Fighting and preventing excessive and unjustified use of force by law-enforcement officers
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 27 April 2022 (14th sitting) (see Doc. 15498, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr Oleksandr Merezhko). Text
adopted by the Assembly on 27 April 2022 (14th sitting).See
also Recommendation 2230
(2022).
1. The death of George Floyd in the
United States of America sparked a wave of protests against impunity for
the unlawful use of lethal force by law-enforcement officers, particularly
against people of African descent and Black people, which quickly
spread to Europe. Unfortunately, law-enforcement agencies in Europe
and elsewhere continue to be accused of using excessive force in
violation of their obligations under national and international
legal instruments.
2. The Parliamentary Assembly regrets that law-enforcement officers
in member States of the Council of Europe have used excessive force
in many cases, violating the principles of necessity, proportionality, precaution
and non-discrimination, notably in policing peaceful demonstrations
and counter-demonstrations, in handling irregular migration flows
and in restoring public order in post-conflict situations. The Black
Lives Matter movement proved that excessive use of force by police
is not only present in a number of isolated incidents but is part
of a pattern, including in Europe. In some situations, police officers
themselves caused mass disorder by infiltrating agents provocateurs
into peaceful demonstrations or by violently cracking down on peaceful
rallies by the political opposition.
3. The Assembly recalls that national and international law prohibits
any acts of torture and inhuman or degrading treatment, without
exception. This includes the excessive use of force during arrests
or the dispersal of assemblies, unnecessarily harsh restraint measures
and the forcible extraction of confessions during criminal investigations
and security operations. In accordance with international legal
instruments and the case law of international courts, law-enforcement
officers may use force only to the extent of achieving a legitimate objective
and when strictly necessary. The use of potentially lethal force
may only be permitted for very specific purposes in cases of absolute
necessity. Any use of force that violates these principles is unnecessary
and excessive, therefore prohibited.
4. The Assembly finds that the most important factor contributing
to the use of excessive force is impunity for violations of the
law and international standards. It would appear that, in some member
States, law-enforcement agencies consider relevant international
standards in this area as non-mandatory. While it may be the case
that these standards are uncodified and difficult to apply in practice,
as they are based on different international legal instruments and
the case law of international courts, it is important to stress
that the prohibition of excessive and unnecessary force is absolute
and that nothing can justify impunity and non-compliance with the
law.
5. The principles of legality, necessity, proportionality, precaution
and non-discrimination in the use of force by law-enforcement agents,
as established in the case law of the European Court of Human Rights,
must be upheld by the Council of Europe.
6. The Assembly considers that the European Convention on Human
Rights (ETS No. 5, the Convention), in conjunction with other relevant
specialised treaties such as the European Convention for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (ETS
No. 126) and the United Nations Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, form a solid normative
and institutional basis providing clear standards and principles
governing the use of force by law-enforcement officers. These standards
would, however, benefit from being brought together in a consolidated form
for clarity and ease of use. This could be done by drafting or updating
specific recommendations and guidelines to member States. The Assembly
considers that 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,
would be the logical next step following the drafting of up-to-date recommendations
by the Committee of Ministers.
7. The Council of Europe should also support its member States
by collecting and disseminating good policing practices and providing
the necessary technical support.
8. All member States should actively implement the relevant international
legal instruments governing the use of force by law-enforcement
officers, including the case law of the European Court of Human
Rights, the recommendations of the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (CPT),
the Assembly’s resolutions and the Committee of Ministers’ recommendations.
States should use these instruments as models to improve their domestic
legislation and practices to ensure better compliance with the absolute
prohibition of torture and ill-treatment. Another series of measures,
such as institutional and regulatory reforms, should be implemented
and training and changes in practice proposed.
9. The Assembly, therefore, calls on member States of the Council
of Europe and observer States, where applicable, to:
9.1 review the compatibility of
their domestic legislation and practices with the relevant international legal
principles governing the use of force by law-enforcement officers,
as derived from the case law of the European Court of Human Rights,
the recommendations of the CPT, relevant Assembly resolutions and
Committee of Ministers recommendations, as well as from United Nations’
instruments;
9.2 ensure that their national laws criminalise all acts of
torture and inhuman or degrading treatment and that such provisions
are effectively enforced in practice to prevent and punish excessive
use of force by law-enforcement officers in whatever context – in
police custody, detention, while policing assemblies, using crowd
control measures, in emergency situations, in handling irregular
migration flows, etc.;
9.3 ensure that the use of weapons and other lethal or non-lethal
tools by law-enforcement agencies is thoroughly regulated by their
national legislation, which should lay down instructions and safeguards against
abuse;
9.4 establish independent mechanisms, within or outside police
institutions, to prompt efficient, thorough and expedient investigations
into the causes of excessive use of force to ensure accountability of
those involved;
9.5 increase their efforts to fight impunity by improving
the efficiency of their judicial and prosecutorial systems, including
by providing adequate and dissuasive criminal and disciplinary sanctions
for offences associated with police brutality and excessive use
of force;
9.6 provide compensatory remedies and rehabilitation for the
victims of excessive force;
9.7 collect and codify good practices in policing and provide
special training programmes for law-enforcement officers on the
use of force and respect for human rights;
9.8 provide effective protection for whistle-blowers who expose
excessive use of force within law-enforcement agencies, in accordance
with Assembly
Resolution
1729 (2010) “Protection of ‘whistle-blowers’” and
Resolution 2300 (2019) “Improving
the protection of whistle-blowers all over Europe”;
9.9 increase the transparency of law-enforcement agencies
and the publicising of their decision-making process on using force,
including instructions given to the police by the political authorities;
9.10 consider granting national anti-torture mechanisms and
other relevant national human rights institutions the competence
to monitor the use of force by law-enforcement officers, both in
custodial and non-custodial contexts;
9.11 ensure that masked police officers, particularly during
arrests, policing of assemblies and crowd control measures, are
required to wear and display distinctive signs enabling identification;
9.12 strengthen parliamentary oversight over the activities
of law-enforcement agencies;
9.13 give priority to the execution of the judgments of the
European Court of Human Rights relating to excessive or unjustified
use of force by law-enforcement officers that have given rise to
violations of Articles 2 or 3, alone or in conjunction with Article 14,
or of Article 11, of the Convention, and take all individual and
general measures necessary to remedy the root causes of the problems
and prevent further violations.
