Dealing with Complaints against the Police in Romania, Bulgaria and Poland: A Human Rights Perspective
| DOI | 10.1177/092405190101900303 |
| Date | 01 September 2001 |
| Author | Niels Uildriks |
| Published date | 01 September 2001 |
| Subject Matter | Article |
Dealing with Complaints Against the Police in Romania, Bulgaria
and Poland: A Human Rights Perspective
Niels Uildriks'
Abstract
In this article thefunctioning
of
thepolice complaintsproceedings in Romania, Bulgaria
and
Polandis assessed
from
ahuman rights perspective. The relevant nationallaws are assessed
in terms
of
the international legal standards
and
the complaints procedures are measured
specifically against yardsticks
of
the
systems'
effectiveness
and
independence. With the
longest recentdemocratic tradition, Poland turns out to haveby
far
the mosteffective system
of
dealing with complaints against the police. This is likely to have
had
aconsiderable
impact on shaping
how
much the
new
democratic Polish police act within the rule
of
law. A
comparison
of
the three countries indicates that it is the practical operationalindependence,
rather than the
formal
structure
of
the police investigative bodies that is
of
significance in
determining whether complaints are dealt with adequately. In the Polish system, the police
investigators have an adequate capacity to carry out their work, coupled with the will to
instigate both criminal
and
disciplinaryproceedings againstpolice officers committing such
offences. It has
proved
an effective approach
for
curbingpolice human rights violations. As
such, the Polish system can serve as a model
for
otherEastern European countries that are
still confronted with institutionalisedabuse
of
human rights by the police. On account
of
its
SUccess,
Poland
now
appears to be in a situation in which the less serious abuses can also
be dealt with more informally
and
less by penally oriented approaches
found
in some
Western European models.
Introduction
In democratic societies the police are accountable under the rule
of
law. To paraphrase
O'Rawe and Moore, the rule
of
law means that policing gains its legitimacy by performing
a legal rather than a political function, and by serving the law rather than partisan politics.I
An
important element for ensuring accountability under the rule
of
law, in particular from
a human rights perspective, is the existence
of
an adequate system by which citizens can
bring complaints when they believe the police haveacted in violation
of
the rule oflaw. This
article analyses complaints systems dealing with allegations
of
police maltreatment and
torture
of
citizens in Romania, Bulgaria and Poland. In particular, I shall look at the
opportunities for victims
of
police violence to obtain redress. The adequacy
of
these
Possibilities will be judged against the background
of
international human rights law and the
Criteria(amended for our purposes) as developed in a recent OSCE-report. 2
Senior researcher at the School
of
Human Rights Research, Utrecht University. This article has been
reworked from a chapter written for a report
of
the Organisation Mondiale Contre la Torture, in which the
occurence
of
police violence
has
been investigated: Human Rights and Policing in Bulgaria, Romania and
Poland: Trying to Answer Some Important Questions, Strasbourg, Council
of
Europe, 2000. The author
would like to express his deep appreciation to Malcolm Willison for editing this article.
O'Rawe, M. and Moore, L., Human Rights on Duty: Principles
for
BetterPolicing -Tntemational Lessons
for Northern Ireland, Committee on the Administration
of
Justice, 1997, p. 96.
Preventing Torture; a Handbookfor OSCE Field Staff, 2000, www.osce.org/adihr/docs/th_book.htm.
Netherlands Quarterly
of
Human Rights, Vol. 19/3, 269-293, 2001.
~
Netherlands Institute
of
Human Rights (SIM). Printed in the Netherlands. 269
NQHR 312001
Aproblem encountered in comparing the three countries is that the secondary data and
sources available for the three Eastern European countries differ considerably. To an extent
this hampers aproper comparison
of
all facets
of
the different systems. For example, in
Poland there are extensive statistical data on the number
of
criminal prosecutions, but there
is little or no information on the actual functioning
of
the proceedings. In both respects the
situation is the reverse in Romania and Bulgaria. Differences and similarities between the
three countries thus have to be reconstructed on the basis
of
(partly) disparate sources
of
information for each
of
the countries involved. Nevertheless, in spite
of
such methodological
problems, the available data allow us to present acomparative analysis that sheds light on the
functioning
of
the different complaints systems and on their impact on the occurrence
of
police abuses.
The structure
of
this article is as follows. The first section outlines the relevant human
rights laws and the criteria for judging the system
of
accountability; subsequent sections
present an overview
of
the applicable national laws, the main characteristics and problems
of
the complaints systems, and an assessment
of
the respective systems for enforcing
accountability in the three countries. In the concluding section, the three countries are
compared.
I Assessing the Complaints Procedures
A. Relevant
Human
Rights Law
With regard to the different complaints systems in the three Eastern European countries dealt
with in this study, a number
of
human rights laws are
of
relevance.
Article 12
of
the UN Convention Against Torture (CAT) requires a State party to take
effective legislative. administrative, judicial or other measures to prevent acts
of
(police)
torture in its territory. Article 4 CAT obliges a State party to criminalise police torture in its
national legislation and make these offencespunishable by appropriate penalties; the prospect
of
criminal prosecution can be considered one
of
the most fundamental safeguards against
the torture and ill-treatment
of
prisoners. Article 12 CAT also obliges parties to carry out a
prompt
and
impartial investigation where there exist reasonable grounds for assuming that
acts
of
torture have been committed.
Principle 24
of
the United Nations Body
of
Principles for the Protection
of
All Persons
under Any Form
of
Detention or Imprisonment requires the provision
of
aprompt, free and
propermedical examination to be offered to detainedor imprisoned persons. Theseprinciples
cannot be directly enforced and have the status
of
morally binding guidelines.just as the UN
Principles on the Effective Prevention and Investigation
of
Extra-legal, Arbitrary and
Summary Executions, which set strict standards for thorough, prompt and impartial
investigations in such cases.
The right to an effective remedy in case
of
the police violation of rights and freedoms is
mentioned in Article 2(3)
of
the International Covenant on Civil and Political Rights
(lCCPR) and Article 13
ofthe
European Convention for the Protection
of
Human Rights and
Fundamental Freedoms(ECHR). Article 2(3) ICCPRalso provides the right in such instances
to ajudicial remedy, as well as the legal obligationby the competent authorities to enforce
such remedies once they have been granted. The judicial right to redress and an enforceable
right to
fair
and
adequate compensation (including rehabilitation) is provided for in Article
14(1) CAT.
270
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