C Explanatory memorandum
by Mr Oleksandr Merezhko, rapporteur
1 Introduction
“Violence begets violence”
Martin Luther King Jr.
1. Following a motion for a resolution
that I tabled on 1 October 2020 and which was referred to our committee
for report
Note, I was appointed rapporteur on 14
October 2020. The committee held a hearing with two experts, and
I consulted experts in policing.
Note
2. The motion stated that one of the most pressing problems of
human rights protection was police violence and discrimination,
which the Black Lives Matter movement had recently brought into
the limelight. Therefore, it called on the Assembly to develop standards
on the use of force by law enforcement officers, on the basis of the
existing soft law and the well-established case law of the European
Court of Human Rights, in compliance with the underlying principles
of necessity, proportionality, justice, and non-discrimination.
It also proposed that the Assembly examine the feasibility of drafting
an internationally binding instrument that addressed the excessive
and unjustified use of force by police and other human rights violations
by police forces.
3. Some terminological clarifications are needed. For the purposes
of the present report, I refer to “law enforcement officer” as any
State agent or police officer exercising policing or law enforcement
powers, irrespective of the position in the State institutional
hierarchy. The words “police” and “law enforcement officers” are
interchangeable. I also refer to “excessive force” as the disproportionate
use of legitimate powers granted to law enforcement officers, which
could be physical or psychological pressure, with or without special equipment
and weapons, intentional or unintentional, regardless of the degree
of suffering inflicted on the victims.
4. I should like to stress that no consensus has been reached
about the meaning of these concepts, especially on the definition
of “excessive police force”. However, my report draws a distinction
between manifestly unlawful police conduct, such as beating a suspect
to extort confessions, and excessive use of legitimate policing
powers, for example, overzealously arresting a dangerous suspect.
Both acts are prohibited, but they differ in substance, and the
report aims to clarify these differences and to identify the relevant
legal standards.
2 The analysis of the current situation
of law enforcement in Europe
5. On 25 May 2020, Minneapolis
police arrested George Floyd, a 46-year-old black man. A police
officer laid him flat on the ground with his knee on his neck for
almost nine minutes, leading to his asphyxiation and death while
three other officers just watched. The police officer who used force
was later found guilty of murder and pleaded guilty to the charges
of violating Mr Floyd's civil rights by using unreasonable force
and ignoring the victim's serious medical needs. Other police officers
have been found guilty of depriving Mr Floyd of his civil rights
by showing deliberate indifference and failing to intervene to stop
the use of force by their colleague.
6. Mr Floyd’s death immediately sparked a wave of protests leading
to the Black Lives Matter movement, alleging that law enforcement
officers in the United States use lethal force against black people
with impunity. The movement quickly spread from Minneapolis to the
entire country and then to Europe.
7. This incident served as an impetus for the Parliamentary Assembly’s
Resolution 2389 (2021) “Combating Afrophobia, or anti-Black racism, in Europe”.
Unfortunately, it was not the only incident to reveal that police
and law enforcement agencies continue to use excessive force despite
its absolute prohibition by international legal instruments. Many
other Assembly resolutions mentioned such incidents occurring on massive
scales, which I intend to describe in my report.
8. For obvious reasons, my report cannot cover every incident
of police brutality. Therefore, I chose to reflect on some widely
known incidents in Europe. And most importantly, I focused on those
incidents where excessive force was used on a massive scale. In
my opinion, these incidents underlined the existence of structural
dysfunctions, including discriminatory attitudes, in police and
other law enforcement agencies.
2.1 Using force in the custodial context
9. Sometimes, the expression “excessive
use of force” is confused with certain forms of police brutalities, such
as forcible extractions of confessions and intelligence during criminal
investigations or security operations. However, in these situations,
the police force cannot be qualified as merely “excessive” because any
use of force is prohibited in these circumstances.
10. In other situations, the law allows using force under specific
circumstances and certain conditions. If such a force is abused,
it will become excessive and thus unlawful. For example, using force
during police arrests or applying restraining measures in prisons
is allowed but subject to limitations. It will become excessive if
the limits placed on the use of force are not respected.
11. All these situations essentially have one common feature,
namely that use of force is linked with the police taking or keeping
persons in custody. That is why I called them “using force in the
custodial context”. Unfortunately, despite the existing limits,
the excessive use of force in the custodial context continues, sometimes
revealing a pattern of systemic police misbehaviour. Indeed, the
arrest George Floyd has proven such a systemic pattern.
2.2 Using force to suppress/disperse peaceful
protests
12. In the situations described
below, the use of force was covered by a legitimate purpose. Force
was employed to restore public order while policing mass events
and controlling crowds. But in these situations, I observed a predisposition
of the police to use force excessively, on a massive scale, leading
to the escalation of violence.
13. The tragic events in Armenia referred to as “March First”
is the first example. On 1 March 2008, early in the morning, police
started forcibly dispersing thousands of persons who camped overnight
at the central square in Yerevan and were peacefully protesting
for the last ten days against the results of the presidential elections.
Law enforcement agents started beating the protesters with truncheons
and electric-shock devices, causing a wave of violence. The street
violence lasted two days and eventually involved armed forces using assault
rifles against the protesters. Hundreds of protesters and police
officers were seriously injured, eight were killed, many went missing.
Note
14. Similar events, called “7 April”, took place in the Republic
of Moldova after the general parliamentary elections in 2009. Thousands
of young people peacefully protested in the centre of the capital
for two days. On 7 April 2009, a relatively small number turned
violent and took over the presidential palace and the parliament building.
Police failed to intervene and witnessed the destruction, looting
and partial burning of these buildings. In the following days, the
media and human rights defenders reported massive arrests and beatings
of young people in the streets. They published video records depicting
police officers and agents of special forces, wearing no uniforms,
hiding behind masks or baklavas, arresting and beating young people
in plain sight. Many complained about ill-treatment in police custody;
one person was found dead near the buildings. A subsequent public
inquiry concluded that excessive force had been used against protesters.
Note
15. The “Euromaidan” protests in Ukraine illustrated how the authorities’
decision to disperse the protests led to the escalation of violence.
In Kyiv, minor clashes between police and protesters were registered
during the so-called first wave of the protests. On 30 November
2013, the situation deteriorated after the special “Berkut” police
intervened in force, causing the second wave of clashes. The law
enforcement agencies involved private individuals, known as “titushky”,
who beat and apprehended the protesters, thus amplifying the violence.
As a result, hundreds of people were killed, and thousands were
injured. The Assembly and the European Court of Human Rights found
the Ukrainian authorities at the time responsible for using excessive force
and for the ill-treatment of protesters.
Note
16. August 2020 in Belarus was marked by the same widespread use
of police violence. People peacefully protesting the fraudulent
re-election of President Lukashenko were violently dispersed. Police
and security forces used excessive force, special equipment and
non-lethal, nevertheless dangerous, weapons, water cannons, batons,
stun and flash grenades, and rubber bullets. Many people were injured,
at least two were killed, two died in detention after being arrested
for participation in the protests.
Note
17. France also faced criticism for excessive use of police force.
The Assembly criticised the extensive emergency powers used during
the COP21 Climate Change Conference, one week after the terrorist
attacks in Paris in 2015. The police used disproportionate force
during the 2016 demonstrations known as “Nuit debout”. Media and
the Council of Europe Commissioner for Human Rights reported numerous
cases of police violence in the context of the
gilets jaunes movement in 2018.
In 2020, the press continued to report incidents of police violence,
such as the death of Cédric Chouviat after his arrest by police
in Paris, the racist remarks of police officers in Seine-Saint-Denis,
the clashes during the evacuation of the migrant camp at Place de
la République, etc. The assault on music producer Michel Zecler
by police officers has rekindled the debates in connection with
the Black Lives Matter movement.
Note
18. According to the European Court of Human Rights and the Committee
of Ministers, suppressing peaceful protests by excessive force used
by the police has already become a systemic problem in Russia. The
Commissioner expressed numerous concerns about the excessive force
used against protesters and journalists who were not offering resistance.
The problem endures as media and human rights organisations continue
to report that Russian law enforcement agencies regularly employ
force and non-lethal weapons to disperse demonstrations. According
to Russian non-governmental organisations, the protests often end
with dozens of injured people and hundreds of persons arrested or
ill-treated.
Note Most
recently, the recent crackdown against peaceful protests in numerous
Russian cities and towns against the brutal military attack on Ukraine provides
new, shocking examples, on a daily basis.
19. Similarly, systemic use of force has continued in Turkey since
the beginning of the 2000s. Turkish law enforcement agencies habitually
employ crowd control weapons and tear gases to shut down protests.
The Committee of Ministers expressed concerns about this practice
and noted no progress in resolving this problem. The Assembly also
referred to the numerous incidents of forcible suppression of peaceful
protests in Turkey. Human rights defenders outlined the rollback
of human rights and the rule of law in Turkey, linked to mass anti-government
protests in 2013. According to some organisations, the last years
were marked by an increasing number of police torturing and ill-treating
detainees, particularly after the failed coup of 2016. Such incidents
were considered part of a disturbing pattern of violent arrests,
beatings, and mistreatment of protesters.
Note
20. In Azerbaijan, forcible suppression of peaceful demonstrations
involved massive arrests of political opponents and journalists,
allegedly subjected to torture in police custody and prisons.
Note Estonian
law enforcement officers reportedly used excessive force during
riots sparked by the authorities’ decision to relocate a monument
in Tallinn in 2007.
Note A series of the most violent protests
in the United Kingdom, known as the “2011 England riots”, were catalysed
by the death of a young man shot dead by police. Allegations of disproportionate
use of force were brought against Spanish law enforcement agencies
in the context of protests held in Catalonia in October 2017 and
2019.
Note Alleged excessive use of force (tear
gas and rubber bullets) by the law enforcement officers was reported.
The protests started as peaceful, but later transformed into a violent one
and the law enforcement officers felt obliged to confront the protesters
who, following calls by opposition leaders, tried to storm into
the parliament building. The protests were held to condemn the participation
of a Russian MP in the Inter-parliamentary Assembly on Orthodoxy
(IAO) event taking place in the Parliament of Georgia in June 2019.
Note
21. In July 2020, in Serbia, police fired tear gas and stun grenades
indiscriminately into the crowd and beat demonstrators and passers-by,
including journalists.
Note In Albania, clashes between police
and protesters escalated following the fatal shooting of a young
man by the police in December 2020.
Note In Greece, massive demonstrations
became violent in March 2021 after a police officer assaulted a
student with an iron baton for violating containment measures.
Note In January 2021, a protest in Belgium
turned violent as demonstrators clashed with police over the death
of a man of North African descent who had died in police custody.
Note In March 2021, violent riots re-emerged
following the attempts by the Belgium police to enforce Covid-19
restrictions.
Note Following the COVID-19 restrictions,
waves of protests erupted regularly in Austria, the Netherlands,
Italy, France, Germany, Croatia, etc. Many of them turned into violent
clashes with the police, though it was not always clear whether
the police were at the origin of the escalation.
Note
22. Unfortunately, these are not the only examples of police using
excessive force. Excessive force has been used in policing peaceful
protests and, recently, to enforce sanitary restrictions during
the Covid-19 pandemic. In some instances, law enforcement officers
triggered clashes or contributed to the escalation of violence.
These examples show that the excessive use of force by the police
has become a persistent problem across Europe. It requires a systemic
approach.
2.3 Using force during crowd control
23. The following examples point
to different patterns of systemic police misbehaviour. In these
situations, law enforcement officers exceeded their powers while
confining crowds of people who were not protesting. As many commentators
observed, these incidents were different because of the discrimination
underlying the police conduct. They also include the failure to
prevent counter-demonstrations from turning violent, especially protests
motivated by racism, xenophobia, anti-Semitism, nationalism, or
homophobia.
24. In every cycle of the migrant crisis in Europe, police violence
during crowd control measures becomes apparent. During the 2015
refugee crisis, while attempting to stop the influx of migrants,
law enforcement in some member States of the Council of Europe pushed
back migrant crowds using special tools indiscriminately. For example,
in 2014 in Ceuta, the Spanish Civil Guard reportedly used rubber
bullets and tear gas canisters against migrants, causing deaths.
Note In 2015, many Syrian refugees were
sent back to Serbia by the Hungarian police using tear gas and water
cannons against women and children.
Note In France in 2017, migrants living
in the “Great Jungle” of Calais claimed to have suffered police
violence.
Note
25. Greece has reportedly operated secret extrajudicial migrant
detention facilities to prevent the recurrence of the 2015 migrant
crisis. The Greek police and security forces, including armed civilians,
were accused of torture, discrimination, violations of anti-racism
laws, sexual abuse, and physical assaults of migrants.
Note Non-governmental organisations documented
increased violence and abuse by Croatian police at the border with Bosnia
and Herzegovina, where migrants had been tied up and physically
assaulted by police officers.
Note
26. All these and other documented examples of forcible removals
were often associated with police brutalities and xenophobic, nationalistic,
or other discriminatory attitudes of law enforcement officers. A
key issue is that of proportionality, given that the protection
of the national borders against the massive influx of illegal immigrants
is a legitimate aim.
2.4 Using force in post-conflict situations
27. Systemic abuse of the police
force often follows armed conflicts and continues in the transition
periods. The “Greek case” was the first example revealing massive
torture suppressing political opposition and civil unrest after
the 1967
coup d’état.
Note Another well-known
example is the case of Northern Ireland, where the authorities used
coercive interrogation methods to investigate and prevent terrorism
and civil disorders in the 1971 crisis.
Note
28. In this context, I must also refer to the “many serious violations
of the rights of Crimean Tatars, including torture and inhuman or
degrading treatment by members of the security forces and law-enforcement
officials attributed to Russia”.
Note Allegations were brought about
‘inhuman and degrading treatment and torture of Armenian prisoners
of war by Azerbaijanis, as well as a number of allegations of similar
treatment of Azerbaijani prisoners of war by Armenians in the context
of the recent conflict in Nagorno-Karabakh
Note. According
to the European Court of Human Rights, after the cessation of hostilities
between the Russian Federation and Georgia in 2008, many civilians
and prisoners of war were exposed to torture and humiliating acts
amounting to a widespread administrative practice.
Note
3 International legal framework on using
force in policing and law enforcement
29. All these incidents of systemic
overuse of police force raise concerns about the efficiency of the international
legal instruments prohibiting the use of excessive force. To answer
these concerns, I will first identify the relevant international
instruments and describe briefly the standards they provide. Then
I will evaluate the status of their implementation.
3.1 Relevant legal instruments of the
Council of Europe
30. Two internationally binding
treaties concluded under the aegis of the Council of Europe are
relevant for policing and law enforcement: the Convention for the
Protection of Human Rights and Fundamental Freedoms (ETS No. 5)
and the European Convention for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (ETS No. 126). The Convention
and the European Court of Human Rights’ s case law establish the
most comprehensive framework for the operational work of law enforcement
agencies, while the European Convention for the Prevention of Torture
applies to a lesser extent, and I will explain later why.
3.1.1 The European Convention on Human Rights
31. Articles 2 and 3. of the Convention
are the main provisions governing the use of force by law enforcement
officers. Article 2, which protects the right to life, limits the
use of lethal or potentially lethal force to a few specific situations
when such use is absolutely necessary. Article 3 imposes an absolute
prohibition on torture and inhuman and degrading treatment or punishment.
These articles require national legislation and specific measures
by the State to prevent the prohibited conduct. In addition, they
require that credible allegations of abusive force by State agents
in breach of Articles 2 and 3 be effectively investigated by independent
authorities.
32. With respect to the use of lethal force, Article 2 imposes
an assessment that requires that any force deployed by the State
must not exceed what is “absolutely necessary”. In particular, the
force used must be strictly proportionate to the purposes mentioned
in Article 2. Article 2 applies to the conduct of officers using force
and to officers responsible for planning and controlling police
operations where lethal force is a possibility. Police operations
must be planned and controlled by the authorities in such a manner
as to minimise to the greatest extent possible recourse to lethal
force and human losses. Police officers must be given clear guidance
on how and when they may use their weapons: a legal and administrative
framework must define the limited conditions under which law enforcement
officials may use force and firearms, taking into account the international
standards developed in this area. It is of primary importance that
domestic legislation is guided by the principle of “absolute necessity”
and contain clear indications to that extent, including the obligations
to decrease the risk of unnecessary harm and exclude the use of
weapons and ammunition that carry unwarranted consequences. Law
enforcement agents must be trained to assess whether or not there
is an absolute necessity to use firearms on the basis of the relevant
regulations. Moreover, States are expected to set high professional
standards within their law-enforcement systems and ensure that law
enforcement officers meet the requisite criteria.
Note
33. In order to assess whether the use of lethal force is “absolutely
necessary” under Article 2 in the particular circumstances of each
case, the European Court of Human Rights has to establish whether
the actions of the police officers involved were based on an honest
and genuine belief which was perceived to be valid at the time,
even if such belief subsequently turns out to be mistaken. In this
regard, the Court has admitted that Article 2 obligations cannot
impose an unrealistic burden on the State and its law enforcement officers
in the execution of their duties, to the detriment of their lives
and the lives of others.
Note
34. The Court has had occasion to apply the principles developed
under Article 2 regarding the use of lethal force by law enforcement
officers in different contexts: policing demonstrations, attempted
arrests, anti-terrorist operations, rescue operations in the context
of hostage-taking, border control, or anti-riot operations in prison. In
certain cases where the death was hastened by the use of specific
arrest techniques, the Court examined whether there was a causal
link between the force used and the death of the individual and/or
whether State agents took the appropriate steps to safeguard his
or her life after the arrest, for instance by providing the required
medical assistance.
Note
35. Article 3, on the other hand, imposes an absolute prohibition
on torture and inhuman or degrading treatment or punishment. The
guarantee is expressed in absolute terms and includes no exceptions,
contrary to Article 2 and other normative clauses of the Convention.
Even in the most difficult circumstances, such as the fight against
terrorism and organised crime or influx of migrants, Article 3 does
not allow for any balancing of interests. No derogation from it
is permitted under Article 15 in time of war or other public emergency threatening
the life of the nation. However, the treatment must attain a minimum
level of severity to fall within the scope of Article 3: the assessment
of that level is relative and depends on all the circumstances of
the case (duration, effects, characteristics and vulnerability of
the victim, purpose, context).
Note
36. In recent years, the European Court of Human Rights seems
to have departed from the minimum level of severity test in the
very particular context of a person who is deprived of liberty “or,
more generally confronted with law-enforcement officers”. In such
a situation, any recourse to physical force which has not been made strictly
necessary by that person’s conduct, whatever the impact on the person
in question, diminishes human dignity and constitutes a violation
of Article 3. This principle, which implies a “strict necessity”
and proportionality assessment of the State conduct, has been applied
in cases concerning the use of force by law enforcement officers
during the course of an arrest, the dispersal/quelling of mass protests,
or the application of security measures in a prison context. In
this connection, the Court has underlined that article 3 does not prohibit
as such the use of force by State agents for effecting a lawful
arrest; such force may, however, be used only if indispensable and
must not be excessive. For instance, it is important to determine
whether there was reason to believe that the person concerned would
resist arrest or abscond, cause injury or damage or suppress evidence.
Police operations should be planned and carried out in such a way
as to ensure that the means employed were strictly necessary in
order to attain the ultimate objective of arresting the person.
Note
37. As regards the use of specific instruments by law enforcement
agents, the Court has generally endorsed the recommendations of
the European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT). For instance, pepper
spray should not be used in confined spaces, and there should be
clear safeguards in place for its use in open spaces. The firing
of tear gas grenades during demonstrations must be sufficiently
regulated by national law, with appropriate safeguards against abuse. Similarly,
electroshock weapons used in contact mode, should in principle,
be avoided.
Note
38. Where an individual raises an arguable claim that the use
of force by State agents was in breach of Articles 2 or 3, the procedural
aspect of these provisions requires that there should be an effective
official investigation aimed at ensuring their accountability for
any unlawful killing or ill-treatment. The relevant criteria for
assessing the effectiveness of an investigation include the adequacy
of the investigative measures, the promptness of the investigation,
the involvement of the victim or the deceased person’s family and
the independence of the investigation. Independence means a lack
of any hierarchical or institutional connection between the persons
responsible for carrying it and those targeted by it, but also practical
independence. Moreover, the investigation should address the issue
of the proportionality of the use of force and whether the law enforcement
operation was properly organised in such a way as to minimise any
risk. In the context of police operations dealing with mass protests,
masked officers should be required to visibly display some distinctive
insignia, enabling their later identification and questioning in
the event of challenges to their conduct. Moreover, procedural obligations
under Articles 2 and 3 extend to issues related to prosecution and
sanction of law enforcement officers when the official investigation
has led to the institution of proceedings. Therefore, the Court
may find violations of these articles in cases of manifest disproportion
between the gravity of the conduct and the sanction, taking into
account the fact that the officer was not suspended from duty nor dismissed.
In this regard, States’ positive obligations include a requirement
to introduce efficient criminal-law provisions. Last but not least,
in cases of use of force in breach of Articles 2 or 3 by State agents,
besides the obligation to conduct an effective investigation capable
of leading to the identification and punishment of those responsible,
an award of compensation to the victim or the family is required
as a form of redress.
Note
39. Article 14 of the Convention prohibits discrimination. It
has been applied in conjunction with Articles 2 and 3 when discriminatory
attitudes are a possible causal factor of the alleged abuse by law
enforcement officers. Although proving discriminatory motivation
will often be difficult in practice, States have a procedural obligation
to investigate the suspected discriminatory motives in the contested
conduct. These principles apply in particular with regard to racially
motivated violence, but also to violence resulting from any other
ground of discrimination (religious, gender-based, sexual orientation,
etc.).
Note
40. The Court has also examined the implications of the use of
force by law enforcement officers for the exercise of other Convention
rights such as the right to freedom of expression (Article 10) and
the right to freedom of peaceful assembly (Article 11). For instance,
the unnecessary and excessive use of force against a journalist
who was covering a demonstration was found to breach Article 10,
irrespective of whether there had been any actual intention to interfere
with his journalistic activity. Police applying force against peaceful participants
during the dispersal of an assembly was considered to be a disproportionate
interference with Article 11.
Note
41. In my opinion, the above-mentioned provisions of the Convention,
as interpreted by the Court, provide strong legal standards that
should be upheld and implemented in actual practice. This can admittedly
be difficult to do, given the operational choices the police face
on the ground and the unpredictability of human conduct, particularly
when confronted with violence and different security threats.
3.1.2 The European Convention for the Prevention
of Torture
42. In its preamble, the European
Convention for the Prevention of Torture refers to Article 3 of
the Convention. This is a framework treaty with narrow scope since
it applies only to situations of detention. Article 1 reads that
the CPT is to carry out visits to “examine the treatment of persons
deprived of their liberty with a view to strengthening, if necessary,
the protection of such persons from torture and from inhuman or degrading
treatment or punishment”. The CPT has already recognised its limited
mandate, for example, when referring to the 2013 “Gezi Park protests”
in Turkey. It stated that it would refrain from examining the proportionality
of the force applied in the context of crowd control. When the CPT
visited the Republic of Moldova in connection with the “7 April”
protests, it scrutinised the use of force by the police officers
only because numerous protesters had been arrested.
Note Thus, the
European Convention for the Prevention of Torture applies to the
use of force and police brutality only in situations connected to
or followed by deprivation of liberty.
43. The CPT has developed many guiding principles relevant to
law enforcement work. These refer to specific police powers while
arresting, interviewing, and taking persons into custody. Its standards
also refer to special restraining measures and the use of non-lethal
weapons by police or prison guards in the same contexts.
44. The limited scope of the European Convention for the Prevention
of Torture does not allow the CPT to look into situations not connected
to deprivation of liberty, such as using force to handle mass disorders. However,
the States Parties to the European Convention for the Prevention
of Torture can choose to extend the application of the CPT standards
outside this narrow context.
45. For example, the CPT refers to the so-called “trinity of rights”
aimed at preventing risks of ill-treatment of persons detained by
the police. Educating the police to respect these rights, “or even
a change of culture within the criminal justice system as a whole”,
was considered by the CPT as the key factor in promoting a zero-tolerance
policy against torture. In this sense, the CPT also underlined the
importance of an inter-institutional approach to encourage this
policy. Independent inspections of police establishments, including
prosecutorial and judicial scrutiny, are also necessary. Complaint
mechanisms, effective criminal investigations and disciplinary proceedings
provide different redress against police misconduct while ensuring
accountability and preventing impunity.
Note Some
of these standards could be applicable outside the limited custodial
context.
46. Another relevant set of CPT standards refers to the use of
special tools and non-lethal weapons, such as electrical discharge
weapons. According to the CPT, such weapons should be subject to
the principles of necessity, subsidiarity, proportionality, prior
warning and precaution. Officials with the right to use these weapons
should receive adequate training, and the criteria governing their
use should be directly inspired by those applicable to firearms.
Note These
standards could also be extended to regulate the use of weapons
and special tools in the context of crowd control measures.
3.1.3 Parliamentary Assembly
47. The Assembly has addressed
police brutalities and massive breaches of human rights by law enforcement.
However, it has so far examined only specific incidents, without
observing the situation from a systemic perspective.
48. Referring to the “March First” events in Armenia, the Assembly
stated that “an independent, transparent, and credible inquiry into
the events […] and the circumstances that led to them, including
the alleged excessive use of force by the police, should be carried
out immediately”.
Note
49. Responding to the “7 April” events in the Republic of Moldova,
the Assembly urged the Moldovan authorities to “further reform the
police; create effective remedies against excessive force and violence
by members of the police; set up training for police officers, so
as to ensure that they always act in full compliance with the law
and in conformity with the standards of the European Code of Police
Ethics”.
Note Later, it repeated that Moldovan
authorities should “take action to bring police practice in line
with Article 3 of [the Convention] and to establish an independent
administrative body competent to deal with complaints against police
and law enforcement personnel”.
Note
50. The Assembly also reacted to the “Euromaidan” events in Ukraine.
It insisted that “the excessive and disproportionate use of force
by the police, and other alleged violations of human rights need
to be fully and impartially investigated, addressed and remedied
and the perpetrators brought to justice”. It welcomed the establishment
of “an independent advisory panel to investigate the violent incidents
during the Euromaidan protests”.
Note
51. Following the outburst of police violence after the presidential
elections in 2020 in Belarus, the Assembly stressed that “combating
impunity for the perpetrators of serious human rights violations
is of the utmost importance, out of principle and also to deter
others from perpetrating human rights violations”. It was considered
irrelevant that Belarus is not a party to binding anti-torture treaties,
as torture and inhuman or degrading treatment are also crimes in
Belarusian law. Moreover, the Assembly called on member States to “support
the ongoing efforts at international level to call to account the
perpetrators of serious human rights violations committed in Belarus
…, including by exercising the universal jurisdiction provided for
in their criminal legislation”.
Note
52. The Assembly adopted similar recommendations referring to
other examples of using excessive force in Azerbaijan
Note and Turkey
Note. It observed that obligations to
carry out effective investigations into such incidents and fight
impunity are key responsibilities of States.
3.1.4 Committee of Ministers
54. The most relevant instrument
adopted by the Committee of Ministers is the European Code of Police Ethics
Note. This document sets out guiding principles
for policing in a democratic society applicable to virtually all
situations and police activities. The Code is a valuable tool to
regulate policing. With regard to the use of force, it states that
“the police may use force only when strictly necessary and only
to the extent required to obtain a legitimate objective” (paragraph
37). Police actions must be guided by the principle of non-discrimination
(paragraph 40), and bear in mind everyone’s fundamental rights,
including freedom of assembly (paragraph 43). Unfortunately, the
Code is only a recommendation and requires updating to reflect current realities,
as it was adopted more than twenty years ago.
55. Another non-binding instrument is the Committee of Ministers’
Guidelines on eradicating impunity for serious human rights violations.
Note The guidelines refer to the
police using force but only in the context of deprivation of liberty:
“States must ensure that officials carrying out arrests or interrogations
or using force can be identified in any subsequent criminal or disciplinary
investigations or proceedings” (IV.4, under persons deprived of
liberty). However, according to the guidelines, their scope covers
all “serious human rights violations”, including the general prohibition
of torture and inhuman or degrading treatment or punishment. Moreover,
the Guidelines specify that “nothing … prevents [member States]
from establishing or maintaining stronger or broader measures to
fight impunity”.
3.1.5 European Commission against Racism
and Intolerance (ECRI)
56. ECRI adopted General Policy
Recommendation No. 11 on combating racism and racial discrimination in
policing. It addresses racism and racial discrimination in the fight
against all crimes, including terrorism. It focuses particularly
on racial profiling, racial discrimination, and racially motivated
abusive behaviour of police; the role of police in combating racist
offences and monitoring racist incidents; relations between police
and members of minority groups, etc.
Note
3.1.6 The Council of Europe Commissioner
for Human Rights
57. The Commissioner commented
on inappropriate policing of peaceful demonstrations on several occasions.
According to her comments, “many instances of disproportionate use
of force against peaceful demonstrators continue to be reported
across Europe, including beating of demonstrators and using techniques
of crowd containment which can put their safety at risk”. The Commissioner
mentioned that “in many countries, police increasingly use less-lethal
weapons, such as batons, tear gas, hand-held sting grenades, electroshock
weapons, water cannons and rubber bullets, to control or disperse
crowds of demonstrators.” “The use of such weapons does not contribute
to de-escalating tensions, which should be a major objective of
policing of demonstrations.”, she noted.
Note
3.2 Relevant standards of the United Nations
58. The core UN legal instruments
are the International Covenant on Civil and Political Rights (ICCPR)
and the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (UNCAT). Prohibiting torture, cruel, inhuman,
or degrading treatment or punishment and discrimination, Articles
7 and 26 of the ICCPR are almost identical to the corresponding
provisions of the European Convention on Human Rights. Article 1
of the UNCAT is the most universally accepted and comprehensive
definition of torture. Article 16 (1) of the UNCAT establishes the
obligation to prevent other acts of cruel, inhuman, or degrading
treatment or punishment which do not amount to torture. Both treaties
therefore prohibit excessive force in absolute terms, but neither
has been construed to ban legitimate and proportionate use of force.
The UN treaty bodies explained this principle in their general recommendations
and decisions on individual complaints. However, none of these recommendations
or decisions is binding.
3.2.1 General Assembly of the United Nations
and other UN policy-making bodies
59. The General Assembly of the
United Nations Code of Conduct for Law Enforcement Officials
Note is the most important legal
instrument regulating the use of force. It lays the foundation for
the principles of legality, necessity, and proportionality applicable
in this area. Article 3 reads that “law enforcement officials may
use force only when strictly necessary and to the extent required
for the performance of their duty”. The commentary to this article
clarifies that even if national law allows using force, it should
always be proportionate to “the legitimate objective to be achieved”.
Most importantly, the Code refers to the use of force in all contexts, irrespective
of whether a person is deprived of liberty.
60. The Basic Principles on the Use of Force and Firearms by Law
Enforcement Officials (the Basic Principles)
Note is
another relevant non-binding instrument adopted by the UN Crime
Congress. This document is an invaluable tool for guiding and evaluating
police work. It has been widely accepted as an authoritative statement
of law. The Basic Principles are frequently used as a reference
by international courts, including the European Court of Human Rights,
and other international institutions or human rights organisations.
Its provisions refer to all law enforcement personnel and all contexts
of policing.
3.2.2 UN Human Rights Treaty Bodies
61. The Human Rights Committee
(CCPR) reiterated that “Article 7 [of ICCPR] allows of no limitation”
and that “no justification or extenuating circumstances may be invoked
to excuse a violation of [this] article for any reasons”. It underlined
that the application of Article 7 is broad because the ICCPR “does
not contain any definition of the concepts covered by [this] article”.
Accordingly, the CCPR did not draw up “a list of prohibited acts
or establish sharp distinctions between the different kinds of punishment
or treatment; the distinctions depend on the nature, purpose and
severity of the treatment applied”. This statement authorises an
extensive application of Article 7 ICCPR to the use of force by
law enforcement officers in every context relevant to policing.
Note
62. The Committee Against Torture (CAT) also sees the concept
of the use of force as equally applicable to the custodial and non-custodial
context of policing. Though it has not defined the excessive use
of force, the CAT emphasised that the obligation to prevent torture
is wide-ranging. Accordingly, the use of force must be adequately
regulated, but its excessive use should be banned absolutely, irrespective
of whether the person was deprived of liberty or not.
Note
63. For example, the CAT regularly extends the absolute prohibition
of torture to include the excessive use force during protests.
Note The
CAT examined the overuse of certain types of weapons in policing,
including firearms, and recommended that States ensure compliance
with the principles of necessity, subsidiarity, proportionality,
prior warning, and precaution.
Note It expressed concerns
about the over-militarisation of police, public security services,
prisons, and the proliferation of new security agencies.
Note Therefore,
the CAT extended its recommendations on regulating the use of force
beyond the custodial context of policing.
64. Other UN treaty bodies refer to the issue of discrimination
in the context of using force. For example, the Committee on the
Elimination of Racial Discrimination (CERD) emphasises the need
for training of law enforcement officers.
Note It proposed to update
law enforcement policies to prevent and fight discrimination in the
context of the current realities. The increased use by law enforcement
agencies of metadata, artificial intelligence, facial recognition,
and other new technologies risks aggravating racism, racial discrimination, xenophobia.
Algorithmic profiling systems should fully comply with international
human rights law. The CERD stressed the importance of transparency
in designing and applying algorithmic profiling systems when deployed
for law enforcement purposes.
Note These
measures are relevant for policing of mass events and planning crowd
control measures.
4 Implementation of the international
standards
65. My report covers specific situations
of excessive use of force, namely while suppressing peaceful protests,
handling crowds of migrants and counter-protesters, restoring order
in the aftermath of conflicts or in times of an emergency. It would
appear that in many of these situations, relevant international
standards have been systematically disregarded.
66. At the hearing before our committee, experts confirmed that
excessive use of force has become a systemic problem. They observed
that many States had invested heavily in the militarisation of law enforcement
agencies, which increased the likelihood of violent conflicts between
the police and the public. In addition, not all law enforcement
agencies have implemented proper data collection and analysis tools,
and the databases that do exist are unavailable to the public. Police
officers do not always wear uniforms, body cameras or distinctive
signs allowing the public to identify and keep records of their
activities. There is a widespread policy to ban filming of police
operations and to prevent sharing private records via social networks. Simple
reliance on voluntary compliance with human rights standards is
insufficient. Police lack accountability, and in the end, the problem
grows in Europe, the experts said.
67. This statement worries me. The member States of the Council
of Europe share the most advanced human rights protection system.
Despite the European Convention on Human Rights, the European Convention
for the Prevention of Torture, and other important Council of Europe
treaties, law enforcement officers in some member States continue
to disobey the binding standards and systemically apply excessive force.
How can this be explained?
68. Some experts explained that law enforcement officers lacked
training and misunderstood international legal instruments. Human
rights treaties were seen as too general and deemed unclear for
an ordinary police officer. It was difficult for an untrained law
enforcement officer to assess proportionality and to take rapid decisions
on the spot while violence was ongoing. It was even more challenging
to evaluate the degree of necessity of the force in the context
of life-threatening situations.
69. In addition to lack of training or professionalism, many other
factors contribute to non-compliance with international legal instruments.
For example, I have observed a culture of tolerance for the use
of excessive force among law enforcement officers. In many cases,
excessive force was considered justified by direct or implicit orders
from the police hierarchy or the government. In some instances,
the use of force was a political decision rather than a choice based
on the situation on the ground.
70. Excessive force has been applied with impunity. No effective
investigations have been carried out, and the responsible persons
have not been identified, let alone punished. The authorities have
not inquired about the causes of police misbehaviour or possible
measures to prevent it. On the contrary, instead of devoting their attention
to training and prevention of excessive use of force, the authorities
have heavily invested in increasing the capabilities of the police
to use coercive methods. As a result, an overall sense of impunity
has developed, leading to the repetition of unlawful police behaviour
and excessive use of force.
71. Almost all relevant international standards are seen as non-mandatory.
The provisions of the binding treaties have been drafted in broad
terms, which often require further interpretation. The legal instruments explaining
and interpreting the treaties are either non-binding or binding
only inter partes. For example,
the European Convention for the Prevention of Torture is a binding
instrument, but the CPT‘s recommendations are not.
Note The
judgments of the European Court of Human Rights are binding, but
only for the respondent State(s), and their
“res
interpretata” effects have not yet been fully recognised.
Note In the UN human rights system,
States generally do not recognise the binding effects of the treaty
bodies’ decisions and recommendations, such as the CAT or the CCPR.
Note
72. Finally, the various international standards are uncodified
and, therefore, difficult to comply with in practice. They originate
from various legal sources, recommendations, and judgments of international
courts, which can be difficult to read. For a police officer working
in the field, the rules of conduct should be brief and clear. Their
training should be based on a comprehensible summary of applicable
national law, which must be in conformity with relevant international
standards.
5 What are the possible solutions?
73. National law is key to delineate
the principles of using force lawfully and in a proportionate way,
provided it is compatible with international standards and properly
enforced. I believe that the problem lies in the insufficient implementation
in practice of these standards.
74. In the following paragraphs, I will propose some practical
proposals to overcome the problem of poor implementation: reforms
at the institutional and regulatory levels, including at the Council
of Europe, and the necessity to collect, share and take inspiration
from other States’ good practices. Some specific and innovative solutions,
as recommended by our experts, could also be considered.
5.1 Institutional reforms
75. Each country has its own constitutional
and administrative systems, and it remains entirely at the discretion
of States where to place law enforcement agencies. However, the
international legal instruments require the effective investigation
and, as appropriate, sanction for every occurrence of excessive
force. Furthermore, the positive obligations under the European
Convention on Human Rights and other relevant international legal
instruments require that member States prevent such occurrences,
including removing any political influence over the operative decisions
of police.
76. Thus, I propose reforms to guarantee the institutional and
functional independence of the police and other law enforcement
agencies whilst maintaining their accountability vis-à-vis parliament.
Police should establish their own system of control and chain of
command insulated from political pressure to use force unnecessarily.
Independent mechanisms should be established within or outside police
institutions to launch efficient, thorough, and expedient investigations
into the causes of excessive use of force and ensure the accountability
of those involved. States should increase their efforts to fight
impunity, improve their judicial and prosecutorial systems and impose
adequate and dissuasive criminal and disciplinary sanctions for
the crimes and misdemeanours associated with police brutalities
and excessive use of force. To overcome the culture of impunity
prevailing in some police forces, strong protections for whistle-blowers
should be implemented, in line with the Assembly’s earlier resolutions.
Note Finally,
States should provide compensatory remedies for the victims of excessive
force.
5.2 Regulatory reforms
77. In my view, two types of regulatory
reforms are needed. Firstly, the current legal instruments, national
or international, should be strengthened and implemented more efficiently.
This could be done by the process sometimes called “hardening of
soft law”,
Note which
includes updating certain international legal instruments and reviewing
domestic legislation. Secondly, regulatory reforms can be achieved
by restating relevant international standards and issuing new specific
legal instruments delineating key principles.
78. In the context of the use of force by law enforcement bodies,
as I mentioned above, not all member States treat relevant Council
of Europe instruments as binding. According to the principle
pacta sunt servandaNote,
the European Convention on Human
Rights and the European Convention for the Prevention of Torture
are the only indisputably binding sources of law. Other Council
of Europe sources of law, such as recommendations, guidelines, resolutions
of the Assembly and the Committee of Ministers, have various effects
on the domestic legal order. Still, the recognition of their effects
has been left to the discretion of member States
Note.
79. Nothing prevents States from implementing these non-binding
international legal instruments at national level. Member States
can use the Assembly’s resolutions and the Committee of Ministers’
recommendations as models for their domestic legislation.
80. On the other hand, the Committee of Ministers could review
and update its existing non-binding legal instruments and underline
their application to situations where the police force is using
force in the non-custodial context. I refer to the Committee of
Ministers’ European Code of Police Ethics and
the Guidelines on eradicating impunity for serious human rights
violations. I also believe that a special recommendation of the Committee
of Ministers on the use of force in policing is needed. The Court,
the Assembly, the Commissioner, the CPT, and ECRI all contributed
to establishing the principles applicable to the use of force by
the police, as did the relevant UN bodies. It would in fact be useful
to have a compilation of all relevant standards, prepared under
the auspices of the Committee of Ministers. The logical next step
after the adoption of a specific and up-to-date recommendation would
be to consider a new Council of Europe Convention on the prevention
of excessive police violence, codifying the highest standards and
best practices in this field, with a strong follow-up mechanism.
Note
5.3 Good practices in policing
81. Compiling good practices in
policing is another solution to prevent excessive use of force.
Such practices illustrate how law enforcement officers can comply
with the legal instruments and be the source of inspiration for
national regulations. However, due to the diversity of legal systems,
what is considered good practice in a specific State may not be
applicable in another State. Therefore, good practices should be
collected and analysed by experts under the auspices of the Committee
of Ministers. The aim is to draft guidelines for the implementation
of the future Committee of Ministers’ recommendation on the use
of force in policing.
82. On 20-21 October 2020, the Council of Europe and IPCAT organised
a conference entitled “The role of the police in a democratic society:
European Code of Police Ethics, almost 20 years old”. Its objectives
were to increase knowledge, to stimulate co-operation between member
States. It recognised the challenges which police confront in the
context of evolving societies and technological progress. The conference
enabled an exchange of views on the key topics that help improve
policing, such as qualifications, recruitment and retention of police
personnel, accountability, external and internal control, research,
inter-institutional and international co-operation with other States
and the Council of Europe or human rights organisations. Good practices
were discussed on each of these topics. At the end of this conference,
the Council of Europe proposed to set up its permanent high-level
network of the police forces of the all member States.
Note
83. The different United States police forces make continuous
efforts to define and regulate the use of force. Eleven leading
law enforcement and labour organisations gathered to elaborate guidance
to law enforcement officers on de-escalation techniques, use of
less-lethal force and deadly force. Their National Consensus Discussion
Paper on Use of Force reflects the common understanding between
these organisations on what is the best for law enforcement officers.
It serves as a template for law enforcement to compare, contrast,
and enhance their existing policies. The National Institute of Justice
of the United States Department of Justice pays particular attention
to this document.
Note
84. The United Kingdom continues to confront many challenges in
handling riots and mass protests. Some of them followed the allegations
that the police regularly used excessive force, sometimes with lethal consequences.
This determined the authorities to conduct studies and develop policies
in finding the causes of such police misbehaviour. The UK Home Office,
for example, publishes the statistics and overviews of the use of
force incidents and regularly reviews the reporting mechanisms.
Note
85. GODIAC, a project funded by the European Union and co-ordinated
by the Swedish National Police Board, identified good practices
in policing political manifestations. The project learned from ten
field studies and proposed recommendations in knowledge, education,
communication, dialogue, facilitation, differentiation, strategy
and tactics, command, control, planning and organising policing,
etc. Its methodology to evaluate police actions is a valuable tool
to assess the proportionality and necessity of force applied in
a particular situation.
Note
86. As suggested by experts, States should improve the protection
of whistle-blowers in law enforcement agencies, which often function
as closed institutions with strong auto-protective reflexes. The
benefit of whistle-blowing in any democratic institution was underlined
by the Assembly’s
Resolution
2300 (2019) and
Recommendation
2162 (2019) “Improving the protection of whistle-blowers all over
Europe”.
87. Other suggestions by our experts include the establishment
of analytical sections in the police force, increasing the transparency
of law enforcement agencies and the publicity of the decision-making
process on the use of force, improving professional training of
police officers, and placing law enforcement agencies under increased
parliamentary oversight. All these and other suggestions could be
examined during the drafting of the future Committee of Ministers’
recommendation on the use of force in policing.
6 Conclusions
88. The Black Lives Matter movement
proved that the excessive use of force by police was not a simple isolated
incident but a systemic pattern. Similar police brutalities happened
in Europe, catalysing riots, protests, and wide-spread violence.
It is even more worrying that, in some situations, the police caused
such mass disorders under pressure from the government to disperse
peaceful protests. This situation can no longer be tolerated and
needs an urgent response.
89. Many factors contribute to such systemic use of excessive
force. Societies have evolved and become more complex and unpredictable.
States have invested heavily in the militarisation of the police,
thus increasing their coercive capabilities. Police officers have
not been properly trained to handle large-scale events and protect
human rights in the current realities. Even if international legal
instruments prohibit the use of excessive force, police sometimes
regard them as non-binding. National law that is in conformity with
international standards must be systematically enforced in order
to ensure that the principle of proportional use of force and the
absolute prohibition of torture, inhuman, or degrading treatment
are respected in actual practice.
90. Therefore, I recommend two solutions to fight and prevent
excessive use of force by law enforcement officers. The Committee
of Ministers to adopt a new recommendation specifically on the use
of force in policing and review its earlier recommendations on police
ethics and the fight against impunity in line with the current set
of international standards in this area. The Committee of Ministers
should also sponsor a process of collecting good policing practices
and adopting guidelines for the implementation of the said recommendation. The
logical next step would be to consider launching the drafting process
for a new Council of Europe Convention on the prevention of excessive
police violence, codifying the highest standards and best practices in
this field, with a strong follow-up mechanism.
91. Member States should use the relevant international legal
instruments on policing and use of force, including the existing
and future Committee of Ministers recommendations and guidelines
as models to improve their domestic legislation and practices.
