THE EUROPEAN CODE OF
POLICE ETHICS[1]
Recommendation Rec(2001)10 adopted by the
Committee of Ministers of the Council of Europe on 19 September 2001 and
explanatory memorandum
Council of Europe Publishing
French edition :
Le code européen d’éthique de la police
(Recommandation Rec(2001)10 et exposé des motifs)
ISBN 92-871-4830-9
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responsibility of the author(s) and do not necessarily reflect the
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2002 Reprinted October 2002 Printed at the Council of Europe
1. Recommendation Rec(2001)10, adopted by
the Committee of Ministers of the Council of Europe on 19 September 2001, was
prepared by the Committee of Experts on Police Ethics and Problems of Policing
(PC-PO).
2. The publication contains the text of
Recommendation Rec(2001)10 and the explanatory memorandum thereto.
Recommendation
Rec(2001)10
of
the Committee of Ministers to member states on the European Code of Police
Ethics
(Adopted
by the Committee of Ministers on 19 September 2001 at the 765th meeting of the
Ministers’ Deputies)
The
Committee of Ministers, under the terms of Article15.b of the Statute of the
Council of Europe,
Recalling
that the aim of the Council of Europe is to achieve greater unity between its
members ;
Bearing
in mind that it is also the purpose of the Council of Europe to promote the
rule of law, which constitutes the basis of all genuine democracies;
Considering
that the criminal justice system plays a key role in safe-guarding the rule of
law and that the police have an essential role within that system;
Aware
of the need of all member states to provide effective crime fight-ing
both at the national and the international level;
Considering
that police activities to a large extent are performed in close contact with
the public and that police efficiency is dependent on public support;
Recognising
that most European police organisations – in addition to upholding the law –
are performing social as well as service functions in society;
Convinced
that public confidence in the police is closely related to their attitude
and behaviour towards the public, in particular their respect for the human
dignity and fundamental rights and freedoms of the individual as enshrined, in
particular, in the European Convention on Human Rights;
Considering
the principles expressed in the United Nations Code of Conduct for Law
Enforcement Officials and the resolution of the Parliamentary Assembly of
the Council of Europe on the Declaration on the Police;
Bearing
in mind principles and rules laid down in texts related to police matters –
criminal, civil and public law as well as human rights aspects – as adopted by
the Committee of Ministers, decisions and judgments of the European Court of
Human Rights and principles adopted by the Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment;
Recognising
the diversity of police structures and means of organising the police in Europe
;
Considering
the need to establish common European principles and guidelines for the overall
objectives, performance and accountability of the police to safeguard security
and individuals’ rights in democratic societies governed by the rule of law,
Recommends
that the governments of member states be guided in their internal legislation,
practice and codes of conduct of the police by the principles set out in the
text of the European Code of Police Ethics, appended to the present
recommendation, with a view to their progres-sive implementation, and to give
the widest possible circulation to this text.
Appendix
to Recommendation Rec(2001)10
Definition
of the scope of the code
This
code applies to traditional public police forces or police services, or to
other publicly authorised and/or controlled bodies with the primary objectives
of maintaining law and order in civil society, and who are empowered by the
state to use force and/or special powers for these purposes.
I.
Objectives of the police
1.
The main purposes of the police in a democratic society governed by the rule of
law are :
–
to maintain public tranquillity and law and order in society;
–
to protect and respect the individual’s fundamental rights and freedoms as
enshrined, in particular, in the European Convention on Human Rights;
–
to
prevent and combat crime ;
–
to
detect crime;
–
to
provide assistance and service functions to the public.
II.
Legal basis of the police under the rule of law
1. The police are a public body which
shall be established by law.
2. Police operations must always be
conducted in accordance with the national law and international standards
accepted by the country.
3. Legislation guiding the police shall be
accessible to the public and suffi-ciently clear and precise, and, if
need be, supported by clear regulations equally accessible to the public.
4. Police personnel shall be subject to
the same legislation as ordinary citizens, and exceptions may only be
justified for reasons of the proper performance of police work in a
democratic society.
III.
The police and the criminal justice system
1. There shall be a clear distinction
between the role of the police and the prosecution, the judiciary and the
correctional system ; the police shall not have any controlling functions over
these bodies.
1. The police must strictly respect the
independence and the impartiality of judges ; in particular, the police shall
neither raise objections to legitimate judgments or judicial decisions, nor
hinder their execution.
1. The police shall, as a general rule,
have no judicial functions. Any delega-tion of judicial powers to the police
shall be limited and in accordance with the law. It must always be possible to
challenge any act, decision or omission affect-ing individual rights by the
police before the judicial authorities.
2. There shall be functional and
appropriate co-operation between the police and the public prosecution. In
countries where the police are placed under the authority of the public
prosecution or the investigating judge, the police shall receive clear instructions
as to the priorities governing crime investigation policy and the progress of
criminal investigation in individual cases. The police should keep the superior
crime investigation authorities informed of the implementa-tion of their
instructions, in particular, the development of criminal cases should be
reported regularly.
3. The police shall respect the role of
defence lawyers in the criminal justice process and, whenever appropriate,
assist in ensuring an effective right of access to legal assistance, in
particular with regard to persons deprived of their liberty.
4. The police shall not take the role of
prison staff, except in cases of emergency.
IV.
Organisational structures of the police
A.
General
1. The police shall be organised with a
view to earning public respect as professional upholders of the law and
providers of services to the public.
2. The police, when performing police
duties in civil society, shall be under the responsibility of civilian
authorities.
3. The police and its personnel in uniform
shall normally be easily recognisable.
4. The police shall enjoy sufficient
operational independence from other state bodies in carrying out its given
police tasks, for which it should be fully accountable.
5. Police personnel, at all levels, shall
be personally responsible and accountable for their own actions or omissions or
for orders to subordinates.
6. The police organisation shall provide
for a clear chain of command within the police. It should always be possible to
determine which superior is ultimately responsible for the acts or omissions of
police personnel.
7. The police shall be organised in a way
that promotes good police/public relations and, where appropriate, effective
co-operation with other agencies, local communities, non-governmental
organisations and other representatives of the public, including ethnic
minority groups.
1. Police organisations shall be ready to
give objective information on their activities to the public, without
disclosing confidential information. Professional guidelines for media
contacts shall be established.
2. The police organisation shall contain
efficient measures to ensure the integrity and proper performance of
police staff, in particular to guarantee respect for individuals’ fundamental
rights and freedoms as enshrined, notably, in the European Convention on Human
Rights.
3. Effective measures to prevent and
combat police corruption shall be estab-lished in the police organisation at
all levels.
B.
Qualifications, recruitment and retention of police personnel
1. Police personnel, at any level of
entry, shall be recruited on the basis of their personal qualifications
and experience, which shall be appropriate for the objectives of the police.
2. Police personnel shall be able to
demonstrate sound judgment, an open attitude, maturity, fairness, communication
skills and, where appropriate, leadership and management skills. Moreover, they
shall possess a good understanding of social, cultural and community issues.
3. Persons who have been convicted for
serious crimes shall be disqualified from police work.
4. Recruitment procedures shall be based
on objective and non-discriminatory grounds, following the necessary screening
of candidates. In addition, the policy shall aim at recruiting men and women
from various sections of society, includ-ing ethnic minority groups, with the
overall objective of making police personnel reflect the society they
serve.
C.
Training of police personnel
1. Police training, which shall be based
on the fundamental values of democracy, the rule of law and the protection of
human rights, shall be developed in accordance with the objectives of the
police.
2. General police training shall be as
open as possible towards society.
1. General initial training should
preferably be followed by in-service training at regular intervals, and
specialist, management and leadership training, when it is required.
1. Practical training on the use of force
and limits with regard to established human rights principles, notably the
European Convention on Human Rights and its case-law, shall be included in
police training at all levels.
2. Police training shall take full account
of the need to challenge and combat racism and xenophobia.
D.
Rights of police personnel
1. Police staff shall as a rule enjoy the
same civil and political rights as other citizens. Restrictions to these rights
may only be made when they are necessary for the exercise of the functions of
the police in a democratic society, in accor-dance with the law, and in
conformity with the European Convention on Human Rights.
2. Police staff shall enjoy social and
economic rights, as public servants, to the fullest extent possible. In
particular, staff shall have the right to organise or to participate in
representative organisations, to receive an appropriate remunera-tion and
social security, and to be provided with special health and security measures,
taking into account the particular character of police work.
3. Disciplinary measures brought against
police staff shall be subject to review by an independent body or a court.
4. Public authorities shall support police
personnel who are subject to ill-founded accusations concerning their duties.
V.
Guidelines for police action/intervention
A.
Guidelines for police action/intervention : general principles
1. The police, and all police operations,
must respect everyone’s right to life.
2. The police shall not inflict,
instigate or tolerate any act of torture or inhuman or degrading treatment or
punishment under any circumstances.
3. The police may use force only when
strictly necessary and only to the extent required to obtain a legitimate
objective.
4. Police must always verify the
lawfulness of their intended actions.
5. Police personnel shall carry out orders
properly issued by their superiors, but they shall have a duty to refrain from
carrying out orders which are clearly illegal and to report such orders,
without fear of sanction.
6. The police shall carry out their tasks
in a fair manner, guided, in particular, by the principles of impartiality and
non-discrimination.
1. The police shall only interfere with
individual’s right to privacy when strictly necessary and only to obtain a
legitimate objective.
2. The collection, storage, and use of
personal data by the police shall be carried out in accordance with international
data protection principles and, in particular, be limited to the extent
necessary for the performance of lawful, legitimate and specific
purposes.
3. The police, in carrying out their
activities, shall always bear in mind everyone’s fundamental rights, such as
freedom of thought, conscience, religion, expression, peaceful assembly,
movement and the peaceful enjoyment of possessions.
4. Police personnel shall act with
integrity and respect towards the public and with particular consideration for
the situation of individuals belonging to especially vulnerable groups.
5. Police personnel shall, during
intervention, normally be in a position to give evidence of their police status
and professional identity.
6. Police personnel shall oppose all forms
of corruption within the police. They shall inform superiors and other
appropriate bodies of corruption within the police.
B.
Guidelines for police action/intervention: specific situations
1.
Police investigation
1. Police investigations shall, as a
minimum, be based upon reasonable suspicion of an actual or possible offence or
crime.
2. The police must follow the principles
that everyone charged with a criminal offence shall be considered innocent
until found guilty by a court, and that everyone charged with a criminal
offence has certain rights, in particular the right to be informed promptly of
the accusation against him/her, and to prepare his/her defence either in
person, or through legal assistance of his/her own choosing.
3. Police investigations shall be
objective and fair. They shall be sensitive and adaptable to the special needs
of persons, such as children, juveniles, women, minorities including ethnic
minorities and vulnerable persons.
4. Guidelines for the proper conduct and
integrity of police interviews shall be established, bearing in mind paragraph
48. They shall, in particular, provide for a fair interview during which those
interviewed are made aware of the reasons
for
the interview as well as other relevant information. Systematic records of
police interviews shall be kept.
1. The police shall be aware of the
special needs of witnesses and shall be guided by rules for their protection
and support during investigation, in par-ticular where there is a risk of
intimidation of witnesses.
2. Police shall provide the necessary
support, assistance and information to victims of crime, without
discrimination.
1. The police shall provide
interpretation/translation where necessary throughout the police investigation.
2. 2. Arrest/deprivation of liberty by the
police
3. Deprivation of liberty of persons shall
be as limited as possible and conducted with regard to the dignity,
vulnerability and personal needs of each detainee. A custody record shall be
kept systematically for each detainee.
4. The police shall, to the extent
possible according to domestic law, inform promptly persons deprived of their
liberty of the reasons for the deprivation of their liberty and of any charge
against them, and shall also without delay inform persons deprived of their
liberty of the procedure applicable to their case.
5. The police shall provide for the
safety, health, hygiene and appropriate nourishment of persons in the course of
their custody. Police cells shall be of a reasonable size, have adequate
lighting and ventilation and be equipped with suitable means of rest.
6. Persons deprived of their liberty by
the police shall have the right to have the deprivation of their liberty
notified to a third party of their choice, to have access to legal
assistance and to have a medical examination by a doctor, whenever possible, of
their choice.
7. The police shall, to the extent
possible, separate persons deprived of their liberty under suspicion of having
committed a criminal offence from those deprived of their liberty for other
reasons. There shall normally be a separation between men and women as well as
between adults and juveniles.
VI.
Accountability and control of the police
1. The police shall be accountable to the
state, the citizens and their repre-sentatives. They shall be subject to
efficient external control.
2. State control of the police shall be
divided between the legislative, the executive and the judicial powers.
1. Public authorities shall ensure
effective and impartial procedures for complaints against the police.
2. Accountability mechanisms, based on communication
and mutual understanding between the public and the police, shall be promoted.
3. Codes of ethics of the police, based on
the principles set out in the present recommendation, shall be developed in
member states and overseen by appropriate bodies.
VII.
Research and international co-operation
1. Member states shall promote and
encourage research on the police, both by the police themselves and external
institutions.
2. International co-operation on police
ethics and human rights aspects of the police shall be supported.
3. The means of promoting the principles
of the present recommendation and their implementation must be carefully
scrutinised by the Council of Europe.
Explanatory
memorandum
I.
Introduction
1.
Codes of police ethics
Much
that has been written about the police takes the form of descrip-tions of how
they do or would act in various situations. There is tendency, except in a
moralising manner, to set aside questions of how the police should act : to
make clear the values and standards that are required of police in a modern,
democratic society. The provisions of the European Code of Police Ethics
provides a basis for just such a frame-work. It could not be more timely. Many
European countries are reor-ganising their police structures to promote and
consolidate democratic values. They are also concerned to secure common
policing standards across national boundaries both to meet the expectations of
increasingly mobile Europeans, who wish to be confident of uniform, fair
and predictable treatment by police, and to enhance their powers of
co-operation, and hence their effectiveness, in the fight against
inter-national crime. The provision of the code also supports the Council of
Europe’s aim of achieving greater unity between its members.
A
glance at the role of the police in a democracy reveals the particular
relevance of a code of ethics for the police. People within democracies have
organised their states to secure maximum freedom for themselves within the rule
of law. Likewise, the criminal justice systems have been developed with the
purpose of providing individual liberty and security. In democratic societies
where the rule of law prevails, the police under-take the traditional functions
of preventing, combating and detecting crime, preserving public tranquillity,
upholding the law, maintaining public order, and protecting the fundamental
rights of the individual. Moreover, in such societies the police provide
various services to the public that are of a social nature, which support their
other activities.
They
are granted discretion to fulfil these functions. The police in
democracies help to sustain the values of democracy, and are them-selves imbued
with the self-same values. In general, the public consent to and, indeed,
welcome the exercise of legitimate authority by the police so long as the
police are seen to carry out their tasks towards worthwhile, democratic ends in
an ethically acceptable manner. In turn, when they fulfil these
conditions, the police have every right to expect that the public will trust
them to carry out their responsibilities, and sup-port and co-operate with them
in their activities when doing so. These ideas about policing within
democracies are at the heart of Council of Europe policies.
Although
a code of police ethics is only the beginning of any process to secure common
police standards, without one such a process has little hope of succeeding. By
laying the foundation for ethical norms, a code of police ethics enhances the
possibility that ethical problems are more readily identified, more fully
understood, analysed more carefully and more readily resolved. It also prompts
questions about the values served by the police as an organisation, and their
proper application. Key con-cepts within the police, such as “loyalty”,
“consent”, “impartiality”, “discretion” and “professionalism” all benefit
from the common refer-ence and shared meaning, and hence understanding, made
possible by a code. Moreover, it can help articulate personal standards of conduct,
which capture a sense of pride in being members of a police organisa-tion. This
is of particular importance to police recruits, who need to know from the
outset the core values that should define and govern their work. The
mention of police recruits is a reminder of how impor-tant codes are for police
training. Without some such objective reference for standards and values, the
trainer’s task is made doubly difficult. Both the origin and authority of
standards have to be argued for, with the risk that they are seen as merely
local and the creation of no one but the trainer. It should be added that a
police code of ethics has merit at all levels of training.
As
has been mentioned, police services are greatly enhanced if the police enjoy
the consent and close co-operation of the public. The public is dependent upon
the responsible delivery of police services for which the police are invested
with considerable authority, including discretion, which constitutes a virtual
monopoly of legitimate coercion. For this reason the public has a need for
assurance. A well publicised police code of ethics, by underlining the common
standards, purposes and values of the police, can help to promote public trust
in the police and further good public relations and co-operation. The same
standards, by making clear the range and scope of police services, help
safeguard the police against unwarranted, frivolous and vexatious demands, and,
above all, limit their liability for failures of service.
Moreover,
a police code of ethics can work as a regulatory instrument for the internal
organisation of the police. This is one of the striking features of the
European Code of Police Ethics. By providing minimum standards, values and
ethical frameworks, it may serve a regulatory function in at least four ways :
to maintain quality control of the per-sonnel of the police organisation
(including civilian staff); to help in the exercise of leadership, management
and supervision ; to make senior members of the organisation more accountable;
and to provide a norm for the adjudication of difficult, internal
disputes.
In
terms of its possible influence upon police practice, a police code of
ethics recommends best practice for the police, and is a specialised version of
habitual, everyday, common-sense principled conduct. There are, however, a
number of meanings for the word “ethics”. Aristotle established the most widely
understood meaning of the word. For him, it refers to the critical discipline
that focuses upon everyday ethical conduct and beliefs for its subject matter.
This is not the meaning of the word intended in the title the European Code of
Police Ethics. Modern societies and their police are partly organised under the
twin principles of division of labour and co-operation. People find themselves
engaged in a large number of specialised activities. While their everyday
relation-ships employ common standards of conduct, they often have need of more
specialised understanding and guidance when it comes to their particular jobs
and occupations. This is because their work focuses upon particular aspects of
human conduct in ways that highlight ethical dilemmas that are regularly
repeated, and which their occupational roles require them to cope with and
resolve. This is particularly the case with those working in the public
services, where the public entrust their well-being to occupational
specialists. In this context the word “ethics” refers to that body of
principled requirements and prescrip-tions that is deemed fit to regulate
the conduct of the occupation. It is important to note that “ethics” in this
sense represents an attempt to apply everyday ethics to the specialist demands
and dilemmas of public organisations. It is in this sense that “ethics” is used
in the European Code of Police Ethics.
The
police objective of upholding the rule of law encompasses two distinct but
interrelated duties: the duty of upholding the properly enacted and constituted
law of the state, including securing a general condition of public
tranquillity, and the related duty of keeping strictly within prescribed
powers, abstaining from arbitrary action and respecting the individual rights
and freedoms of members of the public.
The
rule of law is focused not only on what is done but on how it is done. In
carrying out their duties, police need to respect citizens’ indi-vidual rights,
including human rights, and freedoms and avoid arbitrary or unlawful action.
This is fundamental to the meaning of the rule of law and therefore to the
whole meaning and purpose of police duty in a democracy.
Above
all, the rule of law requires that those who make, adjudicate and apply the law
should be subject to that same law. In other words, the police should be
subject to the self-same law that they apply and uphold. It is the mark of the
police in a fully-fledged and mature democ-racy that they bind and
subject themselves to the very law that they are pledged to uphold. The police
role in upholding and safeguarding the rule of law is so important that the
condition of a democracy can often be determined just by examining the conduct
of its police.
The
European Code of Police Ethics aims to provide a set of principles and
guidelines for the overall objectives, performance and control of the police in
democratic societies governed by the rule of law, and is to a large extent
influenced by the European Convention on Human Rights. The code is
concerned to make specific and define the requirements and
arrangements that fit the police to meet the difficult, demanding
and delicate task of preventing and detecting crime and maintaining law and
order in civil, democratic society. Even if the recommendation is aimed
primarily at governments the guidelines are drafted in such a way that they may
also be a source of inspiration to those dealing with the police and police
matters at a more pragmatic level.
2.The
background to the European Code of Police Ethics
>From
its earliest days, the Council of Europe has had police matters on its agenda.
Indeed, the police play such an important role with regard to the protection of
the fundamental values of the Council of Europe (pluralistic democracy, the
rule of law and human rights) that the Council of Europe provides a natural
platform for European discussion on the role of the police in a democratic
society.
Considerable
case-law relating to the police has been established by the European Court of
Human Rights. Moreover, guiding principles relevant to the police have been
developed by the European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT). The European Social Charter and its
case-law comprises important principles with regard to the social and economic
rights of police personnel. The European Commission against Racism and
Intolerance (ECRI) has developed principles for the police in its
specific field of competence. Moreover, the European Commission for
Democracy through Law (Venice Commission) has adopted texts on constitutional
aspects of the police. The Group of States against Corruption (GRECO) has the mandate
to evaluate national administra-tions, including the police, with regard to
corruption.
Police
organisations have also been subject to the requirements of local and regional
authorities, and this work has also been linked to problems of urban
insecurity. Police and ethnic relations is another area of interest. Moreover,
the Council of Europe has developed activities designed to promote human rights
awareness within the police. Through this work, police practitioners and human
rights experts, representing both states and non-governmental organisations,
have been brought together to deal with problems of human rights in a
professional police context. The training of police personnel in human rights,
and a large number of documents, such as handbooks on police and human rights
issues, are some of the concrete results of this work. It has served to develop
an understanding within national police services of the necessity for raising
awareness of human rights at all levels of the police.
The
Declaration on the Police (Resolution 690 (1979)), adopted by the Parliamentary
Assembly of the Council of Europe in 1979, was an early attempt to provide
ethical standards for the police. It has been a source of inspiration for
answering policy questions on the police in many European states. While the
Committee of Ministers shared the Assembly’s view of the necessity to apply
particularly high ethical standards to the police in democratic societies, they
did not give the declaration unqualified support, and it did not become a
legal instru-ment of the Council of Europe.
The
traditional intergovernmental standard-setting work of the Council of Europe,
carried out under the authority of the Committee of Ministers, has focused on
the police with regard to criminal justice poli-cies, criminal law and
criminology (criminal procedure, crime prevention, victim and witness
protection, juvenile delinquency, custody, organised crime, corruption, public
prosecution, etc.) and public law (personal integrity and data protection,
etc.). Legal instruments – conventions and recommendations – of relevance to
the police have been developed within this framework.
Starting
in 1989, changes occurred in central and eastern Europe, which led the Council
of Europe to intensify considerably its activities with regard to the police.
Within the framework of programmes aiming at supporting legal reform as well as
the reform of public administration, including the police, a large number of
activities (seminars, training sessions and the dissemination of legal
expertise) were implemented under themes such as “the role of the police in a
democratic society”, “police ethics”, and “police and the rule of law”.
It
was in this context of police reform that the need for a normative,
pan-European framework for the police was again highlighted. As a result, the
Committee of Ministers established the Committee of Experts on Police Ethics
and Problems of Policing (PC-PO) under the authority of the European Committee
on Crime Problems (CDPC).
The
terms of reference of the PC-PO were adopted by the CDPC at its 47th plenary
session in 1998, and confirmed by the Committee of Ministers at the 641st
meeting of their Deputies in September 1998.
PC-PO
terms of reference
“The
police play an important role within the criminal justice sys-tem. As opposed
to other professional groups within that system, few international instruments
apply to the police. At the moment many European countries are reorganising
their police as a crucial part of the process to promote and consolidate
democratic ideas and values in society. Police ethics have thus become an
important topic in several member states of the Council of Europe.
The
committee of experts should prepare a study of police ethics in the broad
sense, taking into account such questions as:
–
the
role of the police in a democratic society and their place in the criminal
justice system ;
–
the
objectives of policing under the Rule of Law : prevention of crime, detection
of crime etc ;
–
control
of the police.
The
committee of experts should consider, in particular, aspects of police ethics
related to certain situations that occur in daily police work, such as the
interrogation of suspects and other functions of investigation, the use of
force, the exercise of police discretion etc. Ethical aspects of police
management in general as well as their inclusion as a training subject would
also be covered. In this respect the differences between ethical codes, codes
of professional conduct and disciplinary codes should be taken into
consideration. In carrying out this task the committee should bear in mind the
European Convention on Human Rights and the European Con-vention for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment, as well
as Assembly Resolution 690 (1979) on the Declaration on the Police. It should
take into account the work of the Committee of Experts on Partnership in Crime
Prevention (PC-PA) as well as other relevant activities of the Council of
Europe.
The
outcome of the work should be a report and/or a recommen-dation on police
ethics, which could be used as a guiding frame-work for member states when
police reforms and national codes of police ethics are being considered.”
The
PC-CO1 was composed of experts from Austria, Belgium, Croatia, Cyprus, Czech
Republic, Denmark, France, Greece, Italy, Lithuania,
1.
See the appendix to this publication.
Moldova,
Poland, Portugal, Romania, Slovenia, Spain, “the former Yugoslav Republic of
Macedonia”, Turkey and the United Kingdom. The PC-CO included experts coming
from ministries of the interior, ministries of justice, the police, the prosecution
and the judiciary. The PC-CO was chaired by Mr Karsten Petersen, Deputy Police
Commissioner, Denmark. Two scientific experts – Mr Amadeu Recasens i
Brunet (Director of Escola de Policia de Catalunia and Professor at the
University of Barcelona, Spain) and Mr Neil Richards (Director of Chief Police
Officers Development Programme, National Police Training, Bramshill,
United Kingdom) – were appointed to assist the committee. The Secretariat was
provided by the Directorate General of Legal Affairs, DG I, of the Council of
Europe.
The
European Commission, ICPO-Interpol, the Association of European Police Colleges
(AEPC) and the International Centre of Sociological, Penal and Penitentiary
Research and Studies (Intercenter) were observers to the committee. The
Association for the Prevention of Torture (APT), the European Council of Police
Trade Unions (CESP), the European Network of Police Women (ENP), the European
Federation of Employees in Public Services (EUROFEDOP), the International
Federation of Senior Police Officers (FIFSP), the International Police
Association (IPA) and the International Union of Police Federations (UISP),
were consulted in the final stages of the work.
The
PC-CO based its work upon legal instruments (conventions and rec-ommendations of
the Council of Europe and other international organi-sations) as well as
principles established by the European Court of Human Rights and other bodies
of the Council of Europe, mentioned above. The committee organised hearings
with representatives of the European Committee for the Prevention of Torture
and Inhuman and Degrading Treatment or Punishment and the European Committee of
Social Rights. Moreover, the PC-CO was informed of projects and activ-ities
related to the police carried out by the various Directorates General of the
Council of Europe. The work of the PC-CO was presented and supported at the
12th Criminological Colloquium, organised by the Council of Europe in November
1999, on the theme “Police powers and accountability in a democratic society”,
and at the High Level Conference between European Ministers of the Interior, in
June 2000.
The
PC-CO held six plenary and three working group meetings between December 1998
and March 2001. Following a request by the Parliamentary Assembly, the Committee
of Ministers agreed that a pro-visional draft recommendation be sent to the
Parliamentary Assembly for its opinion. The opinion of the Assembly was taken
into account by the PC-CO at its sixth meeting.
The
text of the draft recommendation, the European Code of Police Ethics, and its
explanatory report were finalised at the sixth meeting of the PC-CO in
March 2001, and submitted for approval and transmission to the Committee of
Ministers at the 50th plenary session of the European Committee on Crime problems
(CDPC), held in June 2001. At the 765th meeting of their Deputies on 19
September 2001, the Committee of Ministers adopted the recommendation and
authorised publication of the explanatory memorandum thereto.
II.
Preamble to the recommendation
The
Committee of Ministers, under the terms of Article15.b of the Statute of the
Council of Europe,
Recalling
that the aim of the Council of Europe is to achieve greater unity between its
members;
Bearing
in mind that it is also the purpose of the Council of Europe to promote the
rule of law, which constitutes the basis of all genuine democracies;
Considering
that the criminal justice system plays a key role in safeguarding the rule of
law and that the police have an essential role within that system ;
Aware
of the common need of all member states to provide effective crime
fighting both at the national and the international level;
Considering
that police activities to a large extent are performed in close contact with
the public and that the police efficiency is dependent on public support
;
Recognising
that most European police organisations – in addition to upholding the law –
are performing social functions as well as service functions in society;
Convinced
that public confidence in the police is closely related to their attitude
and behaviour towards the public, in particular their respect for the human
dignity and fundamental rights and freedoms of the individ-ual as enshrined, in
particular, in the European Convention on Human Rights;
Considering
principles expressed in the United Nations Code of Conduct for Law Enforcement
Officials and the resolution of the Parliamentary Assembly of the Council
of Europe on the Declaration on the Police ;
Bearing
in mind principles and rules laid down in texts related to police matters –
criminal, civil and public law as well as human rights aspects
–
as adopted by the Committee of Ministers, decisions and judgments of the
European Court of Human Rights and principles adopted by the Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment;
Recognising
the diversity of different police structures and means of organising the police
in Europe;
Considering
the need to establish common European principles and guidelines for the overall
objectives, performance and accountability of the police to safeguard security
and individuals’ rights in democratic societies governed by the rule of law;
Recommends
that the governments of member states be guided in their internal legislation,
practice and codes of conduct of the police by the principles set out in the
text of the European Code of Police Ethics, appended to the present
recommendation, with a view to their pro-gressive implementation, and to give
the widest possible circulation to this text.
Commentary
on the preamble
Since
its inception, the Council of Europe has worked to establish and promote common
principles in its member states’ laws, practices and systems. The criminal
justice system has been one of the priorities in this respect, as crime
fighting demands the direct, practical application of the principles on
which the Council of Europe was founded and which it is expected to uphold,
namely the rule of law, democracy and human rights.
Moreover,
the effectiveness of responses to crime depends to a large extent on their
being harmonised within a coherent and concerted European policy. That
requirement is increasingly becoming more impor-tant with the existence of
crime phenomena, such as organised crime and corruption, which often have an
international dimension, in respect of which national systems risk proving
inadequate.
Traditionally,
the elaboration of common standards applicable to law enforcement bodies, such
as the police, has not been as developed, for example with regard to the
judicial side of criminal justice or the imple-mentation of sanctions. The
adoption of the Council of Europe Committee of Ministers’ Recommendation
Rec(2000)19 on the role of public prosecution in the criminal justice system,
as well as the present recommendation is, however, a new trend in this respect.
Moreover, the recognition of the police as a component of the criminal justice
system, thus bringing justice and home affairs closer to each other, is likely
to provide a solid basis for continued harmonisation of standards applicable to
the police.
In
a Europe where national borders become less important the focus on the police
and their powers from an international perspective is unavoid-able. The debate
concerns to a large extent the efficiency of the police in combating
crime that is increasingly operated over national borders, such as organised
crime and corruption. However, the debate is not lim-ited to this perspective.
In a democratic society police powers are restricted with regard to what is acceptable
from the point of view of individuals’ fundamental rights and freedoms, as laid
down in the European Convention on Human Rights. A proper balance between these
interests must be found and it is here that the international ethics of the
police come into play.
The
police are accountable not only to the state but also to the public in such a
society and their efficiency is to a large extent depending on public
support. In this respect the social function and the public service side of the
police are important also for the carrying out of law enforcement.
The
European Convention on Human Rights and its case-law has been considered a
basic framework for the drafting of the present recom-mendation. Moreover,
principles of the European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT) have been incorporated into the
text. The work has also, in relevant parts, been influenced by the
European Social Charter and its case-law. Moreover, other international texts,
particularly appli-cable to the police, such as the United Nations Code of
Conduct for Law Enforcement Officials, and Resolution 690 (1979) of the
Parliamentary Assembly of the Council of Europe on the Declaration on the
Police, have not only been considered in depth, but have also been
influential sources for the drafting of the present recommendation.
The
following Council of Europe texts, which offer guidance in matters relating to
the present recommendation, have been given the closest attention:
–
Framework
Convention for the Protection of National Minorities (ETS No 157); – Resolution
(78) 62 on juvenile delinquency and social change ;
–
Recommendation
No. R (79) 17 concerning the protection of children against ill-treatment;
–
Recommendation
No. R (80) 11 concerning custody pending trial;
–
Recommendation
No. R (83) 7 on participation of the public in crime policy ; – Recommendation
No. R (85) 4 on violence in the family ;
–
Recommendation
No. R (85) 11 on the position of the victim in the framework of criminal law
and procedure ;
–
Recommendation
No. R (87) 15 on regulating the use of personal data in the police sector ;
–
Recommendation
No. R (87) 19 on the organisation of crime prevention;
–
Recommendation
No. R (88) 6 on social reactions to juvenile delinquency among young people
coming from migrant families;
–
Recommendation
No. R (96) 8 on crime policy in Europe in a time of change ;
–
Recommendation
No. R (97) 13 concerning intimidation of witnesses and the rights of the
defence;
–
Resolution
(97) 24 on the twenty guiding principles for the fight against
corruption;
–
Recommendation
No. R (99) 19 concerning mediation in penal matters;
–
Recommendation
No. R (2000) 10 on codes of conduct for public officials;
–
Recommendation
Rec(2000)19 on the role of public prosecution in the criminal justice system;
–
Recommendation
Rec(2000)20 on the role of early psychosocial intervention in the prevention of
criminality ;
–
Recommendation
Rec(2000)21 on the freedom of exercise of the profession of lawyer;
–
ECRI
general policy recommendations ; European Commission against Racism and
Intolerance.
It
should also be mentioned that several other texts (instruments and handbooks,
etc.) produced within the Council of Europe relating to police matters, such as
police and human rights, police ethics, media, racism and intolerance, equality
and minority questions, have been considered.
The
present recommendation has been drafted from the viewpoint that there are big
differences between member states in terms of how their law enforcement/police
tasks are being implemented. This is particularly noticeable in terms of the
status and the organisation of the forces/ser-vices as well as their operating methods.
At the same time there are great similarities, in particular as regards the
objectives of the police and the problems they face in their daily activities.
Having this in mind, the recommendation consists of major guiding principles
that are considered crucial in a well-established democracy, both for the
efficiency of the police and for their acceptance by the public.
The
establishment of common standards is very timely. Police reforms are being
carried out throughout Europe and, particularly in the newer democracies,
police reforms are part of a general move towards consol-idating democratic
principles such as the rule of law and the protection of human rights, in
public administration.
The
present set of principles may serve as guidance and a source of inspiration
when police systems are being reformed. However, it is clear that a reasonable
margin of appreciation must be left to member states, not least with regard to
the differences in historical heritage and levels of development. A foundation for
continued efforts relating to the police has been achieved with this
recommendation and the Council of Europe has made police matters one of its
priorities.
III.
Appendix
Definition
of the scope of the code
This
code applies to traditional public police forces or police services, or to
other publicly authorised and/or controlled bodies with the primary objectives
of maintaining law and order in civil society and, who are empowered by the
state to use force and/or special powers for these purposes.
Commentary
The
definition of the scope of the code at the outset of the recommen-dation
serves the purpose of establishing its applicability. In order to make the code
relevant to as many police systems as possible and considering the variety of
different police systems existing in Europe, in particular their different
stages of development and organisational struc-tures, the definition is
made wide. The definition used in this paragraph makes the code applicable
to “traditional” police in all member states. (It is worth noting that this
definition should not be confused with the recommended objectives of the
police, which are included in Article 1 of the code.)
For
the reasons referred to above, the definition of the scope of the code
contains only the hard-core characteristics that are entrusted to all exist-ing
public police bodies in Europe, that is the power to use force in order to
maintain law and order in civil society, normally including upholding public
order, prevention and detection of crime. Having this definition as the
lowest common denominator for the applicability of the code, there is no need
to establish a detailed description of the various types of police to be
affected. Thus, this code applies to all police organisations responsible for
police activities in civil society. The code applies regard-less of how such
police are being organised; whether centralised or locally oriented, whether
structured in a civilian or military manner, whether labelled as “services” or
“forces”, or whether they are account-able to the state, to regional or local
authorities or to a wider public.
Although
the intention is to have as wide a range as possible for the code, certain
specific types of police are excluded from its scope. The reference to
“traditional” police should be regarded as being the oppo-site to “special
types” of police, which are set up for specific purposes other than
keeping law and order in civil society. Examples of police that do not come
within the scope of the code are military police when exercising their military
functions and secret security services. Another category not covered by the
code is “penitentiary police”, which in the countries where they exist, are
limited to performing their duties in penal institutions.
It
should be added that private security companies are not covered by this
recommendation.
I.
Objectives of the police
1.
The main purposes of the police in a democratic society governed by the rule of
law are:
–
to maintain public tranquillity, and law and order in society;
–
to protect and respect the individual’s fundamental rights and freedoms as
enshrined, in particular in the European Convention on Human Rights;
–
to
prevent and combat crime ;
–
to
detect crime ;
–
to
provide assistance and service functions to the public.
Commentary
Paragraph
1 contains a selection of the most important objectives of the police in a
democratic state governed by the rule of law.
Maintaining
tranquillity and law and order in society are the classical overall objectives
and the full responsibility of the police, often referred to as “public order”
policing. This concept covers a wide variety of police activities among which
providing for the safety and security of persons (physical as well as legal)
and property (private as well as public) and law enforcement between the state
and the individual as well as between individuals should be mentioned.
The
respect for the individual’s fundamental rights and freedoms as enshrined in
the European Convention on Human Rights as an objective of the police is
possibly the most significant symbol of a police service in a society
governed by the rule of law. This objective implies not only a separate
obligation to uphold these rights, but that there are limits as to how far the
police may proceed in order to fulfil their other objectives.
The
wording “notably the European Convention on Human Rights” is chosen in order to
indicate a specific and precise reference to a particu-lar instrument,
without excluding the importance of other relevant human rights texts in this
respect.
Crime
prevention is dealt with differently in member states, however, this is most
commonly, regarded as an overall responsibility of the state. Crime prevention
is often divided between social and situational prevention, both of which apply
to the police.
As
follows from the Council of Europe Committee of Ministers’ Recom-mendations No.
R (83) 7 on participation of the public in crime policy, and No. R (87) 19 on
organisation of crime prevention, effective crime prevention requires active
participation by the community at large, including the public. In recent years
“partnership in crime prevention” has been a frequently used term, which
indicates that crime prevention is not seen as a task exclusive to the police.
The crime prevention activ-ities of the police, other agencies and the public
therefore need to be co-ordinated. Even if in most states the ultimate
responsibility for crime prevention policy does not rest with the police, it is
none the less one of their main objectives as a society governed by the rule of
law which requires safeguards to curb abuse.
Crime
detection is one of the classical primary objectives of police in all states.
Even if crime detection often amounts to a limited part of the total police
work, it is a vital component of the activities of the police.
People
expect much of the police in terms of their crime detection. Effective crime
detection has also a preventive effect in itself, and is thus crucial for
promoting public confidence in criminal justice.
Crime
detection is organised differently in various states ; in some states it is the
responsibility of the general police, whereas in other states it is carried out
by special branches of the police, such as criminal police or judicial police.
The independence of the police from the prosecution authorities also differs to
a large extent. However, the problems the police are facing in their crime
detection are identical all over Europe. This code does not challenge the
centrality of the crime-fighting side of police work, but it underlines
the importance of upholding a proper bal-ance between the efficiency of
the police and the respect for individuals’ fundamental human rights, which is
particularly difficult in crime fight-ing. The principle of
“presumption of innocence” and its accompanying safeguards are certainly of
great importance for persons suspected of crime. In addition, the respect for
individual rights in crime detection, also comprises the rights of other
persons affected, such as victims and witnesses, towards whom the police also
have responsibilities. Safeguards in crime detection are dealt with in section
V.B.
The
provision of assistance to the public is also a feature of most police bodies,
but such functions are more or less developed in various member states. The
inclusion of service functions under the objectives of the police is somewhat
different as it changes the role of the police from that of being a “force” to
be used in society into a “service” body of the society. For some years there
has been a clear trend in Europe to inte-grate the police more fully into civil
society, to bring them closer to the public. The development of “community
policing” in several member states serves such a purpose. One important means
used to do this is to give the police the status of a public service body
rather than a pure law enforcer. In order to make such a shift a bit more than
a semantic exercise, the service side of the police should be included as one
of the purposes of a modern democratic police. Whereas assistance by the police
is generally related to specific situations where the police should have
an obligation to act, such as offering direct assistance to any person in
danger or assisting persons in establishing contact with other authorities or
social services, the service side of the police is more vague and thus
difficult to define. It should not be confused with certain
administrative duties given to the police (issuing passports etc). In general,
the police as a public service body is connected to the role of the police as a
resource for the general public, and easy access to the police is one of the
basic and most important aspects in this respect. The service side of the
police has more to do with police attitudes towards the public than with giving
the police far-reaching service functions in addition to their traditional
duties. It is clear that the police cannot be charged with too heavy a
responsibility for service functions in society. Member states should therefore
establish guidelines for police per-formance and duties in this respect.
II.
Legal basis of the police under the rule of law
1. The police are a public body, which
shall be established by law.
2. Police operations must always be
conducted in accordance with the national law and international standards
accepted by the country.
3. Legislation guiding the police shall be
accessible to the public and sufficiently clear and precise and, if need
be, supported by clear regulations equally accessible to the public.
4. Police personnel shall be subject to
the same legislation as ordinary citizens, and exceptions may be
justified only for reasons of the proper performance of police work in a
democratic society.
Commentary
This
section establishes the legal framework based on the rule of law for the police
as an institution as well as for its actions. The section also con-tains some
fundamental legal requirements, some of which are deduced from the European
Convention on Human Rights and its accompanying case-law. Paragraphs 2 to 5
summarise some of the principles behind the concept of the rule of law with
regard to the police.
Paragraph
2 underlines the idea that the police as an institution is a pub-lic body. It
means that public authorities, ultimately the state, cannot evade their
responsibility for the police and that the police as an institu-tion cannot be
made into a private body. Another thing is that some police functions/powers
can be delegated to private bodies.
Moreover,
paragraph 2 states that police organisations should be estab-lished by law.
This implies that the police as an institution, is based on the national
constitution and/or ordinary legislation, however, this does not exclude detailed
regulation of the police by subordinate instruments, such as governmental
decrees or instructions of the head of service, provided that these are given
under delegated powers in conformity with the constitution/legislation.
Paragraph
3 spells out the principles that should always guide police operations; they
must be lawful, both with regard to national legislation and relevant
international standards. As regards the latter, the European Convention on
Human Rights and related instruments are of particular importance.
Paragraph
4 sets out two general additional principles contained in the “rule of law
concept”, which have been referred to in the European Court of Human Rights
case-law. In order to be in a position to protect his/her own rights against police
powers, the citizen must be aware of which legal rules apply. Firstly, this
implies that regulations are accessible to the general public and, secondly,
the norm, whether primary legis-lation or a subordinate regulation, must be
formulated with sufficient precision. These two requirements are
necessary to give the citizen the possibility of foreseeing the consequences
which a given regulation may entail. It is clear that consequences never can be
foreseeable with abso-lute certainty and, in addition, laws and regulations
must keep pace with changing circumstances. Therefore, the recommendation does
not go any further than the European Court of Human Rights’ dicta, and uses the
wording “sufficiently clear”. There must be a good balance between the
details and the flexibility of a police regulation, concerning both the
basis for the organisation and the performance of operations. The importance of
these principles cannot be underestimated in respect of state powers used
against individuals. This is the reason for having them spelled out in the
recommendation.
A
cardinal principle of the rule of law, contained in paragraph 5, is that the
law applies equally to all citizens, including those who execute the law, such
as police personnel. Exceptions to this rule should be allowed only when it is
necessary for the proper performance of police duties.
Paragraph
5 also implies that, unless there are special reasons, police personnel should,
as a rule, be subject to ordinary legislation as well as to ordinary legal proceedings
and sanctions. Internal disciplinary mea-sures fall outside the scope of this
rule. The European Court of Human Rights has established case-law concerning
the distinction between disciplinary matters and criminal matters. In essence,
it is not feasible for a state to label what, according to international law,
should be considered a criminal matter or a disciplinary matter, and thus
disregard procedural safeguards provided for in Article 6 of the European
Convention on Human Rights.
III.
The police and the criminal justice system
6.
There shall be a clear distinction between the role of the police and the
prosecution, the judiciary and the correctional system; the police shall not
have any controlling functions over these bodies.
Commentary
As
already stated, the police are one of the four components of the criminal
justice system ; police, prosecution service, the courts and the correctional
system. Even though this model of the criminal justice system sees each element
as independent, it is widely accepted that the system should incorporate a
number of checks and balances in order to ensure that the total system, and its
constituent elements operate according to the law and in an efficient
way. At the same time, this model of the criminal justice system, in which
individual cases are seen as passing from one element to another and thereby
justifying the criminal justice process, requires that these elements are
independent and autonomous to a certain degree with regard to each other. Such
a system is more likely to provide safeguards for those passing through it.
Paragraph
6 underlines the importance of a separation of the role of the police from the
other components of the criminal justice system. The police, who are the
first link of the chain, should have no controlling functions over the
other bodies in the criminal justice system.
7.
The police must strictly respect the independence and the impartiality of
judges ; in particular, the police shall neither raise objections to legitimate
judgments or judicial decisions, nor hinder their execution.
Commentary
Paragraph
7 deals with the integrity of the criminal justice system. The independence and
the impartiality of the judiciary is one of the corner stones in a society
governed be the rule of law. The police, as part of the criminal justice
system, are necessarily close to the judiciary and must never act in a way that
may prejudice, or be seen to affect the impar-tiality of the judiciary. On the
other hand, the judiciary should respect the police as a distinct professional
body and not interfere with their professional arrangements.
The
police are subject to the judiciary in judicial decisions, which they must
scrupulously respect and often implement, provided these are legitimate. The
legitimacy, or lawfulness, is related to national law as well as to
international (human rights) law, see also paragraph 3.
The
second part of this paragraph would normally imply that the police must respect
all judgments and decisions of courts and even do what-ever is appropriate to
enable their execution. However, the way in which the paragraph is formulated
opens a possibility for the police not to play the role of “blind implementers”
in situations when the requirements for justice in a democratic society governed
by the rule of law are clearly set aside. It follows from paragraphs 3 and 38
that the police always must check the lawfulness of their actions.
This
paragraph does not prejudice the rights and freedoms of police personnel as
private citizens.
8.
The police shall, as a general rule, have no judicial functions. Any delegation
of judicial powers to the police shall be limited and in accordance with the
law. It must always be possible to challenge any act, decision or omission made
by the police affecting individual rights, before the judicial authorities.
Commentary
As
an exception to the main rule of strict separation of powers between the
executive and the judiciary, the police may in certain situations be entrusted
with judicial powers. The recommendation emphasises that the police should be
in a position to exercise judicial powers only to a limited extent, normally
with regard to minor offences where the facts are simple and where the offender
admits guilt, the sanctions are limited, and often standardised. It is crucial
that these decisions by the police, based on delegation of judicial powers, can
be challenged before a court and that the offender is made aware of this. This
follows from Article 6 of the European Convention on Human Rights, which
ensures everyone’s right to a fair trial by a court of law. Paragraph 8 allows
these police decisions to be challenged before the judicial authorities.
9.
There shall be functional and appropriate co-operation between the police and
the public prosecution. In countries where the police are placed under the
authority of the public prosecution or the investigat-ing judge, the police
shall receive clear instructions as to the priorities governing crime
investigation policy and the progress of criminal inves-tigation in individual
cases. The police should keep the superior crime investigation authorities
informed of the implementation of their instructions, in particular, the
development of criminal cases should be reported regularly.
Commentary
Paragraph
9 reflects the principles contained in the Council of Europe Committee of
Ministers’ recommendation on the role of public prosecution in the criminal
justice system (Rec(2000)19) concerning the relationship between the
prosecution and the police. Due to the different systems pre-vailing in Europe,
that recommendation makes a distinction between mem-ber states where the police
are independent from the prosecution and those where the police are placed
under the authority of the prosecution service. Irrespective of what kind of
system, that recommendation gives two general functions to the prosecution
vis-à-vis the police; to scrutinise the lawfulness of police
investigations, and to monitor whether human rights are respected. Moreover it
indicates that there should be appropriate and functional co-operation between
the public prosecution and the police.
In
countries where the police are placed under the authority of the pros-ecution
service, the said Recommendation (Rec(2000)19) states in its paragraph 22 that
“the state should take effective measures to guaran-tee that the public
prosecutor may :
a.
give instructions as appropriate to the police with a view to an effective
implementation of crime policy priorities, notably with respect to deciding
which categories of cases should be dealt with first, the means used to
search for evidence, the staff used, the duration of investigations,
information to be given to the Public Prosecution, etc.;
b.
where
different police agencies are available, allocate individual cases to the
agency that it deems best suited to deal with it ;
c.
carry
out evaluations and controls in so far as these are necessary in order to
monitor compliance with its instructions and the law ;
d.
sanction
or promote sanctioning if appropriate to eventual violations.”
Paragraph
9 of the present recommendation mirrors the above-described rules for the
prosecution service in relation the police. States should therefore see that
there is functional and appropriate co-operation between the police and the
prosecution service, including a police perspective. In particular, measures
should be taken to ensure that the police receive clear and precise
instructions from the prosecu-tion. Such measures could be instructions through
legislation or subor-dinate forms of regulations, accompanied by training, even
co-training between the police and the prosecution etc. On the other hand,
co-operation also requires that the police be obliged to inform the superior
investigating authority of progress in policy matters and, in particular, in
specific cases. Reporting back to the prosecution/inves-tigating judge should
preferably be regulated in detail, and equally requires training.
10.
The police shall respect the role of defence lawyers in the criminal justice
process and, whenever appropriate, assist in ensuring the right of access to
legal assistance is effective, in particular with regard to persons deprived of
their liberty.
Commentary
One
of the corner stones in a rule of law society is to provide everyone with equal
access to law and justice. Generally, this also implies the provision of effective
legal assistance to everyone whose rights and interests are threatened, see
Recommendation Rec(2000)21 on the freedom of exercise of the profession of
lawyer. Moreover, paragraph 6 of the European Convention on Human Rights
contains the specific provision that everyone charged with a criminal offence
has the right to defend himself/herself in person or through legal assistance
of his/her own choosing (see also paragraph 48 of the present recommendation).
Paragraph
10 highlights that the police must respect the role of defence lawyers in the
criminal justice process. This implies inter alia that the police shall not
interfere unduly into their work or in any sense intimi-date or harass them.
Moreover, the police shall not associate defence lawyers with their clients.
The assistance of the police with regard to an offender’s right to legal
assistance is particularly needed when the person in question is deprived of
his/her liberty by the police.
11.
The police shall not take the role of prison staff, except in cases of
emergency.
Commentary
Paragraph
11 is complementary to paragraph 6, and has been included to emphasise the
absolute difference of police functions from those of dealing with convicted
and sentenced offenders ; that is, the police in their judicial role are
concerned only with pre-trial procedure. According to Council of Europe
standards concerning the administration and management of probation and prison
systems, for example the Euro-pean Prison Rules (Rec. No. R (87) 3) and the
Recommendation on staff concerned with the implementation of sanctions and
measures (Rec. No. R (97) 12), it is clear that the professions of probation
and prison staff are completely different from those of the police, in
partic-ular in their crime detecting function. Accordingly, personal
qualifica-tions, recruitment procedures and training are all very different.
This rule indicates an important principle for the separation of powers within
the criminal justice system, before and after sentencing. However, it does not
preclude that police can be called for in emer-gency situations.
In
some member states, correctional staff are referred to as “penitentiary or
prison police”. As was mentioned in the commentary to the definition of
the scope of the code, this category of staff are not covered by the
recommendation.
IV.
Organisational structures of the police
A.
General
12.
The police shall be organised with a view to earning public respect as
professional upholders of the law and providers of services to the public.
Commentary
Paragraph
2 embodies a principle, which is a key to the identity of a police organisation
in a democratic society governed by the rule of law. Police work in such a
society succeeds best if it is carried out with the consent of the population
(“earning public respect”). Therefore, it is crucial for the police to
establish a mutual understanding and co-operation with the public. This is true
for most of the functions with which the police are entrusted.
The
organisational structures of the police should preferably be such as to promote
confidence building between the police and the public. One important
aspect in this respect is to develop a high level of profession-alism within
the police. Another aspect is to develop the police organi-sation into a
transparent public service body. In such a way the public may regard the police
more as a service at their disposal than as a force imposed upon them.
13.
The police, when performing police duties in civil society, shall be under the
responsibility of civilian authorities.
Commentary
It
should be recalled that the scope of the present code is limited to police work
in civil society. The judicial side of police work – that is the police being a
component of the criminal justice system – and the public order side of the
police, as well as the public service dimension of police work, and the
integration of the police into civil society, are all elements that are
different from military functions and objectives. Moreover, the legal basis and
powers of the police in a rule of law society, where the focus is on the
respect for civil and political rights of individuals, are also different from
those of the military. Although there are some similarities between police and
military functions and performances, the aforemen-tioned special
characteristics of the police are so important in a demo-cratic society
governed by the rule of law that they should be supported by all means
available. Organisational responsibility is one of the best means in this
respect. A police organisation under civilian responsibility is likely to best
cultivate police professionalism suitable for civil society.
The
organisational police structures – civil or military – differ very much in
Europe. In western and northern Europe the police are primarily civilian. In
central and eastern Europe, several police organisations have a military
structure ; whereas in southern Europe, both models exist, sometimes side by
side in the same country.
Moves
towards community orientation of the police is under way in several member
states. These processes often contain elements of organisational reform. In
central and eastern Europe, this is part of an overall transition processes
into systems of democracy and the rule of law. However, this trend is also
going on in parts of Europe with long-standing democratic systems.
In
the prevailing circumstances and, with full respect to the history and
traditions in member states, paragraph 13 does not go any further than to state
that police functions performed in civil society – whether carried out by
civilian or militarily organised police – should ultimately be under the
responsibility of civilian authorities.
14.
The police and its personnel in uniform shall normally be easily recognisable.
Commentary
Paragraph
14 contains a principle of crucial importance for the tradi-tional police in a
democratic society governed by the rule of law ; it should be easy for the
general public to recognise police stations and the uniformed police. This also
covers equipment used (cars etc.). The para-graph indicates that, unless there
are special reasons, such as the proper exercise of police functions, the
police should be distinctively recognis-able from other bodies. This forms part
of the general requirement of openness and transparency of police organisation,
however, it also serves the purpose of easy access to the police in emergency
situations. (See also paragraph 45.)
15.
The police shall enjoy sufficient operational independence from other
state bodies in carrying out its given police tasks, for which it should be
fully accountable.
Commentary
The
police belong to the executive power ; they cannot be fully inde-pendent of the
executive, from which they receive instructions. However, in carrying out their
given tasks the police must follow the law and are, in addition, entrusted with
discretion. In exercising their pow-ers, the police should not receive any
instructions of a political nature. Operational independence should apply
throughout the organisation. Such independence is an important feature of the
rule of law, as it is aimed at guaranteeing that police operations are being
conducted in accordance with the law, and when interpretation of the law is
needed, this is done in an impartial and professional way. Operational
inde-pendence requires that the police are fully accountable for their
actions/omissions (see also section VI).
16.
Police personnel, at all levels, shall be personally responsible and
accountable for their own actions or omissions or for orders to subordinates.
Commentary
In
a society governed by the rule of law, the law applies equally to all
cit-izens. If this principle is to be meaningful it follows that police
personnel, just as any citizen, must also be personally accountable for their
own actions. Moreover, they should also be fully accountable for orders to
subordinate police personnel, given with hierarchical powers.
17.
The police organisation shall provide for a clear chain of command within the
police. It should always be possible to determine which superior is ultimately
responsible for the acts or omissions of police personnel.
Commentary
Paragraph
17, which is complementary to paragraph 16, concerns the responsibility for
orders within the police. The fact that all police personnel are responsible
for their own actions, does not exclude the fact that superiors may also be
held responsible for having given the order. The superior may be held
responsible in parallel with the imple-menting official, or alone in
cases where the latter followed orders in good faith. (See also paragraph 38.)
Through an established chain of command, ultimate responsibility for police
action can be traced in an effective way.
18.
The police shall be organised in a way that promotes good police/public relations
and, where appropriate, effective co-operation with other agencies, local
communities, non-governmental organisa-tions and other representatives of the
public, including ethnic minority groups.
Commentary
Paragraph
18 recommends states to organise their police based on the idea of the police
as being an integrated part of society. The police may increase its efficiency
if well-functioning relationships are estab-lished between them and other
public bodies on different levels and, in particular, between the police and
the wider public, the latter often being represented by groups or organisations
of a non-governmental character.
The
recommendation leaves open how to implement this principle. Different models
exist in Europe of how the police co-operate with other agencies and bring the
police closer to the community. Decentralisation of the police organisation is
generally considered as an important means. However, this is often closely
related to the extent to which local democ-racy is developed in a country.
“Community policing” was initially developed in the United Kingdom as a way to
involve the whole com-munity in crime prevention in particular, but also in
detecting crime. Many European countries have followed this model.
Urban
insecurity in the bigger cities in Europe is an example of a multi-faceted
problem, often related to phenomena such as poverty, racism and juvenile
delinquency, which cannot be effectively combated solely by police action, but
which requires a wider society approach with many players involved.
19.
Police organisations shall be ready to give objective information on their
activities to the public, without disclosing confidential information.
Professional guidelines for media contacts shall be established.
Commentary
The
police should be as transparent as possible towards the public. A readiness by
the police to disclose information on its activities is crucial for securing
public confidence. At the same time, the police must respect
confidentiality for a number of reasons; integrity of persons, crime
investigation reasons, the principle of the presumption of innocence, security
reasons etc. Obviously, even if situations like those described are well
regulated in most states, there will always be a margin of apprecia-tion left
to the police in striking the balance between the two interests. In addition,
communication between the police and the media can be difficult, and may
not always be well prepared from the police side. Therefore, it is recommended
that the police establish guidelines for their media contacts. It is noted that
in some member states media relations are being dealt with in departments
especially tasked for such contacts. A key principle should always be that of
objectivity.
20.
The police organisation shall contain efficient measures to ensure the
integrity and proper performance of police staff, in particular, to guarantee
respect for individuals’ fundamental rights and freedoms as enshrined, notably
in the European Convention on Human Rights.
Commentary
The
concern in paragraph 20 is to enhance a police culture which in recognising its
responsibility for upholding individuals’ fundamental rights and freedoms,
works to safeguard its own professional integrity through internal
accountability measures. This could be realised in dif-ferent ways. The
leadership and management of the police certainly play an important role in
establishing an ethos, which upholds individual rights and the principle of
non-discrimination, both within the organisa-tion and in dealings with the
public. Other means are an open commu-nication between staff (horizontal as
well as vertical), standard setting (professional codes of conduct) and
monitoring. It is clear that recruit-ment and training play an important role
in this respect. (External accountability is dealt with in section VI.)
21.
Effective measures to prevent and combat police corruption shall be established
in the police organisation at all levels.
Commentary
There
is no common international definition of corruption. The qualifi-cation
of what should be considered as corruption varies from country to country. The
Criminal Law Convention on Corruption adopted by the Council of Europe in 1999,
does not provide a uniform definition of cor-ruption. However, it aims at
developing common standards concerning certain corruption offences such as
bribery (active and passive).
The
term “police corruption” is often used to describe a great variety of
activities, such as bribery, fabrication or destruction of evidence,
favouritism, nepotism, etc. What seems to be a common understanding of police
corruption is that it necessarily involves an abuse of position, an abuse of
being a police official. Moreover, it is widely recognised that
corruption should be regarded as a constant threat to the integrity of the
police and its proper performance under the rule of law in all member states.
Paragraph
21 aims at encouraging member states to put in place effective internal
measures to combat corruption within their police organisations. This could include
measures to define corrupt behaviour, as far as possible ; that the
causes for corruption in the police be studied, and that organisational
structures and control mechanisms to combat corruption be established.
It
should be mentioned that corruption has only in recent years become a focal
point on the international agenda. Nowadays, member states consider corruption
a real threat to democracy, the rule of law and the protection of human rights,
and, as a result, the Council of Europe Committee of Ministers, being the
pre-eminent European institution to defend these rights, has developed a series
of instruments for the fight against corruption ; the Resolution on the
twenty guiding principles for the fight against corruption ((97) 24) and
Recommendations on the status of public officials in Europe (No. R (2000)
6) and on codes of conduct for public officials (No. R (2000) 10), which
all apply to the police, and the Criminal Law Convention (ETS No. 173) as well
as the Civil Law Convention on Corruption (ETS No. 174), adopted in 1999.
Moreover, the Group of States against Corruption (GRECO) was established in
1998 to monitor corruption in member states. The Council of Europe is also
performing other programmes with the overall objec-tive to the fight against
corruption, inter alia in the police sector, which are open to member states.
B.
Qualifications, recruitment and retention of police personnel
22.
Police personnel, at any level of entry, shall be recruited on the basis of
their personal qualifications and experience, which shall be appropriate
for the objectives of the police.
Commentary
In
order to select appropriate candidates for the police, the selection process
should be based only on objective criteria. This rule deals with personal
qualifications, which may be divided into personal skills and experience.
The personal abilities and aptitudes of the applicant, some of which are described
in paragraph 23 belong to the former category. The latter category – personal
experience – covers both educational background and life experience, often the
previous working experience of candidates. Personal qualifications should
meet the objectives of the police, see paragraph 1. The same basic principles
should apply to all ranks although the qualifications may differ.
Appointments to the police for political reasons should be avoided, in
particular to posts of an operational character.
23.
Police personnel shall be able to demonstrate sound judgment, an open attitude,
maturity, fairness, communication skills and, where appropriate, leadership and
management skills. Moreover, they shall possess a good understanding of social,
cultural and community issues.
Commentary
The
listed examples of personal skills are important for the operational staff of a
police service in a democracy. The list is not exhaustive. The ultimate goal is
to have police personnel with a broad understanding of the society they serve
and whose behaviour is appropriate for fulfilling their tasks in
accordance with the objectives of the police.
24.
Persons who have been convicted for serious crimes shall be disqualified
from police work.
Commentary
Paragraph
24 sets a minimum standard that should apply to candidates, trainees and fully
integrated police personnel. However, it is open to individual member states to
decide what degree of tolerance should be given to crimes that fall short of
the category of “serious crimes”. Furthermore, although the existence of a
conviction should be inter-preted as a minimum standard before candidates or
personnel are disqualified from police work, this does not exclude the
possibility of can-didates and personnel being disqualified if there is a
well-substantiated suspicion of criminal activity against them.
25.
Recruitment procedures shall be based on objective and nondiscriminatory
grounds, following the necessary screening of candidates. In addition, the
policy shall aim at recruiting men and women from various sections of society,
including ethnic minority groups, with the overall objective of making police
personnel reflect the society they serve.
Commentary
In
order to be as beneficial as possible to the police, recruitment
proce-dures should be carried out in an objective and non-discriminatory way.
Some means for achieving this are described in paragraph 22 and its commentary.
Access to the police in a non-discriminatory way also has support in the
European Convention on Human Rights (Protocol No. 12) as well as in the
European Social Charter. The case-law of these instru-ments has in this respect
tended to focus on the following grounds : gender, political opinion, religion,
race, national and ethnic origin.
The
term “necessary screening” of candidates indicates that the recruit-ing
authority should have an ex-officio and active research approach when
scrutinising the background of applicants. This requirement is more demanding
in countries where the public administration, including the criminal justice
system, is not so well developed or in countries which are suffering from
catastrophes and war, than in countries where public records, such as criminal
records, are accurate and easy to access.
It
is a fact that women generally are grossly under-represented in the police in
all member states, and that this is even more apparent in the higher ranks and
managerial positions than in the basic grades. A similar situation can
generally be described for minority groups, including ethnic minority groups,
in all member states.
It
is appreciated that the relations between the police and the public will
benefit from the composition of the police reflecting that of
society. This will reinforce the efficiency of the police and promote
their public support. As a consequence, every effort shall be made to this
effect.
The
second sentence of the paragraph implies that recruitment policies shall
encourage a representation in the police, which corresponds to that of the
society. Such a policy should be made known to the public and implemented at a
reasonable pace and take full account of the requirements stated in paragraph
22.
C.
Training of police personnel
26.
Police training, which shall be based on the fundamental values of democracy,
the rule of law and the protection of human rights, shall be developed in
accordance with the objectives of the police.
Commentary
The
police play a prominent role as a defender of the society which they serve and
should preferably share the same fundamental values as the democratic state
itself. The fostering of democratic values in the police is therefore crucial
and training is one of the most important means in furthering such values among
personnel. As a result, paragraph 26 brings in the fundamental values of all
member states of the Council of Europe as an integrated part of the training of
the police.
Ethical
and human rights aspects of police work should be introduced preferably in a
problem-oriented context, which focuses on practical police work and gives a
solid understanding of the underlying principles. Although member states pay
considerable attention to human rights training, there is still a great need to
encourage this part of police training, in particular to develop training
methods and material. The Council of Europe is active in this area and several
handbooks containing practical guidelines on human rights in police training
have been developed on an expert level.
27.
General police training shall be as open as possible towards society.
Commentary
The
principle of openness and transparency of a police organisation, must also be
reflected in the training of its staff. A police organisation which aims
to carry out tasks with the support of the public, must have its personnel
trained in an environment which is as close as possible to social realities.
This would include the physical environment (place and equipment) as well as
the intellectual input to the training.
Police
training in closed and remote places, involving students living in barracks,
etc., may be necessary for certain types of specialist training. However,
general training of police should, wherever possible, be carried out in
“normalised” conditions. Another strong implication of openness is that
external training, involving institutions other than the police, should be
offered, in addition to internal training.
Police
openness towards society is also beneficial for the dynamics of training.
In particular, with problem-oriented training, states of affairs in society
must be faithfully reproduced for the training to be effective.
28.
General initial training should preferably be followed by in-service training
at regular intervals, and specialist, management and leadership training, when
it is required.
Commentary
Paragraph
28 contains the principle that police personnel, as a rule, initially, shall
undergo general training and that initial training should be followed, if need
be, by more specialised training. Such a system will help to create a staff
familiar with the same basic values of policing and capable of carrying out a
variety of tasks. The approach of training police personnel as generalists
initially does not rule out the fact that police personnel in addition need
special training relating to specific tasks and responsibilities (for example,
according to their ranks). The paragraph also underlines the need to complement
initial training with in-service training at regular intervals.
Police
training is closely related to the system of recruitment to the police. There
are states where all police personnel, as a rule, are recruited as basic grades
(United Kingdom model) and systems where basic grade staff and managerial staff
could be recruited through separate proceed-ings (continental Europe), as a
requirement for being recruited to the latter category is often a university
degree. The principles in this rule apply to both these systems.
29.
Practical training on the use of force and limits with regard to established
human rights principles, notably the European Convention on Human Rights and
its case-law, shall be included in police training at all levels.
Commentary
The
practical aspects on the use of force by the police, in particular
vis-à-vis individuals or groups of individuals are of such crucial
impor-tance for the police in a rule of law society, that it has been
highlighted by this separate pararaph. Practical training would imply that it
should be as close to reality as possible.
30.
Police training shall take full account of the need to challenge and combat
racism and xenophobia.
Commentary
Paragraph
30 draws attention to the problem of racism and xenophobia which exists in many
European countries, and is an important factor in urban insecurity. Police
training should, whenever necessary, challenge any racist or xenophobic
attitudes within the police organisation, and also emphasise the importance of
effective police action against crimes which are based on race hatred and
target ethnic minorities.
D.
Rights of police personnel
31.
Police staff shall as a rule enjoy the same civil and political rights as other
citizens. Restrictions to these rights may only be made when they are necessary
for the exercise of the functions of the police in a democratic society, in
accordance with the law, and in conformity with the European Convention on
Human Rights.
Commentary
The
paragraphs of this section are guided by the overall principle that police in
an open democratic society should have the same rights as other citizens, to
the fullest possible extent. This is an important element of the rule of law
and of making the police organisation part of the society it serves.
The
rights covered by the European Convention on Human Rights (civil and political
rights) apply fully to all citizens in member states, including those employed
by the police. Some of these rights are absolute in their character, whereas
others may be derogated under special conditions. In this respect, reference is
made to the extensive case-law developed by the European Court of Human Rights.
Paragraph
31 emphasises that member states shall not deprive their police staff of any
civil and political rights, unless there are legitimate reasons directly
connected to the proper performance of police duties in a democratic state
governed by the rule of law.
32.
Police staff shall enjoy social and economic rights, as public servants, to the
fullest extent possible. In particular, staff shall have the right to organise
or to participate in representative organisations, to receive an appropriate
remuneration and social security, and to be provided with special health and
security measures; taking into account the particular character of police work.
Commentary
Paragraph
32 refers to social and economic rights, which are covered by the European
Social Charter, a complementary instrument to the European Convention on Human
Rights for these particular rights.
Police
personnel have the status of public servants (or civil servants) in several
member states. As this is not the case in all member states, it is recommended
that police personnel, as far as possible, should enjoy social and economic
rights as public servants. Such rights may be limited because of the special
character of police work. The social and economic rights listed in the
paragraph highlight a few crucial rights but the list is not exhaustive.
The
right to “organise” (that is, to join trade unions) has in the European Social
Charter (Article 5) a special interpretation when it comes to the police, as
the Charter in this respect leaves a margin of appreciation to individual
states. However, the case-law under the Charter has estab-lished that, even if
there is no unlimited right for the police to “organ-ise”, it would be a
violation of the Charter to forbid police officers to set up their own
representative associations. National law may provide for police-only
associations, which is the case in some member states. However, a complete ban
on the police’s right to strike is not contradic-tory to the Charter and its
case-law, and the present recommendation does not go any further.
The
rights to appropriate remuneration and social security, as well as special
health and security measures have been highlighted in the recommendation
because of the special character of police work. This refers, for example, to
the unpredictable tasks that police personnel are facing every day, to the
risks and dangers inherent in police work and to the irregular working hours.
Moreover, these rights of police personnel are also crucial conditions for
making the police profession attractive. This aspect is extremely important,
considering the need for highly qualified staff to be recruited to, and
retained within, the police. Further-more, a well-remunerated police personnel
is more likely not to be involved in undesirable activities, such as
corruption.
33.
Disciplinary measures brought against police staff shall be subject to review
by an independent body or a court.
Commentary
Disciplinary
sanctions against police personnel are normally an internal police matter and
are often of a minor nature. However, disciplinary measures may also be severe
and sometimes it is difficult to draw the line between the criminal and
the disciplinary aspects of a case. Furthermore, criminal proceedings and
sanctions may be followed by disciplinary measures.
The
possibility of having disciplinary decisions challenged by an independent body,
preferably a court of law has two main advantages. First, it would provide
police personnel with a safeguard against arbitrary decisions. Second, it opens
up the police to society (transparency), in particular, given that court
hearings and judgments/decisions of courts are normally made public.
Another,
more legalistic aspect is that if disciplinary measures were subject to review
by a court of law, the right to a fair trial, according to Article 6 of the
European Convention on Human Rights, which in certain situations applies also
to disciplinary matters, would always be safeguarded.
34.
Public authorities shall support police personnel who are subject to
ill-founded accusations concerning their duties.
Commentary
Police
personnel, as a result of their particular tasks and close contacts with the
public, will sometimes be the subject of accusations by the public concerning
their performance. If such accusations are ill-founded (following impartial
investigations/proceedings) police personnel should be entitled to the
necessary support from their authorities, in particular, concerning personal
assistance. (Police complaints systems are dealt with in section VI.) Paragraph
34 does not exclude the fact that support to police personnel may be required
in other situations, such as during internal proceedings against staff.
V.
Guidelines for police action/intervention
Commentary
This
part of the recommendation deals to a large extent with guidelines for
operational police personnel in their daily activities. During the preparatory
work for the recommendation, reference was sometimes made to “internal ethics”
for this part of the text as opposed to the “broader ethics of the police” for
the sections which concern the frame-work for police in a democratic society,
their place in the criminal justice system, organisational structures, etc.
The
guidelines are divided into two parts, one dealing with general principles of
democratic policing which apply to almost any situation, and the other devoted
to principles for specific situations which provide particular
difficulties in terms of ethics and human rights in all member states.
A.
Guidelines for police action/intervention: general principles
35.
The police and all police operations must respect everyone’s right to life.
Commentary
Paragraph
35, which is based on Article 2 of the European Convention on Human Rights,
implies that the police and their operations shall not engage in intentional
killings. Considering Article 2 of the European Convention on Human Rights in
the light of Protocol No. 6 to the same Convention, concerning the abolition of
the death penalty, it should also be excluded that the police be used for the
execution of capital punishment.
Another
factor is that police actions may lead to the loss of life as a result of the
use of force by the police. That may not necessarily violate the respect for
the right to life, provided that certain conditions are fulfilled.
Article
2 of the European Convention on Human Rights, which contains the prohibition of
intentional deprivation of life, requires that everyone’s life shall be
protected by the law. The second paragraph of Article 2 reads:
“Deprivation
of life shall not be regarded as inflicted in contraven-tion of this
article when it results from the use of force which is no more than absolutely
necessary :
a.
in
defence of any person from unlawful violence;
b.
in
order to effect a lawful arrest or to prevent the escape of a person lawfully
detained;
c.
in
action lawfully taken for the purpose of quelling a riot or insurrection.”
The
European Court of Human Rights (see, for example McCann and others v. the
United Kingdom, European Court of Human Rights, Series A, No.324-A) has held
that these exceptions primarily describe situa-tions where it is permitted to
use force which may result, as an unin-tended outcome, in the deprivation of
life. The use of force may be no more than absolutely necessary for the
achievement of one of the pur-poses set out in a, b and c. “Absolutely
necessary” implies, according to the European Court of Human Rights, in
particular, that the force used must be strictly proportionate to the achievements
of the aims men-tioned (a, b and c).
The
training of police personnel in this respect is of utmost importance.
36.
The police shall not inflict, instigate or tolerate any act of torture or
inhuman or degrading treatment or punishment under any circumstances.
Commentary
The
prohibition of torture or inhuman or degrading treatment or pun-ishment
contained in paragraph 36, derives from Article 3 of the European Convention on
Human Rights. The European Court of Human Rights clearly and systematically affirms
that Article 3 of the European Convention enshrines one of the fundamental
values of democratic societies and that the prohibition is absolute. That means
that under no circumstances can it be admissible for the police to
inflict, instigate or tolerate any form of torture for any reason. The
word “tolerate” implies that the police should even have an obligation to do
their utmost to hinder such treatment, which also follows from the overall
objectives of the police, see paragraphs 1 and 38 of the code.
In
addition to the fact that torture, inhuman or degrading treatment or punishment
is a serious offence against human dignity and a violation of human rights,
such measures, when used for the purpose of obtaining a confession or similar
information, may, and are even likely to, lead to incorrect information from
the person who is subject to torture or similar methods. Thus, there is no
rational justification for using such methods in a state governed by the
rule of law.
It
is clear that both physical and mental suffering are covered by the
prohibition. For a more detailed analyses on what kinds of behaviour are
covered by torture, inhuman or degrading treatment, reference is made to the
case-law of the European Court of Human Rights as well as to the principles
developed by the European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT). These bodies have provided a rich
source of guidance which must govern police action and be used in the training
of police personnel.
It
goes without saying that a police service that uses torture or inhuman or
degrading treatment or punishment against the public are unlikely to earn the
respect or confidence of the public.
37.
The police may use force only when strictly necessary and only to the extent
required to obtain a legitimate objective.
Commentary
Paragraph
37 recognises the case-law of the European Court of Human Rights with regard to
Article 2 of the European Convention on Human Rights, see the commentary to
paragraph 34. However, it should be noted that the present rule is applicable
to all kinds of situations where the police are entitled to use force.
As
a starting point, there must always be a legal basis for police opera-tions
(paragraph 3 of the code), including the use of force. Arbitrary use of force
can never be accepted. Moreover, pararaph 37 indicates that the use of force by
the police must always be considered as an excep-tional measure and, when there
is need for it, no more force than is absolutely necessary may be used. This
implies that the force used should be proportionate to the legitimate aim to be
achieved through the measure of force. There must, accordingly, be a proper
balance between the using of force and the situation in which the force is used.
In practical terms, this means, for example, that no physical force should be
used at all, unless strictly necessary ; that weapons should not be used,
unless less strictly necessary ; and, if lethal weapons are deemed necessary,
they should not be used beyond what is considered strictly necessary – shoot to
warn before shoot to wound and do not wound more than is strictly necessary,
etc.
Normally,
national legislation and regulations should contain provisions on the use of
force based on the principles of necessity and proportion-ality. However, the
practical approach to the problem in a given situation is more difficult
as the use of force, according to the above principles, places a heavy burden
on the police and emphasises the need for police personnel not only to be
physically fit and equipped but also, to a large extent, to have
well-developed psychological skills. The importance of recruitment of suitable
personnel to the police, as well as their training cannot be under estimated in
this respect, (see also paragraphs 23 and 29).
38.
Police must always verify the lawfulness of their intended actions.
Commentary
It
is a basic requirement that the police, in a society governed by the rule of
law, conduct only lawful activities. It follows from paragraph 3, that the
lawfulness test is not limited only to national law, but includes international
human rights standards.
Paragraph
38 gives the police an ex-officio obligation to control the legality of
their action before and during their interventions. This applies to the police
as an organisation as well as to the individual police official. A system
of checks and balances within the police, as well as training, are important
means of ensuring that such verification becomes systematic.
39.
Police personnel shall carry out orders properly issued by their superiors, but
they shall have a duty to refrain from carrying out orders which are clearly
illegal and to report such orders, without fear of any form of sanction.
Commentary
Since
police personnel, in accordance with pararaph 16, should be held personally
liable for their own actions, there must be an opportunity for them to refuse
to carry out orders which are illegal (contrary to the law). The wording
“clearly illegal”, has been chosen to avoid incurring police disobedience in
situations where the legality of an order is unclear.
With
full respect to the necessary hierarchical structures in the police, the
overall idea of paragraph 39 is to avoid the individual’s responsibility for
flagrant illegal activities and human rights violations being “covered
up” by hierarchical structures. The operational independence of the police from
other state bodies (paragraph 15), works in the same direction. The duty with
regard to illegal orders should also contain an obligation to report such
orders. The reporting of illegal orders shall have no negative repercussion or
sanctions on the reporting staff.
40.
The police shall carry out their tasks in a fair manner, guided in particular,
by the principles of impartiality and non-discrimination.
Commentary
The
fairness requirement is an overall and open-ended quality, which comprises the
principles of impartiality and non-discrimination as well as other qualities.
The police act with fairness when they show full respect for the positions and
rights of each individual that are subject to their police duties. Fairness
should apply to all aspects of police work, but it is particularly emphasised
with regard to the public.
The
impartiality requirement implies, for example, that the police should act with
integrity and with a view to avoiding taking sides in a conflict which is
under scrutiny. In the case of an offence, the police must take no position on
the question of guilt (see also paragraph 47). Furthermore, impartiality
requires that police personnel abstain from any activity outside the police
which is likely to interfere with the impartial discharge of their police
duties or which may give rise to the impression amongst the public that this is
the case.
The
general principle of non-discrimination and equality is a fundamental element
of international human rights law. With the adoption of Protocol No. 12 to the
European Convention on Human Rights, there is a general prohibition on
discrimination contained in that instrument. The scope of protection against
discrimination concerns rights under the European Convention on Human Rights, individual
rights directly under national law or via obligations to public authorities,
and acts by public authorities in their exercise of discretionary powers or any
other act of such a body, for example the police.
Paragraph
40 does not list particular grounds of discrimination. However, there is no
intention to deviate from what is contained in the European Convention on Human
Rights, which mentions a non-exhaustive list to which further grounds could be
added. Examples of grounds of discrimination are gender, race, colour,
language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status, physical
or mental disability, sexual orientation or age.
Finally,
it should be mentioned that in certain cases, unequal treatment, which has an
objective and reasonable justification, may not amount to discrimination,
according to the European Convention on Human Rights and its case-law.
41.
The police shall only interfere with individual’s right to privacy when
strictly necessary and only to the extent required to obtain a legitimate
objective.
Commentary
An
individual’s “right to privacy” would include the rights covered by Article 8
of the European Convention on Human Rights : private life, family life, home
and correspondence. As a starting point, there must always be a legal basis for
police operations (paragraph 3 of the code), including that of interference
with people’s privacy. Arbitrary inter-ference can never be acceptable. Moreover,
the present rule indicates that the interference in people’s privacy must
always be considered as an exceptional measure and, even when justified,
should involve no more interference than is absolutely necessary.
42.
The collection, storage, and use of personal data by the police shall be
carried out in accordance with international data protection principles and, in
particular, be limited to the extent necessary for the performance of lawful,
legitimate and specific purposes.
Commentary
The
use of new information technologies largely facilitates police action against
different forms of criminality. The registration and the analysis of personal
data, in particular, allows the police to cross-check information and thus to
expose networks whose existence would otherewise remain obscure without resort
to these tools. However, the uncontrolled use of personal data may constitute
violations of the right to privacy of the individual concerned. In order to
avoid abuse at the stages of collection, storage and use of personal data, such
police activities must be guided by principles of data protection. In this
respect, the principles expressed in paragraph 42 should be considered in the
light of Recommenda-tion No. R (87) 15 of the Council of Europe Committee of Ministers
regulating the use of personal data in the police sector.
43.
The police, in carrying out their activities, shall always bear in mind
everyone’s fundamental rights, such as freedom of thought, conscience,
religion, expression, peaceful assembly, movement and the peaceful enjoyment of
possessions.
Commentary
The
rights referred to in paragraph 43 are a recapitulation of rights pro-vided for
in the European Convention on Human Rights (Articles 9, 10 and 11 of the
Convention, Article 1 of its Protocol No. 1 and Article 2 of Protocol No.4 to
the same Convention) , which are essential for the effective functioning of an
open democratic society, but which have not been dealt with elsewhere in the
recommendation.
The
police play a major part in safeguarding these rights – without which democracy
becomes an empty notion without any basis in reality – either directly, through
safeguarding democratic arrangements, or indi-rectly, through their general
responsibility for upholding the rule of law.
44.
Police personnel shall act with integrity and respect towards the public and
with particular consideration for the situation of individuals belonging to
especially vulnerable groups.
Commentary
The
police service is judged by the public, to a large extent, how police personnel
act. Correct behaviour of individual police officials is, there-fore, of
ultimate importance for the credibility of the police. In order to earn the
respect of the public, it is not sufficient only to act within the law, but
to apply the law with integrity and respect towards the public ; applying the
law with a degree of common sense and never to forget the “public service”
element which is a necessary dimension in police work.
Police
personnel act with integrity and respect towards the public when they are
professional, impartial, honest, conscientious, fair and just, polit-ically
neutral and courteous. In addition, the police should acknowledge that the
public consists of individuals with individual needs and demands. Vulnerable
groups in society call for extra consideration by the police.
45.
Police personnel shall during intervention normally be in a position to give
evidence of their police status and professional identity.
Commentary
Paragraph
45, which is closely linked to paragraph 14, has two main purposes. Firstly,
the intervening police personnel shall as a rule always be in a position to
give evidence that they belong to the police. Secondly, they shall normally
also be in a position to identify them-selves as an individual member of the
police (“professional identity”). The requirement that police personnel
normally should give evidence of their professional identity before, during or
after intervention is closely linked to personal police responsibility for
action or omission (paragraph 16). Without the possibility of identifying the
individual police man/woman, personal accountability, seen from the perspective
of the public, becomes an empty notion. It is clear that the implemen-tation of
this regulation must be balanced between the public interest and the safety of
police personnel on a case by case basis. It should be stressed that the
identification of a member of the police does not necessarily imply that
his/her name be revealed.
46.
Police personnel shall oppose all forms of corruption within the police. They
shall inform superiors and other appropriate bodies of corruption within the
police.
Commentary
Paragraph
46, which concerns the conduct of police personnel, is complementary to that of
paragraph 21, which deals with organisational structures in the fight
against corruption. The paragraph places a posi-tive obligation upon the police
official to avoid corrupt behaviour as an individual and discourage it
among colleagues. Police officials shall, in particular, carry out their
duties in accordance with the law, in an honest and impartial way and should
not allow their private interests to conflict with their position in the
police. To this end, police officials shall always be on the alert for
any actual or potential conflicts of interest and take steps to avoid
such conflicts. They shall report to their superiors or to other
appropriate authorities if they become aware of corrupt behaviour within the
police.
It
should be noted that Council of Europe Committee of Ministers Recommendation
No. R (2000) 10 on codes of conduct for public offi-cials (drafted by the
Multidisciplinary Group on Corruption, GMC) is applicable to police
organisations and their personnel.
B.
Guidelines for police action/intervention : specific situations
1.
Police investigation
47.
Police investigations shall, as a minimum, be based upon reasonable suspicion
of an actual or possible offence or crime.
Commentary
In
order to avoid arbitrary police investigations, a minimum requirement should be
fulfilled before the police initiate any such investigation. There should
at least be reasonable (and legitimate) suspicion of an offence or crime, that
is the suspicion must be justified by some objective criteria.
48.
The police must follow the principles that everyone charged with a criminal
offence shall be considered innocent until found guilty by a court, and that
everyone charged with a criminal offence has certain rights, in particular, the
right to be informed promptly of the accusation against him/her, and to prepare
his/her defence either in person, or through legal assistance of his/her own
choosing.
Commentary
The
principle of the presumption of innocence, contained in Article 6 of the
European Convention on Human Rights, is one of the most impor-tant rights of
individuals in the criminal justice process. The police, often the first
link of the chain in this process, have a particularly difficult task as
they must, in an objective manner, investigate a case and no matter how
overwhelming the evidence is against a suspect, must respect the presumption of
innocence. With regard to relations between the police and the public, in
particular the media, the problem becomes even more accentuated (see also
paragraph 19).
The
list of certain additional minimum rights of everyone charged with a criminal
offence, also drawn from Article 6 of the European Convention on Human Rights,
is also extremely important for the police to bear in mind, as these rights
should be provided for from the start of the crimi-nal justice process ; that
is to say, often during the police investigation.
49.
Police investigations shall be objective and fair. They shall be sensitive and
adaptable to the special needs of persons, such as children, juveniles, women,
minorities, including ethnic minorities and vulnerable persons.
Commentary
Police
work should always be guided by objectivity and fairness. This is particularly
important in police investigations. The objectivity required implies that the
police must carry out an investigation impartially, that is, they should base
an investigation on all relevant circumstances, facts and evidence, that work
both for and against their suspicions. Objectivity is also a criteria for the
fairness requirement, which, in addition, requires that the investigation
procedure, including the means used, is such as to provide for an environment
that lends itself to a “just” process, where the individual’s fundamental
rights are respected.
The
fairness requirement for police investigations also means that con-sideration
must be taken of an individual’s right to participate fully. The investigation
must, for example, be adapted to take account of the physical and mental
capacities and cultural differences of those involved. Investigations
concerning children, juveniles, women and individuals belonging to minority
groups, including ethnic minorities are particularly important in this respect.
The investigation should be thorough, with as limited a risk of disturbance to
those subject to the investigation as possible. Upholding these measures
sustains “fair police process”, which constitutes the preparatory basis for a
“fair trial”.
50.
Guidelines for the proper conduct and integrity of police interviews shall be
established, bearing in mind paragraph 48. They shall, in particular, provide
for a fair interview during which those interviewed are made aware of the
reasons for the interview as well as other relevant information. Systematic
records of police interviews shall be kept.
Commentary
This
rule, which generally applies to police interviews, originates in statements
with regard to the interrogation process in custody made by the European
Committee for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT), as contained in its 2nd General Report (1992) :
“…the
CPT considers that clear rules or guidelines should exist on the way in which
police interviews are to be conducted. They should address inter alia the
following matters : the informing of the detainee of the identity (name and/or
number) of those present at the interview; the permissible length of an
interview; rest periods between interviews and breaks during an interview;
places in which interviews may take place; whether the detainee may be required
to stand while being questioned; the interviewing of persons who are under the
influence of drugs, alcohol, etc. It should also be required that a
record be systematically kept of the time at which interviews start and end, of
any request made by a detainee during an interview, and of the persons present
during each interview.
The
CPT would add that the electronic recording of police inter-views is another
useful safeguard against the ill-treatment of detainees (as well as having significant
advantages for the police).”
Paragraph
50, is applicable to all police interviews, regardless of whether those subject
to the interview are in custody or not.
51.
The police shall be aware of the special needs of witnesses and shall be guided
by rules for their protection and support during an investigation, in
particular, where intimidation of witnesses is at risk.
Commentary
Police
personnel must be competent in handling the early stages of an investigation,
in particular, contacts with those implicated in a crime. The proper protection
of witnesses is necessary for their safety, which is a crucial condition for
them to give evidence and thus for the outcome of the investigation. When
intimidated witnesses are afraid of the possible consequences of giving
evidence, investigative techniques must be flex-ible, and take this into
account. The problem of intimidated witnesses is particularly critical in
situations, such as those related to terrorism, to organised crime, to
drug-related crime and to violence within the family. Moreover, in cases where
the witnesses are also victims of the crime, the handling of witnesses becomes
even more complex.
Paragraph
51 underlines how important it is for the police to be aware of the special
needs of witnesses in different situations, and their pro-tection. Not only
does this call for special training of police personnel, but guidelines are
also necessary to determine the proper handling of witnesses by the police. In
this respect reference is made to the exten-sive work already carried out by
the Council of Europe concerning witness and victim protection (Committee of
Ministers’ Recommenda-tions No. R (85) 4 on the violence in the family, No. R
(85) 11 on the position of the victim in the framework of criminal law and
procedure, No. R ((87) 21 on assistance to victims and prevention of
victimisation, No. (91) 11 on sexual exploitation, pornography and prostitution
of, and trafficking in children and young adults, No. R (96) 8 on crime
policy in Europe in a time of change, and No. R (97) 13 on intimidation of
witnesses and the rights of the defence).
52.
Police shall provide the necessary support, assistance and information to
victims of crime, without discrimination.
Commentary
Paragraph
52 summarises the police duties of providing assistance and information for
victims of crime as stated in Recommendation No. R (85) 11 on the position of
the victim in criminal law and procedure. In addi-tion, the paragraph places an
obligation on the police to provide the necessary support for victims, which
implies that there is a readiness and capacity within the police to provide
such support either directly or through other agencies and organisations.
53.
The police shall provide interpretation/translation where necessary throughout
the police investigation.
Commentary
Paragraph
53 of the code complements Article 5.2 of the European Convention on Human
Rights, which gives everyone who is arrested the right to be informed of the
reasons for the arrest, and the charge against them, in a language which they
understand.
2.
Arrest/deprivation of liberty by the police
54.
Deprivation of liberty of persons shall be as limited as possible and conducted
with regard to the dignity, vulnerability and personal needs of each detainee.
A custody record shall be kept systematically for each detainee.
Commentary
Deprivation
of liberty must be regarded as an exceptional measure, which may never be used
unless absolutely necessary and must be limited in time. As with all police
operations, this measure must always be lawful. Paragraph 54 emphasises that
with every arrest/deprivation of liberty, the individual needs of the person
concerned must be fully considered.
In
accordance with the statement of the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment, in its 2nd General
Report (1992), a comprehensive custody record should be kept for each arrested
person/detainee:
“The
CPT considers that the fundamental safeguards granted to persons in police
custody would be reinforced (and the work of police officers quite
possibly facilitated) if a single and comprehen-sive custody record were to
exist for each person detained, on which would be recorded all aspects of his
custody and action taken regarding them (when deprived of liberty and reasons
for that measure; when told of rights; signs of injury, mental illness, etc;
when next of kin/consulate and lawyer contacted and when visited by them ; when
offered food ; when interrogated ; when transferred or released, etc.). For
various matters (for example, items in the person’s possession, the fact of
being told of one’s rights and of invoking or waiving them), the signature of
the detainee should be obtained and, if necessary, the absence of a signature
explained. Further, the detainee’s lawyer should have access to such a custody
record.”
55.
The police shall, to the extent possible according to domestic law, promptly
inform persons deprived of their liberty of the reasons for the deprivation of
their liberty and of any charge against them, and shall also without delay
inform persons deprived of their liberty of the procedure applicable to their
case.
Commentary
Paragraph
55 brings to the attention the right provided for in Article 5.2 of the
European Convention on Human Rights (“[e]veryone who is arrested shall be
informed promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.”) and a statement by the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
in its 2nd General Report (1992), that persons “taken into police custody
should be expressly informed without delay of all their rights” (including
those contained in paragraph 56). To this has been added that persons deprived
of their liberty should also be informed of the procedure of their case. (The
wording “to the extent possible according to domestic law” is used as this
information is sometimes provided by authorities other than the police, such as
the public prosecution service.)
56.
The police shall provide for the safety, health, hygiene and appro-priate
nourishment of persons in the course of their custody. Police cells shall be of
a reasonable size, have adequate lighting and ventilation and be equipped with
suitable means of rest.
Commentary
Paragraph
56 gives the police full responsibility for the standard of the physical
environment of persons deprived of their liberty, who are kept in police
facilities. The paragraph implies that the police have an obliga-tion to care
actively for the safety of persons kept in their custody. They should take full
responsibility for safeguarding those in their custody from harm, originating
either from outside or inside the custody, includ-ing self-inflicted harm
by the detainee. This would, for example, involve the separation of dangerous
persons. Furthermore, deterioration in the health of the person deprived of
liberty – mental as well as physical – should, as far as possible, be prevented
and medical care provided if necessary. This may also imply that instructions
of doctors or other competent medical personnel must be followed. The police
should also provide for appropriate hygiene, including toilet facilities, and
food.
Police
cells should be of a reasonable size, considering the number of persons
accommodated. Furthermore, there should be “adequate light-ing”, preferably
natural day light as well as artificial light. “Adequate ventilation”
implies that fresh air should be available at an appropriate temperature.
Suitable means of rest, bed or chair, should be provided for all persons kept
in police custody. (Reference is also made to further standards established by
the European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment.)
57.
Persons deprived of their liberty by the police shall have the right to have
the deprivation of their liberty notified to a third party of their
choice, to have access to legal assistance and to have a medical exami-nation
by a doctor, whenever possible, of their choice.
Commentary
This
rule is based on the three rights of persons who are deprived of their liberty
by the police, which have been identified by the European Committee for
the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
(CPT):
“The
CPT attaches particular importance to three rights for persons detained by the
police : the right of the person concerned to have the fact of his detention
notified to a third party of his choice (family member, friend,
consulate), the right of access to a lawyer, and the right to request a medical
examination by a doctor of his choice (in addition to any medical examination
carried out by a doctor called by the police authorities). They are, in the
CPT’s opinion, three fundamental safeguards against the ill-treatment of
detained persons which should apply as from the very outset of deprivation of
liberty, regardless of how it may be described under the legal system concerned
(apprehension, arrest, etc.).” (CPT 2nd General Report, 1992)
58.
The police shall, to the extent possible, separate persons deprived of their
liberty under suspicion of having committed a criminal offence from those
deprived of their liberty for other reasons. There shall normally be a
separation between men and women as well as between adults and juveniles.
Commentary
Out
of respect for the dignity and integrity of individuals and their needs, the
police should avoid, whenever possible, keeping criminal sus-pects together with
other categories of persons deprived of their liberty (for example, immigration
detainees). This rule is in accordance with principles established by the
European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment. Other grounds for separation are gender and age,
however, separation on these grounds must also take into account personal needs
and decency.
VI.
Accountability and control of the police
59.
The police shall be accountable to the state, the citizens and their
representatives. They shall be subject to efficient external control.
Commentary
The
police shall be accountable to the state (through central, regional or local
bodies) from which it derives its policies and powers. Accordingly, there are
state bodies to monitor and control the police in all member states. However,
state control over the police must, in an open demo-cratic society, be
complemented by the means for the police to be answerable to the public, that
is the citizens and their representatives. Police accountability
vis-à-vis the public is a crucial condition for making co-operation
between the police and the public a reality.
There
are several means of rendering the police accountable to the public.
Accountability can be direct or channelled through bodies repre-senting the
public. Generally, openness and transparency of the police are, however, basic
requirements for accountability/control to be effec-tive. Complaints
procedures, dialogue and co-operation as means of accountability are included
in paragraphs 59 to 63.
60.
State control of the police shall be divided between the legislative, the
executive and the judicial powers.
Commentary
In
order to make the control of the police as efficient as possible, the
police should be made accountable to various independent powers of the
democratic state, that is the legislative, the executive and the judicial
powers.
In
a simplified model, the legislative power (the parliament) exercises an a
priori control by passing laws that regulate the police and their powers.
Sometimes the legislative power also performs an a posteriori control through
“justice and interior commissions” or through “parlia-mentary ombudsmen”, who
may initiate investigations, ex officio or following complaints by the
public concerning maladministration.
The
executive power (government : central, regional or local), to which the police
are accountable in all states, have a direct control over the police as the
police are part of the executive power. The police receive their means from the
budget which is decided by the government (sometimes approved by the parliament).
Furthermore, the police receive directives from the government as to the
general priority of their activities and the government also establishes
detailed regulations for police action. It is important to emphasise that the
police should be entrusted with operational independence from the executive in
the carrying out their specific tasks (see also paragraph 15).
The
judicial powers (in this context comprising the prosecution service and the
courts) should constantly monitor the police in their functions as a component
of the criminal justice system.
The
judicial powers (in this context the courts), also perform an a poste-riori
control of the police through civil and criminal proceedings initiated by other
state bodies as well as by the public.
It
is of the utmost importance that these powers of the state are all involved in
the control of the police in a balanced way.
61.
Public authorities shall ensure effective and impartial procedures for
complaints against the police.
Commentary
Complaints
against the police should be investigated in an impartial way. “Police
investigating the police” is an issue which generally raises doubts as to
impartiality. States must therefore provide systems which are not only
impartial but also seen to be impartial, to obtain public confidence.
Ultimately, it should be possible to refer such complaints to a court of law.
62.
Accountability mechanisms, based on communication and mutual understanding
between the public and the police, shall be promoted.
Commentary
Paragraph
62 encourages the development of public-police relations through accountability
mechanisms. These should bring the public closer to the police and would
contribute to a better mutual understanding and foster the settlement of
disputes between the police and the public. Mechanisms for such accountability
could include a mediation or com-plaints structure that provides contact and
negotiation and an informal method of dispute resolution. Preferably, such
mechanisms should be independent of the police.
In
addition, member states should consider strengthening existing struc-tures, or
develop new ones for police accountability in certain situations where the
police enjoy wide discretion vis-à-vis the individual, for exam-ple in
the use of force, when persons are deprived of their liberty, when the police
interview suspects, and when they use certain investigative measures.
Transparency and public monitoring of situations, such as the provision of
public access to police cells is an example of such a measure, which is
beneficial for the public as well as for the police as it gives the
public a measure of control as well as helping to counteract any ill-founded
accusations against the police.
63.
Codes of ethics of the police, based on the principles set out in the present
recommendation, shall be developed in member states and overseen by appropriate
bodies.
Commentary
Member
states are encouraged to develop codes of ethics based on the values
reflected in this recommendation. It may be difficult to distinguish
between ethical codes and codes of conduct, however, these should clearly be
distinguished from disciplinary instruments, as the latter are aimed rather at
defining what constitutes a breach of professional conduct and its
internal consequences.
Ethical
codes should be overseen by appropriate bodies. It is up to member states to
give this task to existing bodies or to create new ones. Such bodies should,
for example, be independent from the police, be as transparent as possible
towards the public and at the same time have an understanding of police
matters. The ombudsman institution is an example of such a body.
VII.
Research and international co-operation
64.
Member states shall promote and encourage research on the police, both by the
police themselves and external institutions.
Commentary
The
police is an important institution of a democratic state governed by the rule
of law. It is a vital component of the criminal justice system and the body
responsible for public order. The police is provided with specific powers
and should be, at the same time, an integrated part of the society it serves,
etc.
Such
a multifaceted body clearly warrants the best critical attention in the form of
research and police studies. Internal police research should therefore be
complemented with research on the police by institutions independent of the
police. A close link between police training and universities is an example of
a measure that would serve such a research purpose.
65.
International co-operation on police ethics and human rights aspects of the
police shall be supported.
Commentary
The
values and principles expressed in the recommendation need to be implemented
through legislation, regulations and training. In addition, acceptance of these
values should grow from within the police. For these reasons there is a need to
stimulate international co-operation between the police in Europe, including
states and international organi-sations, such as ICPO-Interpol, Europol and
Cepol. The Council of Europe, with its particular expertise in articulating
democratic values, ethics, human rights and the rule of law, has an important
role in facilitating this co-operation.
66.
The means of promoting the principles of the present recommendation and their
implementation must be carefully scrutinised by the Council of Europe
Commentary
The
adoption of the European Code of Police Ethics is in itself an impor-tant step
for the promotion of Council of Europe principles with regard to the police in
member states. However, the principles contained in the code should also be
actively promoted following its adoption.
First,
the code is a basic text which should be complemented with other Council of
Europe legal instruments targeting specific topics more in depth.
Second,
an intergovernmental structure within the Council of Europe could be a useful
basis for furthering police matters in member states. Considering that the
police in all member states are bodies closely asso-ciated with the criminal
justice systems and their activities are mainly related to law and order, crime
prevention and crime control, follow-up action should preferably be considered
in such a context. The know-how and expertise built up with regard to police
ethics, criminal justice, the individual’s fundamental rights, and the rule of
law, could in such a way be maintained in the future within the Council of
Europe.
Appendix
to the explanatory memorandum
The
following persons participated in the work of the Committee of Experts on
Police Ethics and Problems of Policing (PC-PO), 1998 - 2001:
Member
states: Mr Albin Dearing (Austria), Mr Luc Boghaert, Mr Claude Gillard and Mr
Jean-Paul Wuyts (Belgium), Mr Draz¡en Ivanus¡ec and Mr Z¡dravko Z¡ idovec
(Croatia), Mr George Panayiotou, Mr Harry Stavrou and Mr Kyracos Theophilou
(Cyprus), Mr Radim Bures¡, Mr Tomás¡Bur¡il and Ms Hana S¡najdrová (Czech
Republic), Mr Thomas Jacobi and Mr Karsten Petersen (Chairman of PC-PO) (Denmark),
Ms Dominique-Antoinette Gaux, Ms Magali Ingall-Montagnier, Mr Jean-Amédée
Lathoud, Mr Hugues Lebeau, Mr Emmanuel Miglierina, Mr Jean-Louis Ottavi and Mr
José R-V Razafindranaly (France),
M.
Efstratios Papathnassopoulos (Greece), Mr Giovanni Cataldo and Mr Francesco
Mandoi (Italy), Mr Darius Grebliauskas and Mr Edmundas Janku-nas (Lithuania),
M.
Alexander Bordian and Ms Nelea Didic (Moldova), Mr Andrzej Wis’niewski
(Poland), Mr Alberto Borges, Mr José Manuel Carrolo and Ms Silvia Pedrosa
(Portugal), Mr Pavel Abraham (Romania), Mr Janez Mekinc (Slovenia), Mr Juan
María Cabo Mansilla, Mr Domingo Perez Castaño and Mr Manuel Marion
Mainer (Spain), Mr Alexandar Doncev and Mr Nikola Matovski (“the Former
Yugoslav Republic of Macedonia”), Mr Osman Balci, Mr Kemal Baslar, Mr Vahit
Bicak, Mr Ibrahim Cerrah, Mr Kadri Özkan and Mr Mustafa Yavwz (Turkey), Mr Hugh
Orde and Mr John Slater (United Kingdom).
Observers:
Mr Etienne de Perier (European Commission), Mr Olivier Foures and Mr Laurent
Grosse (ICPO-Interpol), Mr Guido Brummelkamp, Mr Juan María Cabo Mansilla and
Mr Emmanuel Miglierina (AEPC) and Mr Edouard Janssens (Intercenter).
Scientific
Experts: Mr Amadeu Recasens I Brunet (Spain) and Mr Neil Richards (United
Kingdom).
Secretariat:
Mr Björn Janson, Council of Europe.
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