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EuropeanConventionHandbookForPolice

The use of force in

The use of force in policing Page 41 torture, under Article 101 paragraph 1 of the Criminal Code. The failure to do so, and the fact that the officer was allowed to continue working as a police officer even after his conviction, meant that there had been a violation of Article 3. The Strasbourg Court was particularly concerned by the Moldovan Government’s assertion that torture was ‘considered an ‘average-level crime’, to be distinguished from more serious forms of crime and thus warranting reduced sentences’. It said that ‘(s)uch a position is absolutely incompatible with the obligations resulting from Article 3 of the Convention, given the extreme seriousness of the crime of torture’. 121 121 Paduret v Moldova, judgment of 5 January 2010 at paragraphs 58 and 77.

The European Convention on Human Rights and Policing Page 42 Chapter 3 Deprivation of liberty Deprivation of liberty and the European Convention on Human Rights Article 5 of the European Convention on Human Rights (‘the Convention’) regulates the circumstances in which a person may be deprived of their liberty, the minimum rights to which they are entitled when deprived of their liberty, grants a right of judicial review of detention and creates a right to compensation for unlawful deprivation of liberty. Police officers are given significant amounts of discretionary power to prevent and to investigate crime. This is only proper, for in order to protect the rights of others to live in a community free from the threat of intimidation, violence or theft of property, police officers must of necessity interfere with the rights of those suspected of posing such risks. Yet untrammelled authority sits uneasily alongside the notion of the rule of law. Democratic society calls for limitations upon such discretionary authority, and for accountability for its exercise. Herein lays the core of the task of the European Court of Human Rights: to provide an appropriate balance between State power and individual rights to ensure that police officers use their powers in a manner that is not arbitrary. Arguably, the most significant form of interference with the rights of individuals (short of death or torture) is the power to deprive an individual of his liberty. Loss of liberty carries with it significant implications for individuals. Indeed, the European Committee for the Prevention of Torture or Inhuman or Degrading Treatment or Punishment (‘the CPT’) considers that the period immediately after deprivation of liberty is when an individual is most vulnerable. 122 This is self- evident. Communication with the outside world is at a stroke significantly restricted (and may indeed involve only the rights to have notification of the loss of liberty made to others, or to a consultation with a legal representative). This sense of vulnerability is exacerbated by the possibility of prolonged detention with the consequential impact upon reputation, family life, and even financial interests. 122 See 6th General Report [CPT/Inf (96) 21], paragraph 15. Relevant extracts are reproduced in Appendix A, below.