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EuropeanConventionHandbookForPolice

The use of force in

The use of force in policing Page 27 suspects before the appropriate authorities. If the police attempt to punish suspected offenders through the use of force, the very foundation of the rule of law is undermined. This would have an extremely negative impact upon society as a whole, apart from a failure to comply with European standards. Article 2 applies to the conduct of both the officers who actually use lethal force and to the officers who are responsible for the planning and control of police operations where lethal force is a possibility. 49 The police must not choose tactical options which make the use of lethal force inevitable or highly likely. Officers responsible for the planning and control of operations where force may be used are required to ensure that medical assistance is provided. Police officers must be given clear guidance (in legal terms and training terms) as to how and when they may use their weapons. In the Makaratzis v Greece case, the European Court of Human Rights stressed that police officers should not be left in a vacuum when performing their duties, whether in the context of a pre-planned operation or a spontaneous chase of a person perceived to be dangerous: a legal and administrative framework should define the limited circumstances in which law-enforcement officials may use force and firearms, in the light of the international standards which have been developed in this respect. 50 ■ In Makaratzis v Greece, the Court was ‘struck by the chaotic way in which the firearms were actually used by the police in the circumstances’. An unspecified number of police officers had fired a hail of shots at the applicant’s car with revolvers, pistols and submachine guns. 51 The applicable provisions of Greek law were insufficiently clear. The Court stated that ‘as well as being authorised under national law, policing operations must be sufficiently regulated by it, within the framework of a system of adequate and effective safeguards against arbitrariness and abuse of force.’ 52 ■ In Nachova v Bulgaria, persons suspected of deserting from military service were pursued by Bulgarian Military Police officers. The suspected deserters were unarmed and had not used violence to resist arrest. However, when they sought to flee over a fence, they were shot dead. The Strasbourg Court examined whether this was a lawful use of force. It held that ‘potentially deadly force cannot be considered absolutely necessary where it is known that the 49 See McCann and Others v the United Kingdom, judgment of 27 September 2005. 50 Makaratzis v Greece, judgment of 20 December 2004. 51 Makaratzis v Greece, judgment of 20 December 2004 at paragraph 67. 52 Makaratzis v Greece judgment of 20 December 2004 at paragraph 58.

The European Convention on Human Rights and Policing Page 28 person to be arrested poses no threat to life or limb and is not suspected of having committed a violent offence’. This is the case, even if it means that the opportunity to catch the fugitive will be lost. 53 Any use of lethal force by police will be subjected to the most careful scrutiny. 54 As discussed above, a positive obligation exists to undertake an effective investigation into the taking of life. 55 Police operations, including the policing of demonstrations, must be planned and controlled in such a manner as to minimise any risk to life. 56 A range of equipment must be available to officers, so that they are not forced to have recourse to live ammunition. ■ In Simsek v Turkey, the Strasbourg Court held that it was ‘unacceptable’ that police did not have access to a range of equipment to quell disorder. The lack of such equipment meant that officers were forced to rely on lethal force, with resulting deaths, when other methods (e.g. water cannon or rubber bullets) may have been more appropriate. 57 ■ In McCann and Others v the United Kingdom, the United Kingdom authorities implemented an anti-terrorist operation against an active service unit of the Irish Republican Army. Having closely examined the planning and control of the operation, the Court determined that it had not taken adequate account of the possibility of erroneous intelligence assessments, or of the potential opportunities to arrest the terrorists. In addition, the deployment of soldiers from the British Army’s Special Air Service (‘SAS’), with their militaristic training indicated that the planning and control of the operation lacked ‘the degree of caution in the use of firearms to be expected from law enforcement personnel in a democratic society’. 58 The requirement that the planning and control of police operations be carried out in such a manner as to minimise the likelihood of recourse to lethal force is of particular importance in public order policing. It requires that police must have a range of less lethal tactical options available to deal with any disorder. For example, rubber bullets, water cannon, personal protective equipment, 53 Nachova v Bulgaria, judgment of 6 July 2005 at paragraph 107. 54 McCann and others v the United Kingdom, judgment of 27 September 1995 at paragraph 150. 55 See p. 25 above. 56 Bubbins v the United Kingdom, judgment of 17 March 2005 at paragraph 136. 57 Simsek v Turkey, judgment of 26 July 2005 at paragraph 111. 58 McCann and Others v the United Kingdom, judgment of 27 September 1995, at paragraph 212.