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Every complaint matters
Every Complaint Matters:
Human Rights Commissioner’s Opinion concerning independent and effective determination of complaints against the police
Graham Smith
Lecturer in Regulation: Regulation, Security and Justice Research Centre, School of Law, University of Manchester
Tel. + 44 (0)161 275 3592
Fax. + 44 (0)161 275 4724
Abstract
Police complaints are a developing area of European human rights law and criminal justice policy. In response to the risk of cultures of police impunity emerging in some European states the Council of Europe Commissioner for Human Rights launched a police complaints initiative in 2008. Written by the consultant to the Commissioner this paper examines his recently published Opinion concerning independent and effective determination of complaints against the police. Firstly, an overview is presented of the different types of complaints mechanism currently operating across Europe. This is followed by an outline of the five police complaints principles developed in the jurisprudence of European Court of Human Rights and explanation of the two-tiered citizen oversight approach advocated in the Commissioner’s Opinion. The paper concludes with a discussion of the importance of the principles as a means for ensuring that every police complaint is handled appropriately and proportionately.
Keywords: Citizen oversight; Culture of impunity; Effective investigation; Human rights; Police complaints.
Introduction
Since the United Nations (UN 1979) adopted a Code of Conduct for Law Enforcement Officials, augmented by the European Code of Police Ethics (Council of Europe 2001), the operation of a fair and effective system for dealing with complaints against the police has come to be recognised as a core component of democratic and accountable policing. Both of these international treaties include provision for effective and impartial complaints procedures (Article 8 in the UN Code and Paragraph 61 in the European Code) and recommend that contracting states incorporate the principles laid down in their national legislation.
All allegations of misbehaviour against a police officer, ranging from criminal conduct to incivility, are subject to complaints procedures. Understandably, serious cases of misconduct, including killing, brutality and human rights abuse, are a cause of major public concern and give rise to demands for greater police accountability. The European Court of Human Rights (ECtHR), the Committee for the Prevention of Torture (CPT) and the Commissioner for Human Rights (CHR) are responsible for protecting human rights in the 47 member states of the Council of Europe. In recent years these three Strasbourg institutions, along with Amnesty International (2009) and Human Rights Watch (2009), have been especially vocal on the subject of police impunity for misconduct and the need to investigate complaints.
The right to life and the prohibition of torture and inhuman or degrading treatment or punishment are protected under Article 2 and 3 of the European Convention on Human Rights (ECHR), respectively. The Strasbourg jurisprudence imposes procedural obligations on contracting states to effectively investigate death or serious injury that occur as a consequence of police activity.[1] The ECtHR regularly explains the reason for this requirement; in the case of Assenov v Bulgaria[2] for example:
.. where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article3 … there should be an effective official investigation. This investigation, as with that under Article2, should be capable of leading to the identification and punishment of those responsible... If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity.
In its 2008 Report Amnesty International (2009: 29) declared ‘failure to conduct prompt, thorough and impartial investigations perpetuated the culture of impunity’ in Council of Europe states such as Bosnia and Herzegovina, Moldova, Spain, Russia, Turkey, and Ukraine. The ECtHR gives a breakdown of ECHR violations by each member state in its annual reports. Starting in 2003 violations of Article 2 and 3 for lack of an effective investigation were included as separate categories, and figures for the six year period up until 2008 are presented below in Table 1.[3]
Table 1. Lack of effective Article 2 or 3 investigation violations by country: 2003 - 2008[4]
2003 / 2004 / 2005 / 2006 / 2007 / 2008 / TotalAzerbaijan / 1 / 1
Bulgaria / 1 / 3 / 1 / 4 / 4 / 4 / 17
Croatia / 1 / 1
France / 1 / 1 / 2
Georgia / 2 / 1 / 1 / 4
Greece / 1 / 1 / 2 / 2 / 6
Hungary / 1 / 1 / 2
Lithuania / 1 / 1
Luxemburg / 1 / 1
Moldova / 2 / 4 / 2 / 8
Netherlands / 1 / 2 / 3
Poland / 1 / 1 / 1 / 3
Romania / 1 / 2 / 2 / 3 / 7 / 15
Russia / 5 / 8 / 15 / 52 / 80
Slovenia / 1 / 1 / 2
Spain / 1 / 1
Switzerland / 1 / 1
FYR Macedonia / 1 / 3 / 4
Turkey / 4 / 20 / 27 / 22 / 39 / 40 / 152
Ukraine / 2 / 1 / 1 / 2 / 7 / 13
United Kingdom / 1 / 5 / 6
Total / 10 / 28 / 33 / 48 / 82 / 119 / 323
During this period the number of violations for failure to conduct an effective investigation has dramatically increased each year and a total of 21 states have been found to be in breach of their obligation to investigate. Turkey, a Council of Europe member state for more than 60 years, is the principal offender and has been consistently criticised for its poor human rights record, particularly in regard to Kurdish peoples’ claims to political independenceand cultural expression (Commission of the European Communities 2008; Human Rights Watch 2008). Bearing in mind that it may take more than ten years for an application to come before the ECtHR, an important reason for the recent trend is the accession of post-Communist statesin the early to mid-1990s. Russian involvement in the Chechnya conflict (Bowring 2009) and the treatment of Roma people across Eastern Europe are major causes of concern for the Strasbourg authorities (CHR 2009)
Established by Article 1 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (Council of Europe 1987) the CPT conducts regular visits to member states to examine how people detained in custody are treated. Whereas the ECtHR acts retrospectively to protect human rights by issuing judicial pronouncements the CPT’s non-judicial work is intended to be proactive and preventive (CPT 2006). The CPT has a wide range of powers to examine detention conditions including access to official premises and documents and the right to talk to detainees in private. Following visits the CPT reports its findings, requests additional information, makes recommendations to the government of the host State and invites a response. With the host State’s permission the CPT’s Report and the government Response may then be published. The 14th General Report of the CPT’s Activities (CPT 2004) describes some of the substantive issues connected with combating impunity it has raised with states following visits. These include, for example, the absence of a legal obligation to investigate allegations of ill-treatment, information received that complaints reported to the authorities had not been investigated and that evidence of ill-treatment had been disregarded.
In light of ECtHR and CPT concerns, and his own observations when visiting member states, the CHR, Thomas Hammarberg, launched a police complaints initiative at an Expert Workshop in Strasbourg in May 2008 (CHR 2008). This was followed by publication of the Opinion concerning independent and effective determination of complaints against the police (hereafter Opinion) (CHR 2009a) giving guidance to member states about how complaints may be handled appropriately and proportionately. As an accompaniment to the European Code of Police Ethics the Commissioner’s Opinion represents an important contribution to the development of policy. It advances discourse by promoting a holistic approach to police complaints based on the principle that every complaint matters; that includes serious complaints of the type that come before the ECtHR and simple and straightforward grievances that the police have to deal with on a daily basis. The Opinion achieves this by enumerating five principles for the effective investigation of serious complaints in accordance with the jurisprudence of the ECtHR and recommending member states create an independent police complaints body with responsibility for the oversight of all complaints.
This paper examines the rationale of the Human Rights Commissioner’s Opinion. Firstly, abrief overview is given of the different types of police complaints mechanism that currently operate across Europe. Considered alongside the information presented in Table I, above, this overview suggests there is a need to disseminate best practice. This is followed by an outline of the five ECHR effective police complaints principles presented in the Opinion, which member states are obliged to adhere to in the event of death or serious injury. Perhaps the Opinion’s most important contribution to policy development, recommendation of a two-tier complaints system based on the five principles and under the auspices of a citizen oversight body,is then explained.The paper concludes with discussion of the importance of the principles and citizen oversight as a means for ensuring that every police complaint is handled appropriately and proportionately.
European police complaints mechanisms
Police misconduct has attracted much controversy around the globe resulting in a rich international police complaints discourse (Goldsmith and Lewis 2000; Gottschalk 2009; Prenzler 2009; Punch 2009; Walker 2005). A standard research approach is to categorise systems according to the degree of police and non-police engagement in complaints investigations (Goldsmith 1988; Prenzler and Ronken 2001). Mapping European systems by this method is problematic for several reasons. Naturally, there are language barriers that inhibit access to a contemporary body of comparative policy or research literature for the entire continent. Keeping up-to-date with developments is even more difficult given that ECtHR judgments are binding and states are required to take general measures in order to implement rulings.[5] A consequence of so many recent findings against states for violation of their obligation to investigate under Article 2 or 3 is that this is a rapidly developing area of European criminal justice policy and non-police procedures have been introduced alongside internal mechanisms in many jurisdictions. Another obstacle to categorising national police complaints systems is the existence of more than one public police service in many countries.
For these reasons, rather than attempt to catalogue European police complaints systems a brief typological sketch of the different mechanisms currently used across Europe is presented here. This overview is based on several sources: published reports and government responses (dating back to January 2007) of visits by the CHR and CPT; documents of the Department for the Execution of Judgments of the European Court of Human Rights of the Council of Europe Committee of Ministers; the world wide web page of the European Partners Against Corruption (EPAC), an association of national police oversight bodies;[6] where available, the world wide web pages of national organisations with responsibility for police complaints; and Amnesty International and Human Rights Watch reports published in 2007 and 2008. Five principal types of police complaints mechanism operate across Europe, described here as - internal police; ministry for police; public prosecutor; ombudsman; and citizen oversight.
Internal police
As the name implies the police have responsibility for all aspects of an investigation in internal police mechanisms. This includes recording and allocation, appointment of the Investigating Officer responsible for managing the investigation and carrying out the investigation.[7] This is the traditional type of complaints machinery and has operated with or without statutory authority since the formation of modern police services. The other four types of mechanism involve various degrees of non-police engagement in procedures and have largely been created since the turn of the millennium.
There is provision for an internal police mechanism to investigate complaints in every member state of the Council of Europe. Concerns have been raised by human rights monitoring bodies with the operation of internal police procedures, including investigations managed by bodies external to the police and carried out by the police, in several European states.[8] For example, the CHR (2008a:14) commented that internal procedures were a ‘clearly insufficient’ response to allegations of ill-treatment in Armenia and called for greater independence in the investigation of complaints in Germany (CHR 2007); the CPT (2007) made a similar recommendation following a visit to Spain; and in 2007 the Committee of Ministers (2007) passed an interim resolution upbraiding Bulgaria for failure to implement general measures to address a series of lack of effective investigation violations.
Ministry for police
In some states there is a police complaints office or section in the government department responsible for policing, usually the Ministry of Interior, that is separate from the police sub-department. Examples of the ministry for police type are, Luxembourg’s General Inspectorate of Police (established in 2000), the Netherlands’ Public Order and Safety Inspectorate (2002) and Serbia’s Internal Control Sector (2005), although it started life earlier as a department of the General Directorate of Police. These bodies rely to a greater or lesser extent on police officers (whether serving, seconded or retired) to manage and/or carry out complaints investigations. Concerns have been raised with the effectiveness of such mechanisms in some countries and the CHR has called for the introduction of an independent monitoring body in Austria where the Federal Bureau of Internal Affairs (established 2001) operates alongside the police (CHR 2007a) and has urged the Netherlands to create an independent external mechanism (CHR 2009b). Turkey’s continuing failure to meet its obligations to protect against police abuse of human rights has been well-documented despite the introduction of non-police complaints procedures (Committee of Ministers 2008; Goldsmith 2005).
Public prosecutor
A practice, particularly favoured in Scandinavian states, is for the public or state prosecutor to investigate criminal complaints against police officers with various degrees of police involvement. In Iceland and Slovenia the public prosecutor may call on the police to carry out investigations, and in The Netherlands special-duty police officers in the State Criminal Investigation Department investigate on behalf of the Procurators General. Since 2005 the Norwegian Bureau for the Investigation of Police Affairs has operated as a separate prosecuting authority. It possesses powers to investigate alleged criminal offences committed by the police and refer back to the police non-criminal complaints it receives. Two-tier systems operating in Denmark, Norway and Sweden of this type, comprisinginternal police and public prosecutor investigators conducting separate investigations,have not been immune from criticism by Strasbourg’s human rights institutions (CHR 2007b, 2007c; CPT 2009). In May 2009 an Independent Committee of Inquiry which examined police control mechanisms in Norway recommended to the Ministry of Justice that a more independent system should operate for all police complaints (Norges Offentlige Utredninger 2009).[9]
Ombudsman
Originating in Sweden in the early nineteenth century the Ombudsman is an internationally respected institution that investigates citizen complaints against public servants, including the police, in many jurisdictions across Europe and beyond (Seneviratne 2002) (notably, there is no Ombudsman system in Turkey at present). As part of their general complaints responsibilities ombudsmen play a major role in jurisdictions where non-police organisations with express responsibilities for police complaints do not exist.[10](It is important to note that the Police Ombudsman for Northern Ireland and theGarda Síochána Ombudsman Commission of Ireland are citizen oversight organisations (see below). Their responsibilities are restricted to police matters and they are not to be confused with the Ombudsman systems that also operate in the two jurisdictions.) The CHR (2008b) has reported that in the Former Yugoslav Republic of Macedonia police complaints are referred to the Ombudsman after an internal police investigation has been conducted, and the Albanian Ombudsman has been described as more of an oversight body that may initiate investigations into police complaints rather than conduct them (CHR 2008c).
Citizen oversight
Also referred to as independent, external or civilian police complaints mechanisms, the generic term citizen oversight is usedin this paperbecause it moreaccurately captures the nature and purpose of institutions unconnected with civil police agencies, government, prosecuting authorities or ombudsmen. Citizen oversight bodieswith a variety of responsibilities, ranging from inspection of closed police files to full investigation of complaints, have developed in English speaking jurisdictions during the last half-century (Goldsmith and Lewis 2000; Prenzler and Ronken 2001). More recently legislation introduced in several European countries has createdcitizen oversight mechanisms which are held to represent the most developed type of police complaints system, as demonstrated by the response of international human rights institutions to their introduction (CHR 2008d; UN Committee Against Torture 2004). The longest serving citizen oversight body is currently Belgium’s Standing Police Monitoring Committee, also known as Comité P. Established in 1991 Comité P is answerable to Parliament and has powers to inspect and monitor the police, and investigate complaints. Portugal’s Inspecção-Geral da Administração Interna (IGAI)[11] and France’s Commission Nationale de la Déontologie de la Sécurité (CNDS)[12] operate in a similar capacity although without express powersto investigate complaints. Three citizen oversight bodies with powers to manage and conduct investigations became operational in 2007; the Independent Authority for the Investigation of Complaints and Allegations Against the Police for Cyprus;[13] the Independent Police Complaints Commission for Hungary; and the Garda Síochána Ombudsman Commission (GSOC) for Ireland.[14] Arguably the most developed citizen oversight bodies equipped with investigation powers in Europe are in the United Kingdom: the Police Ombudsman for Northern Ireland (PONI, established 2000) and the Independent Police Complaints Commission for England and Wales (IPCC, established 2004)(Seneviratne 2004).[15] The PONI is entirely responsible for complaints made against police officers serving with the Northern Ireland Police Service.[16] The IPCC is the third citizen oversight body to operate in England and Wales’s since 1977 (Smith 2006) and is described as the ‘guardian’ of the police owned complaints system (Smith 2009a).[17]
Commissioner’s Opinion
The overarching aim of the CHR’s complaints initiative is to provide guidance to European states for meeting their obligation to protect against police abuses of human rights. The primary cause of the problem is considered to be the risk of a culture of police impunity emerging in several states (CHR 2007d). The Opiniondraws on the jurisprudence of the ECtHR and the experiences of police complaints practitioners, particularly those engaged in citizen oversight bodies, to outline a framework for comprehensively handling every type of police complaint (CHR 2008).