; (ii) protect and respect the individual’s fundamental rights and freedoms; (iii) prevent and combat crime; (iv) and to provide assistance and services to the public. Police officers are required, in the performance of their duties, to respect and protect human dignity and uphold the rights of all persons. By virtue of their onerous responsibilities, police officers are sometimes required to use force in the course of their duties. This may occur in a range of contexts: for example, during the arrest of a violent person; if necessary to protect themselves or others; or in order to prevent a crime from being committed. It is extremely important that any use of force by police is the minimum necessary, applied lawfully and can be accounted for. This is the case, both in terms of ensuring compliance with the law and ensuring public confidence in the police. In recognition of the importance of this issue, the use of force by the police is regulated strictly by national and international law. As stated above, the Strasbourg Court has developed a significant amount of case law concerning the use of force by police. This jurisprudence provides a framework for considering whether a use of force by police is lawful. It also provides very useful guidance to all police officers, whatever their rank. The primary Articles of the Convention which govern the use of force by police are Articles 2 and 3. Article 2 restricts the use of lethal or potentially lethal force to a very limited set of circumstances (in effect, where such use is absolutely necessary for the protection of life). Article 3 imposes an absolute prohibition on the use of torture or inhuman or degrading treatment or punishment. Both Articles require that national law prevents conduct prohibited by them and require the State to take certain steps to prevent the infliction of conduct in 43 Opinion of the Commissioner for Human Rights concerning Independent and Effective Determination of Complaints against the Police, CommDH(2009)4, 12 March 2009.