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EuropeanConventionHandbookForPolice

The use of force in

The use of force in policing Page 33 of effectiveness means that the investigating body must have the powers to seize evidence, carry out searches as necessary, arrest, etc. If details of the events leading to a person’s death lie wholly, or mainly, within the knowledge of the State or its agents, strong presumptions of fact will arise regarding such events. The burden of proof, as to explaining those events, can lie with the State. 80 In particular, any injuries to a deceased’s body will require detailed explanation. 81 The Council of Europe Commissioner for Human Rights has placed the significance of the investigative obligations under Articles 2 and 3 for police in context. In an Opinion concerning Independent and Effective Determination of Complaints against the police 82 , he stated that there ‘are two principal purposes of the five [European Convention on Human Rights] effective police complaints investigation principles. On the one hand, they have been developed to ensure that an individual has an effective remedy for an alleged violation of Article 2 or 3 of the Convention. On the other hand, the principles are intended to protect against violation of these fundamental rights by providing for an investigative framework that is effective and capable of bringing offenders to justice.’ The prohibition of torture and inhuman or degrading treatment: Article 3, European Convention on Human Rights Article 3 of the European Convention on Human Rights prohibits torture and inhuman or degrading treatment or punishment. The text of Article 3 is succinct: No one shall be subjected to torture or inhuman or degrading treatment or punishment. The guarantee is expressed in absolute terms. The Court has consistently reiterated that Article 3 enshrines one of the most fundamental values of democratic societies. Article 3 prohibits torture and inhuman and degrading treatment and punishment in all circumstances. As noted in respect of Article 2 above, even the taking of life can be justified in certain, very limited, circumstances: in contrast, there are no circumstances in which conduct prohibited by Article 3 can be tolerated, even in the context of the fight against terrorism 83 80 Salman v Turkey, judgment of 27 June 2000 at paragraph 100. 81 Velikova v Bulgaria, judgment of 18 May 2000. 82 CommDH(2009)4, 12 March 2009 at paragraph 31. 83 Tomasi v France, judgment of 27 August 1992.

The European Convention on Human Rights and Policing Page 34 or organised crime. 84 This is regardless of the conduct of the person. Unlike most provisions of the Convention, Article 3 includes no exceptions and no derogation from it is permissible, even in the event of a public emergency threatening the life of the nation. 85 In Gäfgen v Germany, the Strasbourg Court said that the ‘philosophical basis underpinning the absolute nature of the right under Article 3 does not allow for any exceptions or justifying factors or balancing of interests, irrespective of the conduct of the person concerned and the nature of the offence at issue.’ 86 There are clear implications for police in the context of the use of force. The European Court of Human Rights has made it clear that, in relation to any person, ‘any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of Article 3’. 87 As interpreted by the Court, this provision involves (as with Article 2) not only obligations upon States to refrain from infliction of ill-treatment but also positive duties to protect persons and to investigate effectively allegations of breach of the guarantee. Ill-treatment by police is, regrettably, a common feature of life in many European countries. As noted in the introduction to this chapter, it occurs in wealthy and poor countries, and new as well as established democracies. One interesting feature of the phenomenon is that it displays similar features, regardless of the country where it occurs. In Albania, allegations of ill-treatment received by the CPT ‘consisted essentially of slaps, punches, kicks and truncheon blows, and related mainly to … the time of questioning….’ 88 In respect of Ireland, the CPT found that ‘alleged ill-treatment consisted mostly of kicks, punches and blows with batons to various parts of the body.’ 89 When does Article 3 apply? In order for conduct to come within the scope of Article 3, it must ‘attain a minimum level of severity.’ 90 This is entirely dependent upon the individual facts and circumstances of each case (for example, forcing a detainee to stand for three hours may not be inhuman treatment if the person concerned is a fit and healthy person even although there would need to be a good reason 84 Selmouni v France, judgment of 28 July 1999. 85 Chahal v the United Kingdom, judgment of 15 November 1996. 86 Gäfgen v Germany, judgment of 1 June 2010 at paragraph 107. 87 Ribitsch v Austria, judgment of 4 December 1995 at paragraph 38. 88 CPT/Inf (2012) 11 at paragraph 13. 89 CPT/Inf (2011) 3 at paragraph 14. 90 Ireland v the United Kingdom, judgment of 18 January 1978 at paragraph 162.