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Police Powers and Criminal Investigations

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The Police and International Human Rights Law

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Abstract

One of the main tasks of the police is to bring criminal suspects to justice so that they may be subjected to a criminal trial. Police action may influence in various ways the fairness of criminal proceedings. This chapter outlines those aspects of the guarantees laid down in the European Convention on Human Rights that have an impact upon the discharge of policing, with a focus on the requirements of fair criminal investigations and trials.

Prof. Jim Murdoch is a Professor of Public Law at the University of Glasgow.

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Notes

  1. 1.

    Osman v United Kingdom 1998-VIII, at para 116. Cf 6040/73, X v Ireland (1973) YB 16, 338 at 392 (withdrawal after three years of police protection against a terrorist organisation which had attempted to kill the applicant: Art 2 ‘cannot be interpreted as imposing a duty on a state to give protection of this nature, at least not for an indefinite period of time. …’); and 9348/81, W v United Kingdom (1983) DR 32, 190, at para 12 (claim that the state had not provided adequate and effective security for the population of Northern Ireland rejected on account of level of presence of security forces: Art 2 could not require ‘positive obligation to exclude any possible violence’).

  2. 2.

    Osman v United Kingdom 1998-VIII, at paras 119–121. For more recent application, see RR and Others v Hungary (4 December 2012), paras 26–32 (withdrawal of membership of a witness protection scheme potentially exposing individuals to life-threatening vengeance: violation, the Court considering the risk emanated from ‘criminal circles’).

  3. 3.

    Opuz v Turkey 2009, paras 192–198 (and at paras 132 and 149: ‘the issue of domestic violence, which can take various forms ranging from physical to psychological violence or verbal abuse … is a general problem which concerns all member states and which does not always surface since it often takes place within personal relationships or closed circuits and it is not only women who are affected; here, the conclusion was that ‘the national authorities cannot be considered to have displayed due diligence’ and thus had failed ‘in their positive obligation to protect the right to life of the applicant’s mother’). The judgment reflects the opinion of the UN Committee on the Convention on the Elimination of All Forms of Discrimination against Women in its General Recommendation no 19 that ‘gender-based violence is a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men’ and is thus prohibited under CEDAW, Art 1, and its reiteration in its combined fourth and fifth periodic report on Turkey that violence against women, including domestic violence, is a form of discrimination (CEDAW/C/TUR/4–5 and Corr.1, 15 February 2005, para 28). The judgment also reflects the CEDAW Committee’s decisions in Communications 2/2003, AT v Hungary (decision of 26 January 2005) and 6/2005, Fatma Yÿldÿrÿm v Austria (decision of 1 October 2007).

  4. 4.

    Eg Anguelova v Bulgaria 2002-IV, paras 125–131 (delay of the provision of medical assistance by police officers contributed decisively to the death of the detainee, and the case-file contained no trace of criticism of the procedure adopted in the case: violation); Taïs v France (1 June 2006), paras 82–104 (death in sobering-up cell in police station of inebriated prisoner suffering from Aids: gross shortcomings and negligence in care and supervision by police); and Jasinskis v Latvia 2010, paras 58–68 (deficiencies in health care of an individual who was deaf and mute and who had fallen down a flight of stairs after drinking with friends). Cf Scavuzzo-Hager and Others v Switzerland (7 February 2006), paras 80–86 (physical restraint used by police in arresting a violent drug addict who had lost consciousness and died three days later: no violation of the positive obligation under Art 2 to protect life as paramedics had been summoned immediately).

  5. 5.

    Paul and Audrey Edwards v United Kingdom 2002-II, paras 57–64 at para 62 (killing of applicants’ son in a police cell by another detainee who suffered from paranoid schizophrenia: violation, as information had been available which should have meant that the authorities knew or ought to have known that the other prisoner posed an extreme danger on account of mental illness, but there had been shortcomings in the transmission of this information combined with the brief and cursory nature of the examination carried out by the screening health worker, and it was ‘self-evident that the screening process of the new arrivals in a prison should serve to identify effectively those prisoners who require for their own welfare or the welfare of other prisoners to be placed under medical supervision’; the Court also found a violation of the procedural aspect of Art 2 as the authorities were under a duty to initiate and carry out an investigation, and while there had been a comprehensive inquiry, the lack of power to compel witnesses and the private character of the proceedings from which the applicants were excluded except when giving evidence thus rendered the proceedings inadequate for the purposes of the provision).

  6. 6.

    Đorđević v Croatia (24 July 2012), at para 139. Cf PF and EF v United Kingdom (dec) 2010 (premeditated sectarian protest lasting two months and designed to intimidate young schoolchildren and their parents: minimum level of severity required to fall within the scope of Art 3 reached, triggering the positive obligation on the part of the police to take preventive action; but in determining whether reasonable steps had been taken, a degree of discretion had to be accorded: here, mindful of the difficulties facing the police in a highly charged community dispute in Northern Ireland, the applicants had not shown the police had failed to do all that could be reasonably expected of them: inadmissible).

  7. 7.

    Z and Others v United Kingdom [GC] 2001-V, paras 73–75.

  8. 8.

    MC v Bulgaria 2003-XII, paras 167–187.

  9. 9.

    Plattform ‘Ärzte für das Leben’ v Austria (1988) A 139, paras 32 and 34 (no violation established in the circumstances).

  10. 10.

    Frumkin v Russia 2016, paras 102–130 (repeated police failures to provide a reliable channel of communication with the organisers of a large-scale protest in advance of the assembly, and thereafter to respond in a constructive manner to developments as the assembly was taking place; and paras 131–142: additional violation of Art 11 established in the absence of any pressing social need for arrest and detention).

  11. 11.

    Özgür Gündem v Turkey 2000-III, paras 41–46 (deliberate and concerted attacks upon journalists, distributors etc associated with the newspaper; no action taken by the state despite requests by the newspaper: the Court reiterated key importance of free expression and held the state had failed to comply with its positive duty to protect the newspaper). Cf the related cases of Yaşa v Turkey 1998-VI, paras 118–120 (attacks on newsagents considered under Arts 2 and 13); Tekin v Turkey 1998-IV, paras 57–61 (detention and ill-treatment of journalists etc: not established that loss of liberty was because of the applicant’s occupation, and consequently no violation of Art 10); and Dink v Turkey 2010, paras 66–75 and 102–139 (failure to protect life of journalist who had commented on identity of Turkish citizens of Armenian extraction: violation of Arts 2 and 10).

  12. 12.

    Austin and Others v United Kingdom [GC] 2012, para 55.

  13. 13.

    Amuur v France 1996-III, at para 50.

  14. 14.

    McKay v United Kingdom [GC] 2006-X, at para 30 [references omitted].

  15. 15.

    Cf Elci and Others v Turkey (13 November 2003), paras 680–682 (while the detention of a suspect required the authority of a prosecutor, none of the witnesses who had appeared before the Commission delegates had accepted direct personal responsibility for the decision to detain the applicants and no clear picture emerged as to the steps taken to obtain prior authorisation for their detention; there was further a complete absence of any documentary evidence showing that a request had been made to the prosecutor).

  16. 16.

    K-F v Germany 1997-VII, paras 71–73 (delay of some 45 min in releasing an individual detained to allow police the opportunity of checking identity after the maximum period of 12 hours’ detention had expired rendered the detention unlawful.) See also Jendrowiak v Germany (14 April 2011), paras 32–39 (continuation of preventive detention beyond maximum period authorised at time of placement: violation).

  17. 17.

    James, Wells and Lee v United Kingdom (18 September 2012), paras 191–195.

  18. 18.

    Bozano v France (1986) A 111, para 60.

  19. 19.

    Čonka v Belgium 2002-I, paras 35–46.

  20. 20.

    O’Hara v United Kingdom 2001-X, paras 34–35. See also Lukanov v Bulgaria 1997-II, paras 40–46 (detention of former communist prime minister of Bulgaria was in reality a form of political reprisal not justified under Art 5(1)) and Khodorkovskiy v Russia (31 May 2011), para 142 (‘outer purpose’ of deprivation of liberty differed from its real one since the applicant was apprehended formally as a witness but real intent was to charge him as a defendant).

  21. 21.

    Witold Litwa v Poland 2000-III, paras 72–80.

  22. 22.

    Stögmüller v Austria (1969) A 9, Law, para 4; cf De Jong, Baljet and Van den Brink v Netherlands (1984) A 77, at para 44: ‘whether the mere persistence of suspicion suffices to warrant the prolongation of a lawfully ordered detention on remand is covered, not by [this sub paragraph] as such, but by Article 5(3), which forms a whole with Article 5(1)(c) … to require provisional release once detention ceases to be reasonable …’.

  23. 23.

    A v France (1993) A 277-B, paras 38–39 (unauthorised interception). See also MM v Netherlands (8 April 2003), paras 44–46 (recording of telephone conversation by one party with the assistance of the police but in the absence of preliminary judicial investigation and an order by an investigating judge as required by legislation: violation).

  24. 24.

    Roman Zakharov v Russia [GC] 2015, at paras 228–231 (thus ‘detailed rules on interception of telephone conversations [are necessary], especially as the technology available for use is continually becoming more sophisticated’.

  25. 25.

    Gillan and Quinton v United Kingdom 2010, paras 76–87.

  26. 26.

    For early examples, see Sunday Times v United Kingdom (no 1) (1979) A 30, para 59; Handyside v United Kingdom (1976) A 24, para 48.

  27. 27.

    Handyside v United Kingdom (1976) A 24, para 49.

  28. 28.

    Peck v United Kingdom 2003-I, paras 76–87. See further Edwards (2005), pp. 91–114. Cf Case 1 S 377/02, [2004] NJW 1473, [2004] EuroCLY 1332 [Germany] (legislation permitting CCTV installation had to be clear and unambiguous, and the authorities had to show the necessity of installation and the absence of alternative means of surveillance); Anklagemyndigheden v T [2005] UfR 2979V, [2005] EuroCLY 1709 [Denmark] (prohibition of publication on the internet of private CCTV images allowing identification of individuals upheld); and Case 2765/2005), [2006] EuroCLY 1705 [Greece] (continued use of CCTV in public places initially installed for security purposes could no longer be considered justified and hindered social and political activities). Cf Uzun v Germany 2010, paras 49–53, 64–74, and 77–81 (GPS surveillance ordered only after less intrusive methods of investigation had proved insufficient, had been in place only for a relatively short period, and the investigation had concerned very serious crimes: no violation).

  29. 29.

    S and Marper v United Kingdom [GC] 2008, paras 68–86.

  30. 30.

    McLeod v United Kingdom 1998-VII, paras 38–58.

  31. 31.

    Keegan v United Kingdom 2006-X, paras 29–36.

  32. 32.

    Gutsanovi v Bulgaria 2013, paras 125–137.

  33. 33.

    State liability may be engaged even where state officials are acting ultra vires or contrary to explicit instructions as a state is strictly liable for the conduct of its agents: cf Ireland v United Kingdom (1978) A 25, para 159; and see Sašo Gorgiev v ‘The Former Yugoslav Republic of Macedonia’ (19 April 2012), paras 48–54 (non-fatal shooting by police officer in a bar while on unauthorised leave engaged state responsibility). See also Celniku v Greece (5 July 2007), paras 51–59 (fatal shot not triggered by deliberate act of a police officer, and the use of lethal force was not attributable to the state; but violation of Art 2 in respect of inadequate planning and firearms regulation); and Gorovenky and Bugara v Ukraine (12 January 2012), paras 31–40 (fatal shootings by off-duty police officer during a private trip unconnected with any policing operation: while such private acts do not in principle engage state responsibility, in this case the authorities had issued the officer with a weapon in breach of domestic regulations and without assessing his personality).

  34. 34.

    McCann and Others v United Kingdom (1995) A 324, at para 149.

  35. 35.

    Trévalec v Belgium (14 June 2011), paras 75–87 (non­fatal shooting of journalist permitted to attend incident: violation on account of lack of vigilance in protecting journalist even although the journalist had probably not acted with all the requisite caution); and Haász and Szabó v Hungary (13 October 2015), paras 43–48 (use of firearm in circumstances that could have been potentially lethal engages Art 2).

  36. 36.

    McCann and Others v United Kingdom (1995) A 324, at para 148.

  37. 37.

    McCann and Others v United Kingdom (1995) A 324, at para 149. The central issue is thus whether the facts indicate that force has been shown to have been no more than ‘absolutely necessary’, rather than the legal standard of justification for the use of force: paras 154–155.

  38. 38.

    In principle, this assessment is a matter for the domestic courts, and the European Court of Human Rights will only depart from the findings of national tribunals where ‘cogent’ reasons suggesting domestic proceedings have been defective in examining such matters.

  39. 39.

    Andronicou and Constantinou v Cyprus 1997-VI, at paras 181–186, and 191–194.

  40. 40.

    Gül v Turkey (14 December 2000), paras 81–83. See also Oður v Turkey [GC] 1999-III, at para 83 (even if the death had been caused by the firing of a gun as a warning, ‘the firing of that shot was badly executed, to the point of constituting gross negligence, whether the victim was running away or not’); and Şimeşk and Others v Turkey (26 July 2005), paras 107–113 (while demonstrations had not been peaceful, police officers had shot directly at the demonstrators without first having recourse to less life-threatening methods); and Makbule Kaymaz and Others v Turkey (25 February 2014), paras 101–132 (use of lethal force by police seeking to carry out a lawful arrest following an anonymous tip-off but after surveillance suggesting no suspicious activity: violation as it had not been shown that there had been requisite vigilance to ensure that any risk to life was reduced to a minimum).

  41. 41.

    Bouyid v Belgium [GC] 2015, paras 100–113 (administration of slaps during police interview constituted degrading treatment: the Chamber judgment had considered the alleged behaviour as unacceptable professional behaviour but did not involve the minimum degree of humiliation or debasement to meet the Art 3 threshold as these were isolated incidents inflicted unthinkingly as a result of provocative behaviour rather than to extract confessions).

  42. 42.

    Eg Dembele v Switzerland (24 September 2013), paras 43–49 (use of batons during identity check resulting in fracture constituted a disproportionate use of force).

  43. 43.

    Ali Güneş v Turkey (10 April 2012), paras 34–44 (spraying of the applicant’s face with tear gas after arrest: violation).

  44. 44.

    Mathew v Netherlands 2005-IX, at para 180Cf Erdoðan Yaðiz v Turkey (6 March 2007), paras 39–48 (handcuffing of individual with no criminal record in public and at place of work: violation).

  45. 45.

    Deweer v Belgium (1980) A 35, at para 46; see too Eckle v Germany (1982) A 51, para 73; Foti and Others v Italy (1982) A 56, para 52.

  46. 46.

    Engel and Others v Netherlands (1976) A 22, paras 80–85.

  47. 47.

    Gäfgen v Germany [GC] 2010, at para 165.

  48. 48.

    Schenk v Switzerland (1988) A 140, paras 46–47 at para 46. Cf Lüdi v Switzerland (1992) A 238, paras 38–40 (in terms of Art 8, telephone intercept deemed necessary in a democratic society, and use of an undercover agent did not involve ‘private life’). See also Bykov v Russia [GC] (10 March 2009), paras 94–105 (assessment of admissibility and reliability of irregularly obtained intercept evidence by the domestic courts and availability of other corroborating evidence: no violation). See also Niculescu v Romania (25 June 2013), paras 122–127; Valentino Acatrinei v Romania (25 June 2013), paras 73–77; and Dragojević v Croatia (15 January 2015), paras 131–135 (defence had ability to question the validity of the evidence obtained in violation of Art 8, and while such evidence also played a limited role in securing the conviction, no violation of Art 6(1)). When the evidence is very strong, and there appears no reason to doubt its reliability, the need for supporting evidence is correspondingly weaker: Bykov v Russia [GC] (10 March 2009), para 90; and Dragojević v Croatia (15 January 2015), para 129.

  49. 49.

    Khan v United Kingdom 2000-V, paras 36–40; in the Schenk case (1988) A 140, para 53, the Court had considered it unnecessary to rule on this matter.

  50. 50.

    Allan v United Kingdom 2002-IX, paras 46–48 and 52–53.

  51. 51.

    Eg Harutyunyan v Armenia 2007-VIII, paras 58–67 (reliance on statements by the accused and witnesses who had been tortured); Zamferesko v Ukraine (15 November 2012), para 70; Kaçiu and Kotorri v Albania (25 June 2013), para 117; Ryabtsev v Russia (14 November 2013), para 91; and Cēsnieks v Latvia (11 February 2014), para 66. Cf Latimer v United Kingdom (dec) (31 May 2005) (allegations that self-incriminating statements had been made while held in an environment designed to be coercive: inadmissible). See further Harutyunyan v Armenia 2007-VIII, paras Zamferesko v Ukraine (15 November 2012), para 70; Kaçiu and Kotorri v Albania (25 June 2013), para 117.

  52. 52.

    Jalloh v Germany [GC] 2006-IX, para 99 (the administration of emetics to retrieve evidence, which could have been retrieved using less intrusive methods, subjected the applicant to a grave interference with his physical and mental integrity against his will and thereby violated both Art 3 and Art 6).

  53. 53.

    Harutyunyan v Armenia 2007-VIII, para 63: the quotation stems from the US Supreme Court judgment in Rochin v California (342 US 165 (1952)).

  54. 54.

    Gäfgen v Germany [GC] 2010, paras 162–188 at para 164, 178.

  55. 55.

    Averill v United Kingdom 2000-VI, paras 55–61 at para 59.

  56. 56.

    Salduz v Turkey [GC] 2008, paras 50–63, at paras 55 and 59.

  57. 57.

    Aleksandr Zaichenko v Russia (18 February 2010), paras 46–51 at para 47.

  58. 58.

    Allenet de Ribemont v France (1995) A 308, paras 35–41 at para 38.

  59. 59.

    Ramanauskas v Lithuania [GC] 2008-1, at paras 54–55.

  60. 60.

    Teixeira de Castro v Portugal 1998-IV, paras 34–39 at paras 36 and 39.

  61. 61.

    Ramanauskas v Lithuania [GC] 2008-1, paras 62–74 (and at para 50, noting that the Council of Europe’s Criminal Law Convention on Corruption (ETS 173(1999)), Art 23 requires states to adopt measures permitting the use of special investigative techniques).

  62. 62.

    Milinienë v Lithuania (24 June 2008), paras 35–41 at para 38 (and also distinguishing Ramanauskas v Lithuania [GC] 2008 on the ground that the applicant had enjoyed a full opportunity to challenge the authenticity and accuracy of the evidence against her). In a similar vein, see Veselov and Others v Russia (2 October 2012), at para 90 (authorities ‘should be in possession of concrete and objective evidence showing that initial steps have been taken to commit the acts constituting the offence for which the applicant is subsequently prosecuted’).

Reference

  • Edwards L (2005) Switching off the surveillance society? In: Nouwt S et al (eds) Reasonable expectations of privacy? TMC Asser Press, The Hague

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  1. University of Glasgow, Glasgow, UK

    Jim Murdoch

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  1. Brandenburg University of Applied Police Sciences, Oranienburg, Germany

    Ralf Alleweldt

  2. Brandenburg University of Applied Police Sciences, Oranienburg, Germany

    Guido Fickenscher

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Murdoch, J. (2018). Police Powers and Criminal Investigations. In: Alleweldt, R., Fickenscher, G. (eds) The Police and International Human Rights Law. Springer, Cham. https://doi.org/10.1007/978-3-319-71339-7_8

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