INCREASING HUMAN RIGHTS PROTECTION IN
THE POLICE INVESTIGATION PROCES
Dr. N. Uildriks
A proper system of defence is crucial in ensuring that the rights of defendants are upheld. The nature and quality of policing, and in particular the manner in which police carry out criminal investigations, set the parameters for the degree that suspects’ rights are upheld. It is thus in such a context that my contribution here will focus on some of the issues that relate to the quality of criminal police investigations that are of paramount importance.
My presentation is based primarily on the book Policing Post-Communist Societies; Police-Public Violence, Democratic Policing and Human Rights that I wrote together with my colleague Piet van Reenen and which was published October 2003. This study involved a comparison of the police in different countries: Russia, Lithuania, Poland, Bulgaria and Romania. It also involved a study of Mongolian investigative practices and I will specifically draw upon the findings of this study.
With an emphasis on human rights and endeavours on human rights within the criminal justice system (of which our meeting here today is a clear example) Chinese society, the criminal justice system and the police are all clearly entering a transition phase of sorts. In this presentation I will discuss some of the relevant themes from the experiences from the above-mentioned post-communist societies. I will argue here that an important venue for improving the rights of suspects is to look at the issue in a somewhat broader context and making use of the experiences of some post-communist societies.
Some characteristics of policing in post-communist societies
A key issue within post-communist societies is that of legitimacy, or rather the problematic nature of legitimacy of policing. The police are still regarded by many regarded with deep suspicion as a remnant of a repressive past in which the police were servants of the state and communist party and seen as such. In the current stage of development in many former communist societies since 1989 from a repressive to a more democratic and possibly human rights oriented style of policing, both the police and the public are uncertain as to what exactly is to be expected of the new police, or to be more exact, there exists uncertainty as to what exactly constitute legitimate policing functions. With people experiencing new liberties under the new economic and political circumstances police interventions in a host of areas are more easily regarded as no longer acceptable and likely to call for resistance.
One important change that can be found in those communist societies that have moved in the direction of a democratic political constellation is that the police are no longer in the service of the communist state and party, but at least in principle are to be held accountable as part of the rule to a judiciary, which may or not be more independent observers of the rule of law than used to be the case, rather than executors of the wishes of the communist state and part.
In our country studies in Lithuania and Russia we found a deeply demoralized rank-and-file feeling deeply isolated both within society (lack of trust/ also lack of cooperation from the public) at large but also feeling mistrusted by the judiciary and procuracy. Such feelings of isolation and mistrust are compounded by the working circumstances under which police have to operate, with specifically (i) very low police wages (ii) poor equipment (iii) little or no adequate training (iv) limited transport facilities (cars and petrol).
As a result of poor working conditions many officers were seeking to leave the police after few years to go to private sector. In the current situation this means that with a largely demoralized workforce the chances for improvement in terms of the quality of service provided in the daily realities of policing are likely to be somewhat elusive.
Lessons from the experiences in post-communist societies
In this presentation I will focus especially on the conclusion and implications of our country comparisons that are relevant for our theme today: opportunities and impediments democratic and human rights oriented policing
Studies from such organizations such as Human rights Watch and Amnesty International tend to emphasize the importance of the issue of impunity, seeing it both as a cause of police human rights violations and an end to impunity as an important if not THE most important remedy to increasing police adherence to human rights.
Especially in societies in transition from authoritarian and repressive regimes to democracy, conviction of officers for related offences can be held to be of considerable symbolic significance, in that this indicates to the public that the police are not ‘above the law’ but are instead part of society and subject to the rule of law like everybody else. It is important during the transition of a former authoritarian state into one in which its institutions function in accordance with democratic principles and the rule of law; during transition to a situation in which citizens no longer feeling powerless in the face of a state that is in essence omnipotent and in which people have no real redress of possible abuse.
Our country studies indicate that the impact of impunity on police adherence to human rights standards is rather hard to establish. Poland seems to have low numbers of serious police violence and little if no torture in spite of the comparatively low numbers of criminal convictions, whereas the opposite is the case in Russia, namely a high number of criminal convictions --at least sufficient to shed doubt on a popular conception of Russia suffering from near total impunity in connection to police abuse-- but still considerable police abuse and even torture.
Our research findings suggest that a one-sided emphasis on ending impunity as the panecea to all police human rights violations may in the middle and long term to little to improve the situation. One point to make in connection with the notion of ending impunity concerns the difficulty in the realities of policing of securing criminal convictions of officers guilty of police abuse. In our book we pay considerable attention to the point. However, current insights too into the functioning of police complaints procedures in contemporary Western societies point to the limits of the impact of the threat of criminal prosecution on curbing police human rights violations. In the Eastern European context, this means that its influence can be expected to diminish, once initially serious institutionalised police abuses have been curbed and are no longer regarded by police, government and society as justifiable or condonable. One key reason is that police officers will develop counter-strategies to diminish the possible risks of being criminal convicted: in this context here I am not able to elaborate this point further.
Professionalization of Police Investigation
A key notion, I would argue here, that is crucial to improve suspects rights is that of police professionalization. In western societies this notion tends to be used in a variety of ways, not necessarily encompassing a greater emphasis on democratic and human rights oriented forms of policing and indeed often this notion is used in a way emphasizing merely greater efficiency and greater effectiveness in securing criminal convictions. In this respect there are a number of key areas where I would expect changes or improvements in a Chinese context to yield most returns in terms of increasing the level policing in terms of democratic and especially human rights orientation of the police.
i) Increasing emphasis on obtaining technical evidence
Traditionally the police in communist societies have tended to rely on confessions and criminal intelligence through interrogations. Under such circumstances the tendency is to rely on forceful methods if suspects are held to be uncooperative to police. In modern police forces evidence tends to sought for primarily through technical evidence: in recent years, for instance, increasing use is being made of dna-techniques, techniques which are not only increasingly able to provide important starting points to establish a suspect’s guilt, but are also increasingly shown to be able to prove a suspect’s innocence. France, for example, is a country where judges in the past years have increasingly started to rely on technical evidence, rather than on the statements offered by suspects or witnesses.
ii) Training officers in the use of modern interrogation techniques
Modern police forces provide special courses in which (new) police investigators are taught how make an prepare an interview-plan, how use different strategies and techniques to secure ‘voluntary’ information from suspects. The better equipped officers are in this respect, the less they will feel the need to resort to abusive interrogation techniques.
iii) Abolition of crime detection targets
As remnants of the old communist thinking crime detection targets and the setting of quotas both on individual and organizational level should be abolished. Such systems are:
- open to manipulation and abuse by management and unfair to individual officers
- contributory to an instrumental police mentality and being an impediment to a thinking in terms of rule of law and addressing problems without thinking in terms of seeking the solutions to problems out with the boundaries of the formal criminal justice system.
- especially relevant for criminal investigations, are conducive to illegal an unlawful interrogation practices, specially in countries with high crime levels
iv) Informed discretion
Introducing the notion that it the notion of the police using informed discretion (warnings or in terms of informal conflict resolution) are acceptable methods of policing (current problems: in many countries there is currently no legal basis + risk of arbitrariness especially if such discretion is exerted in the context of the demanding or accepting of bribes; I am not sure what the position is in this respect in China).
v) Setting of policing priorities
Decisions have to be made what areas police investigations are more important than in other areas of activities are most important and which less: police can’t do everything; the fact that priorities have to be set is often overlooked which is also often overlooked in the political arena and thinking in Western and post-communist societies alike about what the police should do.
vi) Police rights
Police rights in post-communist societies frequently leave much to be desired (for example when officers are accused of wrongdoing, or in the domain of social guarantees for example when being injured or police cars being damaged having to pay themselves). If police are to think in terms of guaranteeing and operating in accordance with human rights principles police have to feel their rights are taken seriously as well.
vii) Improving the quality of police management
Management skills with police forces in post-communist societies are often woefully inadequate. Particularly relevant in such context are endeavours to increase the quality of police management: integrity norms and more up to date management skills away from the kind of hierarchical and militaristic way of thinking (the carrot and stick approach) that still so often characterizes the management approach).
Improvement in all of the above areas --as part of an integrated effort to improve the quality of police investigations and professionalize the police-- are of crucial importance in raising the level of suspects’ rights. It will to increase the quality of policing with all the accompanying benefits of increasing police legitimacy and the democratic and human rights character of policing, even under political circumstances that fall short of western democratic standards.
1
School of Human Rights Research, University of Utrecht, Netherlands