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SPECIAL COURT FOR S IERRA LEONE

IN THE APPEALS CHAMBER

Before: Justice Renate Winter, Presiding Judge

Justice Jon M. Kamanda

Justice George Gelaga King

Justice Emmanuel Ayoola

Justice Shireen Avis Fisher

Acting Registrar: Binta Mansaray

Date: 26 October 2009

PROSECUTOR Against ISSA HASSAN SESAY

MORRIS KALLON

AUGUSTINE GBAO

(Case No. SCSL-04-15-A)

JUDGMENT

Office of the Prosecutor:

Christopher Staker

Vincent Wagona

Nina Jørgensen

Reginald Fynn

Defence Counsel Issa Hassan Sesay:

Wayne Jordash

Sareta Ashraph

Jared Kneitel

Elisabeth Baumgartner

Régine Gachoud

Defence Counsel for Morris Kallon:

Charles Taku

Kennedy Ogeto

Defence Counsel for Augustine Gbao:

John Cammegh

Scott Martin

Case No. SCSL-04-15-A 26 October 2009

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ich, rather

than stipulating a necessary relationship between the objective of a common purpose and its

1 Against this backdrop, the Appeals Chamber now proceeds to determine whether the

Trial Chamber found the common purpose of the JCE in the present case to be criminal or non-

where it “is intended to be implemented through the commission of crimes within the Statute.”668

This is consistent with the Kvo ka et al., Krajišnik and Tadi! Appeal Judgments, all of which

require as a matter of law only that the common purpose “amounts to or involves” the commission

of a crime provided for in the ICTY Statute.669

It is also consistent with Brima et al., wh

criminal means, only requires that the latter are “contemplated to achieve” the former.670

297. For these reasons, the Appeals Chamber rejects Sesay’s submission that where the objective

does not itself amount to a crime under the Statute, the objective and the means to achieve it must

be “conflated” or “inextricably and necessarily” linked in order to constitute a common criminal

purpose.67

criminal.

(b) Did the Trial Chamber find that the common purpose was not criminal?

298. The Trial Chamber’s findings that the objective of the JCE was “to gain and exercise

political power and control over the territory of Sierra Leone, in particular the diamond mining

areas” and that this objective in and of itself was not criminal under the Statute are undisputed.

Rather, Sesay and Kallon posit that the error o

672

f the Trial Chamber lies in finding that the non-

criminal objective constituted the common purpose of the JCE,673

whereas Gbao contends that the

within the meaning of the law of [JCE].”675

Beyond their references to the finding that the objective

definition of the common purpose is unclear.674

299. The position of Sesay and Kallon is directly contradicted by the Trial Chamber’s finding

that the objective to control the territory of Sierra Leone “does not amount to a common purpose

668 Marti! Appeal Judgment, para. 123, quoting Marti! Trial Judgment, para. 442. 669 Krajišnik Appeal Judgment, para. 704; Kvo ka et al. Appeal Judgment, para. 81; Tadi! Appeal Judgment, para. 227

(ii). See also Tadi! Appeal Judgment, para. 198, quoting Trial of Franz Schonfeld and others, British Military Court,

Essen, June 11th-26th, 1946, UNWCC, vol. XI, p. 68 (summing up of the Judge Advocate) (“if several persons

combine for an unlawful purpose or for a lawful purpose to be effected by unlawful means, and one of them in carrying

ho are present […] provided that the death was caused by a member of

deavours to effect the common object of the assembly.”) [emphasis added].

s 76, 80.

, 1985.

n Appeal, paras 27, 36, 39, 40.

out that purpose, kills a man, it is murder in all w

the party in the course of his en670 Brima et al. Appeal Judgment, para671 Sesay Appeal, paras 89-96. 672 Trial Judgment, paras 1979673 Sesay Appeal, para. 82; Kallo674 Gbao Appeal, para. 88. 675 Trial Judgment, para. 1979.

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nion

is misguided since it does not underpin any of the findings that resulted in Sesay’s conviction.

t allow for

JCE liability based on a non-criminal common purpose or absent the requisite mens rea.

e territory of Sierra Leone included the commission of crimes against the civilian

population.

was not criminal,676

and a finding regarding Gbao’s participation in the JCE,677

neither Sesay nor

Kallon points to other findings of the Trial Chamber to support their claim. Sesay refers to the

statement in the Dissenting Opinion of Justice Boutet that “the purpose is such that it is not even

reflective of a crime … under the jurisdiction of this Court.”678

Reference to the Dissenting Opi

300. The Appeals Chamber therefore dismisses Sesay’s and Kallon’s submissions that the Trial

Chamber found the objective to gain and exercise political power and control over the territory of

Sierra Leone, in particular the diamond mining areas, constituted the common purpose of the JCE.

Having thus found, the next question for determination is what common purpose the Trial Chamber

found, and whether such purpose was criminal. The Trial Chamber considered that the non-criminal

objective to control the territory of Sierra Leone “may amount to a common criminal purpose”

where it “is intended to be implemented through the commission of crimes within the Statute.”679

This statement is legally correct,680

and contrary to Kallon’s submission,681

it does no

301. The Trial Chamber proceeded to find in paragraph 1980 of the Trial Judgment that the Junta

aimed “to subject the civilian population to AFRC/RUF rule by violent means”, which “entailed

massive human rights abuses and violence against and mistreatment of the civilian population”, and

in paragraph 1981 that the “AFRC/RUF alliance intended through the spread of extreme fear and

punishment to dominate and subdue the civilian population in order to exercise power and control

over captured territory.” Contrary to Gbao’s argument,682

these two findings do not characterise the

means differently; both are general findings showing that the means to achieve the objective of

controlling th

302. Paragraph 1982 of the Trial Judgment specifies what those criminal means were. Its

wording leaves no room for Gbao’s claim that the Trial Chamber wavered in its definition of the

common purpose by finding that terrorism (Count 1) might have been the objective of the common

676 Sesay Appeal, paras 82, 88; Kallon Appeal, paras 27, 40.

ng Partially Dissenting Opinion of Justice Boutet, para. 16.

ent, para. 80; Marti! Appeal Judgment, para. 123.

682 Gbao Appeal, paras 89, 90.

677 Kallon Appeal, para. 36, citing Trial Judgment, para. 2013. 678 Sesay Appeal, para. 82, quoti679 Trial Judgment, para. 1979. 680 Brima et al. Appeal Judgm681 Kallon Appeal, para. 40.

3941

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d under Counts 1 to 14 were within the [JCE] and intended by the

participants to further the common purpose” makes it abundantly clear that all those crimes were

mmon criminal purpose, and Kallon’s

present argument that the Trial Chamber allowed for JCE liability regardless of tion

between such an ideology and the crimes charged” was immediately followed by reference to an

purpose, rather than a means.683

The statement that “[t]he means to terrorise the civilian population”

included the crimes under Counts 3 to 11 refers to the fact that the underlying acts of terrorism

partly comprised conduct also charged under Counts 3 to 11.684

Furthermore, the statement is

immediately followed by the finding that “[a]dditional means to achieve the common purpose”

included the crimes charged under Counts 2 and 12 to 14, which clarifies that the acts of terrorism

(and the underlying conduct) were found to be among the means to achieve the common purpose.

Against this background, the conclusive finding in paragraph 1982, partly repeated in paragraph

1985, that “the crimes charge

found to constitute means.685

303. Contrary to Sesay’s submission, the Trial Chamber considered whether these crimes were

committed in a “random and un-orchestrated manner.”686

It found that the “AFRC/RUF forces

cooperated on armed operations in which crimes against civilians were committed” and that the

“conduct of the operations” demonstrated the wholly disproportionate means by which the Junta

intended to suppress all opposition.687

It further took into account “the entirety of the evidence and

in particular the widespread and systematic nature of the crimes committed” and found the

existence of a common criminal purpose and that its participants used the perpetrators to commit

crimes in furtherance of it.688

Sesay’s claim that the Trial Chamber failed to assess whether there

was a “discernable pattern” to the crimes indicative of a co

the affilia

between the accused and the perpetrator, thus lack merit.689

304. Gbao argues that the common purpose in actual fact consisted of the RUF ideology.690

The

Appeals Chamber disagrees. The paragraphs Gbao invokes concern his intent and participation in

the JCE, which the Trial Chamber examined only after it had reached its findings on the existence

and nature of the common purpose.691

Indeed, the mention in paragraph 2013 of “a criminal nexus

683 Gbao Appeal, para. 91. 684 Trial Judgment, para. 110. 685 Contrary to Gbao’s claim. Gbao Appeal, para. 92. 686 See Sesay Appeal, para. 120. See also infra, paras 340-350. 687 Trial Judgment, paras 1980, 1981. 688 Trial Judgment, para. 1992. 689 Sesay Appeal, para. 120; Kallon Appeal, para. 39. See also infra, paras 393-455. 690 Gbao Appeal, para. 93.

3940

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ith the finding that the criminal purpose of the JCE was common

to both the RUF and AFRC.695

(“Common Criminal Purpose”).696

Gbao’s Sub-Ground 8(f) is therefore dismissed in its entirety.

ber properly found a common criminal

purpose, there is no basis for these remaining submissions.

4. Conclusion

ICTY case in which the accused’s participation in a JCE consisted of providing the legal, political

and social framework in which the participants of the JCE worked and from which they profited.692

The end of paragraph 2013 sets out the legal requirements necessary to establish the mens rea of

Gbao in particular. Similarly, the findings that the crimes “were in application and furtherance of

the goals stipulated in the ideology of taking power and control of Sierra Leone” and that “the

revolution was the ideology in action”, in paragraphs 2029 and 2032, respectively, signify that the

ideology imparted by Gbao693

“played a key and central role in pursuing the objectives of the RUF”

and was a “propelling dynamic behind the commission” of the crimes.694

As such, the RUF

ideology was in the Trial Chamber’s view conducive to the commission of crimes and furthered the

means of the common purpose. However, it was not itself found to have constituted the common

purpose. Instead, Gbao’s connection to the ideology was one factor that evidenced his participation

and intent. This is reconcilable w

305. For these reasons, the Appeals Chamber concludes that the Trial Chamber found a common

criminal purpose. It consisted of the objective to gain and exercise political power and control over

the territory of Sierra Leone, in particular the diamond mining areas, and the crimes as charged

under Counts 1 to 14 as means of achieving that objective

306. The remaining submissions of Sesay and Kallon are premised on the assertion that the Trial

Chamber found the common purpose to be non-criminal.697

Because the Appeals Chamber has

dismissed this assertion above, holding that the Trial Cham

Sesay’s Ground 24 and Kallon’s

Ground 2. Gbao’s Sub-Ground 8(f) is dismissed in its entirety.

307. The Appeals Chamber dismisses the above parts of

691 Trial Judgment, paras 2009-2049. 692 Trial Judgment, para. 2013, citing Simi! Trial Judgment, para. 992. 693 Trial Judgment, paras 2010, 2011, 2035. 694 Trial Judgment, para. 2031. 695 See Gbao Appeal, para. 94. 696 Trial Judgment, paras 1979-1985. 697 Sesay Appeal, paras 82, 83, 88, 103. See also Kallon Appeal, paras 36, 39.

3939

169


consequ extend

JCE bey

ence to the Accused in particular.1229

Gbao replies that the Trial Chamber’s findings

ond its logical limits and fairness to the accused.1230

3. Discussion

(a) Applicable law

im ily the mens rea elements for JCE 1 and JCE 3. Under JCE 1, also

mmission of

the crime in question and intended to participate in a common plan aimed at its commission.1235

In

That is why it is often referred to as the “extended” form of JCE.1238

However, before an accused

474. The actus reus is essentially common to all three categories of JCE.1231

What primarily

distinguishes them from each other is the mens rea required.1232

As found by the ICTY Appeals

Chamber in Tadi!:1233

With regard to the first category, what is required is the intent to perpetrate a certain

crime (this being the shared intent on the part of all co-perpetrators). [“JCE 1”]

With regard to the second category (which … is really a variant of the first), personal

knowledge of the system of ill-treatment is required (whether proved by express

testimony or a matter of reasonable inference from the accused’s position of authority), as

well as the intent to further this common concerted system of ill-treatment. [“JCE 2”]

With regard to the third category, what is required is the intention to participate in and

further the criminal activity or the criminal purpose of a group and to contribute to the

joint criminal enterprise or in any event to the commission of a crime by the group. In

addition, responsibility for a crime other than the one agreed upon in the common plan

arises only if, under the circumstances of the case, (i) it was foreseeable that such a crime

might be perpetrated by one or other members of the group and (ii) the accused willingly

took that risk.1234 [“JCE 3”]

475. At issue here are pr ar

known as the “basic” form of JCE, liability attaches where the accused intended the co

other words, JCE 1 liability attaches to crimes within the common criminal purpose.1236

By

contrast, JCE 3 liability attaches to crimes which are not part of the common criminal purpose.1237

1229 Prosecution Response, para. 5.74, citing Trial Judgment, para. 266. 1230 Gbao Reply, paras 68, 72, 73. 1231 Brima et al. Appeal Judgment, para. 75; Milutinovi! et al. Trial Judgment, Vol 1, para. 107. See also e.g. Vasiljevi!

ara. 83.

Appeal Judgment, para. 100. 1232 Milutinovi! et al. Trial Judgment, Vol 1, para. 107. 1233 Tadi! Appeal Judgment, paras 195, 220. 1234 Tadi! Appeal Judgment, para. 228. 1235 Br"anin Appeal Judgment, para. 365. 1236 Br"anin Appeal Judgment, para. 418; Marti! Appeal Judgment, para. 82. 1237 See e.g., Staki! Appeal Judgment, para. 87. 1238 See e.g., Kvo ka et al. Appeal Judgment, p

3938

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e criminal activity or the criminal purpose of a group.”1239

Therefore, both JCE 1 and

JCE 3 require the existence of a common criminal purpose which must be shared by the members of

person can incur JCE 3 liability, he must be shown to have possessed “the intention to participate in

and further th

the JCE, including in particular the accused.1240

Where that initial requirement is met, JCE 3

liability can attach to crimes outside the common criminal purpose committed by members of the

JCE or by non-JCE perpetrators used by members of the JCE if it was reasonably foreseeable to the

accused that a crime outside the common criminal purpose might be perpetrated by other members

of the group in the execution of the common criminal purpose and that the accused willingly took

that risk (dolus eventualis).1241

(b) Did the Trial Chamber err in failing to specify which category of JCE it applied?

476. The Appeals Chamber is not persuaded by Kallon’s submissions that the Trial Chamber

embers to commit crimes “that were either intended by

the members to further the common purpose, or were a natural and foreseeable consequence of the

3 Whether this alternative finding was in error is of no

consequence because on the critical question of whether Kallon possessed the mens rea required for

In particular, it found

failed to find whether JCE 1 or JCE 3 liability applied in respect of the crimes and that it instead

made its finding in the alternative, that crimes were either within or a foreseeable consequence of

the JCE.1242

477. The question of which category of JCE applies depends first and foremost on the particular

mens rea of the accused. Before turning to the Appellants’ mens rea, the Trial Chamber found that

non-JCE perpetrators were used by JCE m

implementation of the common purpose.”124

either of the JCE categories the Trial Chamber’s findings are unequivocal.

that Kallon intended all the crimes for which he incurred JCE liability, thereby finding him liable

under JCE 1.1244

1239 Tadi! Appeal Judgment, para. 228. 1240 See e.g., Staki! Appeal Judgment, paras 85, 86 (establishing that a common criminal purpose existed and that the

accused shared its intent and participated in it, before moving on to assess whether the accused could be held liable

under JCE 3 for “crimes beyond the scope of that enterprise”).

Appeal Judgment, para. 87; Tadi! Appeal Judgment, para. 228; Kvo ka

e Appeals Chamber recalls that it is not decisive whether these fellow JCE

themselves or used principal perpetrators who did not share the

paras 393-455.

08, 110.

80.

2056, 2103, 2163.

1241 Br"anin Appeal Judgment, para. 365; Staki!

et al. Appeal Judgment, para. 83. Th

members carried out the actus reus of the crimes

common purpose. See supra, 1242 Kallon Appeal, paras 54, 59, 60, 11243 Trial Judgment, paras 1992, 201244 Trial Judgment, paras 2008,

3937

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f” was announced “looting was a systemic feature of AFRC and RUF

operations”1246

and that criminal conduct was initiated pursuant to a “deliberate policy” by the

478. Kallon’s additional argument that the Trial Chamber erroneously convicted him under

JCE 2 is also without merit.1245

He references only two findings in support, which state that after

“Operation Pay Yoursel

Supreme Council.1247

These two findings are wholly insufficient to show that the Trial Chamber

departed from its express holding that it would not consider the Appellants’ liability under

JCE 2.1248

479. Kallon’s submissions therefore fail.

(c) Did the Trial Chamber err in convicting Gbao under JCE?

480. Justices Winter and Fisher dissent from the Majority’s holdings in relation to Gbao’s sub-

481. In answering this question, it is pertinent to recall that apart from Ground 8, Gbao filed a

hamber erred in fact by finding Gbao individually criminally

nimum and basic requirements of pleading Grounds of Appeal which the Appeals

grounds 8(j) and 8(k).

further 19 so-called “sub-grounds,” 8(a) to 8(s), of which sub-grounds 8(j) and 8(k) that we are now

considering, are a part.

Ground 8 reads: The Majority of the Trial Chamber erred in law and in fact in finding the existence

of a Joint Criminal Enterprise and in finding Gbao a member of the Joint Criminal Enterprise.

Sub-grounds 8(j) and (k) read:

8(j): The Majority of the Trial C

responsible using the mens rea standard under the extended form in attributing individual

responsibility.

8(k): Gbao did not share the intent with other members of the Joint Criminal Enterprise in Bo,

Kenema and Kono.

The three purported grounds are obviously vague, disjointed, imprecise and unclear. They do not

fulfil the mi

Appeal, para. 65.

udgment, paras 784, 2071.

udgment, para. 2004.

udgment, para. 385.

1245 Kallon1246 Trial J1247 Trial J1248 Trial J

3936

172


Chambe ovided

any deta ow the

alleged e fully

justified in summarily dismissing the grounds were it not for the fact that it is opportune for the

er

amber finds that crimes were contemplated by the participants of the

joint criminal enterprise to be within the common purpose. The Chamber further finds

s targeted civilians in a widespread and systematic attack

population into submission through collective punishment,

unlawful killings, sexual violence and physical violence. In addition the joint AFRC/RUF

Nowhere ged by

Gbao. It pparent

purpose ea no semblance to reality. The Ground is without merit

r dissenting, dismisses it in this short shrift.

JCE, all members of the JCE may be found criminally liable for all crimes committed that fall

within the common design. The extended form of JCE involves criminal acts that fall outside the

r has highlighted, inter alia, in paragraphs 31 and 32 supra. The appellant has not pr

ils of the alleged error of law and/or of fact and has not even attempted to state h

error of fact occasioned a miscarriage of justice. The Appeals Chamber would b

Chamber to adumbrate on the developing concept of Joint Criminal Enterprise liability in

International Humanitarian Law.

482. In support of Ground 8(j) Gbao states in paragraph 144 of his Appeal Brief: “The Majority

of the Trial Chamber erred in fact by finding Gbao individually criminally responsible as a memb

of the joint criminal enterprise by using the extended JCE mens rea against him in Bo, Kenema and

Kono Districts when all crimes found to be part of the JCE were found to have been committed

pursuant to the first form of JCE.” He cites paragraph 1985 of the Trial Judgement in support. A

perusal of the whole paragraph shows that the Trial Chamber made no such finding. Paragraph

1985 states:

The Chamber finds that during the Junta regime, high ranking AFRC and RUF members

shared a common plan which was to take any action necessary to gain and exercise

political power and control over the territory of Sierra Leone, in particular the diamond

mining areas. The Ch

that the AFRC/RUF force

designed to terrorise the

forces continued to rely on forced labour of civilians to generate revenue, used children

under the age of 15 years as fighters and generally accepted pillage as a means to gratify

the fighters.

in that paragraph did the Majority of the Trial Chamber make the finding alle

is not proper for Gbao to put words into the mouth of the Trial Chamber for the a

of manufacturing a case that b rs

and the Appeals Chamber, Justices Winter and Fishe

483. However, taking the opportunity to adumbrate on JCE, the Appeals Chamber recalls that it

has held that pleading the basic and extended forms of JCE in the alternative is now a well-

established practice of International criminal tribunals.1249

In the basic and systemic categories of

1249 See Brima et al. Appeal Judgment, para 85.

3935

173


484. The Trial Chamber found

the JCE as consisting of the

objective to gain and exercise political power and control over the territory of Sierra Leone, in

er Counts 1 to 14 as the means

of achieving1252

pant” in

the JCE that in

consequ which

were a natural and foreseeable consequence of putting into effect that criminal purpose.

486. In paragraph 1990 of the Trial Judgment, the Trial Chamber found that the RUF, including

anders began working in concert with the AFRC,

includin Borbor

KIanu, S shortly

after 25 May 1997. The Majority found that Gbao was a participant in the JCE. As stated in

ain and

ower and control over the territory of Sierra Leone, in particular the diamond

mining areas, and that Gbao contemplated the commission of crimes:

common design. An Accused who intends to participate in a common design may be found guilty of

acts outside that design if such acts are a “natural and foreseeable consequence of the effecting of

that criminal purpose.”1250

that following the 25 May 1997 coup, high ranking AFRC members and the RUF

leadership agreed to form a joint ‘government’ in order to control the territory of

Sierra Leone. The Chamber considers that such an objective in and of itself is not

criminal and therefore does not amount to a common purpose within the meaning of

the law of joint criminal enterprise pursuant to Article 6(1) of the Statute. However,

where the taking of power and control over State territory is intended to be

implemented through the commission of crimes within the Statute, this may amount

to a common criminal purpose.1251

We opine that this is a correct statement of the law.

485. The Trial Chamber defined the Common Criminal Purpose of

particular the diamond mining areas, and the crimes as charged und

that objective. The Trial Chamber further found that Gbao was “a partici

.1253

The Appeals Chamber, Justices Winter and Fisher dissenting, considers

ence Gbao, as with the other participants of the JCE, would be liable for all crimes

in particular Sesay, Kallon, Sankoh, Bockarie, Superman, Eldred Collins, Mike Lamin, Isaac

Mongor, Gibril Massaquoi and other RUF Comm

g at least Johnny Paul Koromah, Alex Tamba Brima, Bazzy Kamara, Santigie

AJ Musa Zagalo, Eddie Kanneh and others to hold power in Sierra Leone on or

paragraph 1985, Gbao shared the common plan which was to take any action necessary to g

exercise political p

mphasis added).

ra, para. 305.

1250 Tadi! Appeal Judgment, para. 204. 1251 Trial Judgment, para. 1979 (e1252 Trial Judgment, paras 1979-1985; see sup1253 Trial Judgment, para. 1990.

3934

174


person does not need to have been present at the time of the crime.

fore, the distance of Gbao to many of the crimes is not a reason for denying his

participation under the basic form. What matters is that he intended or that it was

The App

488. As to the crimes in Bo District, the Trial Chamber found in paragraph 2040 of the Trial

Gbao did not share the intent of the principal perpetrators to commit the crimes

It is impo

physicall

criminal

bao did not share the intent of the principal perpetrators

as afores

intend as a means of achieving the common purpose, might

be committed by other members of the joint criminal enterprise or persons under their

s of

achieving the common purpose, might be committed by other members of the joint

487. The Trial Chamber further found, with respect to Gbao, that

The Accused 1254

There

foreseeable that he would further the joint criminal enterprise.1255

eals Chamber agrees.

Judgment that

committed against civilians under Counts 3 to 5 (unlawful killings), and Count 14

(pillage) in Bo District in furtherance of the joint criminal enterprise.

rtant to note here that the ‘principal perpetrators’ are those persons who personally and

y committed the crimes alleged and may be persons who are not members of the joint

enterprise.

489. Further in regard to the crimes in Bo District, the Trial Chamber concluded in paragraph

2048 of the Trial Judgment that although G

aid,

[T]he Prosecution has proved beyond reasonable doubt that Gbao willingly took the risk

that the crimes charged and proved under unlawful killings (Count 3 to 5) and pillage

(Count 14), which he did not

control.

490. In respect of the crimes committed in Kenema District, the Trial Chamber found in

paragraph 2060 of the Trial Judgment that

[T]he Prosecution has proved beyond reasonable doubt that Gbao willingly took the risk

that the crimes charged and proved under Counts 3 to 5 (unlawful killings), Count 11

(physical violence) and Count 13 (enslavement) which he did not intend as a mean

criminal enterprise or persons under their control.

491. Finally, with regard to the crimes committed in Kono District, the Trial Chamber held in

paragraph 2109 of the Trial Judgment that

1255

1254 Tadi! Appeal Judgment, paras 991-992.

Trial Judgment, para. 1990.

3933

175


o the Common Criminal Purpose

and was, therefore, a member of the JCE as the Trial Chamber found,1256

he is responsible for all

his is consistent with the pleading of the crimes in the

Indictment (which must be read in its entirety pleaded each of the crimes in Counts 1 to

14 as either within the JCE or as a reasonably foreseeable consequence of the JCE.1257

ission during the Appeal Hearing

that Gbao “shared the intent for the crimes to be committed in Kailahun District, so he was a

participant in the joint criminal enterprise.”1258

Gbao it must be recalled was at all material times

the senior RUF Commander stationed in Kailahun. It follows that, since Gbao was a member of the

JCE, so long as it was reasonably foreseeable that some of the members of the JCE or persons under

their control would commit crimes, Gbao would be criminally liable for the commission of those

crimes.1259

As the Trial Chamber found that the crimes in Bo, Kenema and Kono Districts, which

were within the Common Criminal Purpose, were reasonably foreseeable, it follows that the Trial

Chamber did not err. Gbao’s Ground 8 is accordingly dismissed.

494. Sub-Ground 8(k), supra, is obviously not a ground of appeal, by any stretch of the

imagination, and is summarily dismissed.

4. Conclusion

[T]he Prosecution has proven beyond reasonable doubt that Gbao willingly took the risk

that the crimes charged and proved under Counts 3 to 5, 6 to 9, 10 and 11, 13 and 14

which he did not intend as a means of achieving the common purpose, might be

committed by other members of the joint criminal enterprise or persons under their

control. (Emphasis supplied)

492. The Appeals Chamber holds that so long as Gbao agreed t

crimes that he either intended, or were naturally foreseeable would be committed by members of

the JCE or persons under their control. T

) and which

493. The Appeals Chamber agrees with the Prosecution’s subm

495. The Appeals Chamber dismisses Kallon’s Ground 2 in present parts and dismisses, Justices

Winter and Fisher dissenting, Gbao’s Grounds 8(j) and (k).

1256 Trial Judgment, para. 1990. 1257 See supra, para. 483; see also Indictment, para. 37; Brima et al. Appeal Judgment, para. 85. 1258 Transcript, Appeal Hearing, (Dr. Christopher Staker), 3 September 2009, p. 194. 1259 Transcript, Appeal Hearing, 3 September 2009, pp. 194-197.

3932

448


circumstances found to exist then, [and therefore] it should not be given undue weight in

mitigation.”3443

Sesay fails to show error in this regard.

(e) Alleged coercive treatment by the Prosecution

1244. The Appeals Chamber is of the view that, contrary to Sesay’s argument, the Trial Chamber

took into account Sesay’s argument that the Prosecution’s “coercive conduct” during his arrest and

“interview process” denied him of the real possibility of cooperation with the Prosecution. These

circumstances were the subject of the “lengthy voir dire process,” and Sesay’s submissions were

noted in paragraph 72 of the Sentencing Judgment.3444

In the context of considering “Substantial

cooperation” with the Prosecution, the Trial Chamber found that Sesay’s treatment by the

Prosecution during the six day period after his arrest did not preclude him from cooperating with

the Prosecution at any point since that episode, and thus it did not warrant additional relief beyond

that already afforded to Sesay, namely, that the Trial Chamber expunged from the record the

statements obtained by the Prosecution during this six day period.3445

On appeal, Sesay has not

shown any error and, therefore, his submission is untenable.

(f) Likelihood of serving sentence abroad

1245. The Trial Chamber found that:

[W]hilst it seems more likely than not at this stage that the convicted persons in this trial

will serve sentences outside Sierra Leone, this is a decision that ultimately lies within the

discretion of the President of the Court, based upon agreements concluded by the

Registrar. The Chamber is unable to speculate on the result of these negotiations and

decision-making processes, upon which it has no conclusive information, which lie

outside of its control. It therefore notes for purposes of record that it has not given any

weight to this factor in the consideration of the sentences of any of the convicted persons

in this case.

The Chamber, however, wishes to recognize that, in general terms, sentences served

abroad, where family visits are likely to be few, may be harder to bear. Such

circumstances would normally amount to a factor in mitigation.3446

1246. The Appeals Chamber finds no error in the Trial Chamber’s decision not to mitigate the

Appellants sentences as a consequence of the fact that they will likely be served outside of Sierra

3442 Sesay Appeal, paras 390, 391, 392. 3443 Sentencing Judgment, para. 224. 3444 Sentencing Judgment, para. 72. 3445 Sentencing Judgment, para. 222. 3446 Sentencing Judgment, paras 205, 206.

3931

449


48

Leone. As discussed in the Mr"a case, which is relied upon by Sesay, it is common practice that

convicted persons from international criminal tribunals serve their sentences in foreign

countries.3447

Sesay does not refer to any case in which serving the sentence in a foreign country

has been considered as a mitigating factor for sentencing purposes.34

(g) Statement of remorse

1247. Although the Trial Chamber found Sesay’s statements of remorse were generally “not

sincere,” it accepted that his expression of empathy toward the victims of the conflict were in fact

sincere.3449

1248. With regard to any further mitigating weight, Trial Chamber exercised its discretion to find

that Sesay’s statements, apart from his empathy toward victims of the conflict, did not show any

real remorse.3450

Sesay, however, relies on the ICTY Trial Chamber case of Br"anin to assert that in

order to constitute a mitigating circumstance “it is sufficient for the accused to extend his sympathy

for victims of the conflict.”3451

The Appeals Chamber finds that this is a mischaracterisation of the

law. In Fofana and Kondewa, the Appeals Chamber observed that only in a minority of cases have

Trial Chambers found that an accused’s expressions of regret or empathy for victims, without

acknowledgement of responsibility for the crimes, constituted a mitigating factor. The Appeals

Chamber acknowledged that it is:

aware of only two cases at the ad hoc Tribunals in which the Chamber considered

whether an accused’s expressions of regret or empathy for victims without

acknowledgement of responsibility for the crimes could constitute a mitigating factor. In

Vasiljevi!, the ICTY Appeals Chamber opined that an accused can express sincere regrets

without admitting his participation in a crime, and that this could be a factor taken into

account by the Trial Chamber.3452 However, in Vasiljevi!, the Appeals Chamber declined

to consider Vasiljevi ’s expressions of regret to be a mitigating circumstance.3453

The ICTY Trial Judgment in Ori! is the only case in which a convicted person received

credit for expressions of empathy for the victims without acknowledging

responsibility.3454 In Blaški!, the accused attempted to express remorse while denying

3447 Mr"a Trial Judgment, para. 109. 3448 The Trial Chamber in Mr"a considered only that service of sentence in a foreign country could be taken into

consideration for purposes of parole or early release. See Mr"a Trial Judgment, para. 109. 3449 M.Nikoli! Sentencing Appeal Judgment, para. 117. 3450 Trial Judgment, para. 231. 3451 Sesay Appeal, para. 401. 3452 Fofana and Kondewa Appeal Judgment para. 487, citing Vasiljevi! Appeal Judgment, para. 177. 3453 Fofana and Kondewa Appeal Judgment para. 487, citing Vasiljevi! Appeal Judgment, para. 177. 3454 Fofana and Kondewa Appeal Judgment para. 488, citing Ori! Trial Judgment, para. 752.

3930

477


XII. DISPOSITION

For the foregoing reasons, THE APPEALS CHAMBER

PURSUANT to Article 20 of the Statute and Rule 106 of the Rules of Procedure and Evidence;

NOTING the written submissions of the Parties and their oral arguments presented at the hearings

on 2, 3 and 4 September 2009;

SITTING in open session;

WITH RESPECT TO SESAY’S GROUNDS OF APPEAL;

ALLOWS Ground Thirty-Five, in part, REVERSES the verdict of guilty for Sesay under

Article 6(1) of the Statute for planning enslavement in the form of forced mining between

December 1998 and January 2000 in parts of Kono District other than Tombodu, and DIMISSES

the remainder of the Ground;

ALLOWS Ground Thirty-Six, in part, REVERSES the verdict of guilty for Sesay under

Article 6(3) of the Statute insofar as it relates to enslavement at the Yengema training base between

December 1998 and about 30 January 2000, and DISMISSES the remainder of the Ground;

ALLOWS Ground Forty-Six, in part, HOLDS that the Trial Chamber impermissibly counted the

specific intent for acts of terrorism and collective punishments as aggravating factors for the

underlying offences, and DISMISSES the remainder of the Ground;

REVERSES the verdict of guilty for Sesay pursuant to Article 6(1) of the Statute for the killing of

a Limba man in Tongo Field;

REVERSES the verdict of guilty for Sesay pursuant to Article 6(1) of the Statute for murder, a

Crime against Humanity under Count 4 for specified acts for which Sesay was also found guilty for

extermination, a Crime against Humanity under Count 3;

DISMISSES the remaining Grounds of Appeal;

WITH RESPECT TO KALLON’S GROUNDS OF APPEAL;

3929

478


ALLOWS Ground Twelve and REVERSES the verdict of guilty for Kallon pursuant to

Article 6(1) of the Statute for instigating the murder of Waiyoh in Wendedu in Kono District;

ALLOWS Ground Fourteen, in part, REVERSES the verdict of guilty for Kallon pursuant to

Article 6(3) of the Statute for the crime of enslavement committed in Kono District from the end of

August 1998 to December 1998, and DISMISSES the remainder of the Ground;

ALLOWS Ground Thirty, in part, REVERSES the verdict of guilty for Kallon pursuant to

Article 6(1) of the Statute for murder, a Crime against Humanity under Count 4 for specified acts

for which Kallon was also found guilty for extermination, a Crime against Humanity under Count 3,

and DISMISSES the remainder of the Ground;

ALLOWS Ground Thirty-One, in part, HOLDS that the Trial Chamber impermissibly counted the

specific intent for acts of terrorism and collective punishments as aggravating factors for the

underlying offences, and DISMISSES the remainder of the Ground;

REVERSES the verdict of guilty for Kallon pursuant to Article 6(1) of the Statute for the killing of

a Limba man in Tongo Field;


WITH RESPECT TO GBAO’S GROUNDS OF APPEAL;

ALLOWS Ground Eight, in part, HOLDS that the Trial Chamber violated Gbao’s right to a fair

trial by finding that he significantly contributed to the JCE through his role as an ideology expert

and instructor, REVERSES the verdict of guilty for Gbao pursuant to Article 6(1) of the Statute for

the killing of a Limba man in Tongo Field, REVERSES the verdict of guilty for Gbao pursuant to

Article 6(1) of the Statute for Collective Punishments in Kailahun District, and DISMISSES,

Justices Winter and Fisher dissenting, the remainder of the Ground;

ALLOWS Ground Sixteen, in part, REVERSES the verdict of guilty for Gbao pursuant to Article

6(1) of the Statute, in relation to the attack against UNAMSIL peacekeeper Major Salahuedin and

DISMISSES the remainder of the Ground;

ALLOWS Ground Nineteen, in part, REVERSES the verdict of guilty for Gbao pursuant to

Article 6(1) of the Statute for murder, a Crime against Humanity under Count 4 for specified acts

3928

479


for which Gbao was also found guilty for extermination, a Crime against Humanity under Count 3,

and DISMISSES the remainder of the Ground;


WITH RESPECT TO THE PROSECUTION’S GROUNDS OF APPEAL;

DISMISSES Ground One, Justices Kamanda and King dissenting;

DISMISSES Ground Two;

ALLOWS Ground Three, in part, HOLDS that the communication of a threat to a third party is not

a requirement of the offence of the taking of hostages, HOLDS that the requisite mens rea may

arise at a period subsequent to the initial seizure or detention, HOLDS that some RUF fighters

other than the three Appellants committed the offence of the taking of hostages with the intent to

condition the safety or release of the captured UNAMSIL personnel on the release of Sankoh,

HOLDS that the Prosecution has failed to establish that Sesay, Kallon or Gbao are liable for this

offence, and DISMISSES the remainder of the Ground;

CONSEQUENTLY REVISES the sentences as follows:

In respect of Sesay, taking into account the Grounds of Appeal which have been allowed,

the particular circumstances of this case as well as the form and degree of the participation

of Sesay in the crimes, and the seriousness of the crimes, the Appeals Chamber finds that

the effective sentence imposed by the Trial Chamber reflects the totality of Sesay’s culpable

conduct for the crimes under Counts 1 through 14. The Appeals Chamber therefore imposes

a global sentence for Counts 1 through 14 of fifty-two (52) years imprisonment. The

Appeals Chamber affirms the sentence of fifty-one (51) years imprisonment under Count 15

and forty-five (45) years imprisonment under Count 17;

In respect of Kallon, taking into account the Grounds of Appeal which have been allowed,


of Kallon in the crimes, and the seriousness of the crimes, the Appeals Chamber finds that

the effective sentence imposed by the Trial Chamber reflects the totality of Kallon’s

culpable conduct for the crimes under Counts 1 through 14. The Appeals Chamber therefore

imposes a global sentence for Counts 1 through 14 of thirty-nine (39) years imprisonment.

3927

480


The Appeals Chamber affirms the sentence of forty (40) years imprisonment under Count 15

and thirty-five (35) years imprisonment under Count 17;

In respect of Gbao, taking into account the Grounds of Appeal which have been allowed,


of Gbao in the crimes, and the seriousness of the crimes, the Appeals Chamber finds that the

effective sentence imposed by the Trial Chamber reflects the totality of Gbao’s culpable

conduct for the crimes under Counts 1, 3 through 11 and 13. The Appeals Chamber, Justices

Winter and Fisher dissenting, therefore imposes a global sentence for Counts 1, 3 through

11 and 13 of twenty-five (25) years imprisonment. Taking into account that Gbao’s Ground

16 has been allowed, in part, the sentence of twenty-five (25) years imprisonment under

Count 15 is decreased to twenty (20) years imprisonment;

ORDERS that the sentences shall run concurrently;

ORDERS that Issa Hassan Sesay shall serve a TOTAL TERM OF IMPRISONMENT OF FIFTY-

TWO (52) YEARS, subject to credit being given under Rule 101(D) of the Rules of Procedure and

Evidence for the period for which he has already been in detention;

ORDERS that Morris Kallon shall serve a TOTAL TERM OF IMPRISONMENT OF FORTY (40)

YEARS, subject to credit being given under Rule 101(D) of the Rules of Procedure and Evidence

for the period for which he has already been in detention;

ORDERS that Augustine Gbao shall serve a TOTAL TERM OF IMPRISONMENT OF

TWENTY-FIVE (25) YEARS, subject to credit being given under Rule 101(D) of the Rules of

Procedure and Evidence for the period for which he has already been in detention;

ORDERS that this Judgment shall be enforced immediately pursuant to Rule 119 of the Rules of

Procedure and Evidence;

ORDERS, in accordance with Rule 109 of the Rules of Procedure and Evidence that Issa Hassan

Sesay, Morris Kallon and Augustine Gbao remain in the custody of the Special Court for Sierra

Leone pending the finalization of arrangements to serve their sentences.

3926

481


Delivered on 26 October 2009 at Freetown, Sierra Leone.

Justice Renate Winter,

Presiding

Justice Jon M. Kamanda

Justice George Gelaga King

Justice Emmanuel Ayoola

Justice Shireen Avis Fisher

Justice Winter appends a Separate Concurring Opinion to the Judgment in which Justice Fisher

joins.

Justice Kamanda and Justice King append a Dissenting Opinion in respect of Prosecution Ground 1.

Justice Ayoola appends a Separate Concurring Opinion to the Judgment.

Justice Fisher appends a Partially Dissenting Opinion to the Judgment and Sentence in which

Justice Winter joins in part.

[Seal of the Special Court for Sierra Leone]

3925

512


XVI. PARTIALLY DISSENTING AND CONCURRING OPINION OF

JUSTICE SHIREEN AVIS FISHER

1. I respectfully, but fundamentally, dissent from the Majority’s decision to confirm the Trial

Chamber’s convictions of Gbao under Joint Criminal Enterprise liability. Notwithstanding the Trial

Chamber’s findings that he did not share the Common Criminal Purpose with the other participants

of the JCE in the case before us, the Majority holds that Gbao can incur individual criminal

responsibility under JCE,1 thereby entirely detaching JCE liability from the requisite mens rea that

defines it. I am compelled to dissent from this unprecedented holding, which abandons the keystone

of JCE liability as it exists in customary international law. “Common purpose or design” liability2

demands that the accused share with others a common criminal purpose, and I cannot agree with the

Majority’s decision to abandon this legal requirement.

2. This error as to Gbao’s mens rea is compounded by the Majority’s decision to uphold the

conclusion of the Trial Chamber regarding Gbao’s actus reus: that Gbao significantly contributed to

the furtherance of the Common Criminal Purpose. The Majority’s decision in this regard is flawed

because it is based on a finding the Trial Chamber never made.

3. The Trial Chamber held Gbao individually criminally responsible for the crimes committed

in furtherance of a common criminal purpose that the Trial Chamber found he did not himself share.

The Majority upholds this reasoning and in addition, concludes that he contributed to the

furtherance of this common criminal purpose, notwithstanding the absence of any confirmed

finding of the Trial Chamber to that effect. I must dissent.

A. Gbao cannot incur JCE liability

4. As a preliminary matter, I disagree with the Majority that Gbao’s Grounds 8(j) and (k) are

“vague, disjointed, imprecise and unclear,” nor do I agree that these grounds “do not fulfil the

minimum basic requirements of pleading Grounds of Appeal.”3 Gbao clearly sets forth his

arguments under these grounds in his Notice of Appeal,4 and fully develops them in his Appeal

Brief,5 citing the applicable law and the Trial Chamber’s findings, explaining the precise legal error

1 Appeal Judgment, paras 482-493. 2 Tadi Appeal Judgment, para. 227. 3 Appeal Judgment, para. 481. 4 Gbao Notice of Appeal, paras 52-56. 5 Gbao Appeal, paras. 144-156.

3924

515


11. Once the scope of the common criminal purpose shared by the participants has been

established, the trier of fact must be satisfied that the accused, too, shares “the same criminal

intention” as the other participants.16

Accordingly, he must intend the full extent of the shared

common criminal purpose, both in terms of the crimes intended and the geographical area covered

by the JCE. Where this is established, and the other elements of JCE liability are met, customary

international law attaches criminal responsibility to the accused not only for his own actions, but

also for the actions of his fellow JCE members that further the commonly intended crimes (JCE 1)

or that are reasonably foreseeable consequences of carrying out the commonly intended crimes

(JCE 3).17

Conversely, if the accused did not intend those crimes to begin with, neither form of JCE

liability can arise.

(b) Legal error in finding that Gbao incurs JCE liability

12. The judgment of the Appeals Chamber reflects that we unanimously find that the common

criminal purpose established by the Trial Chamber in the present case was:

[T]he objective to gain and exercise political power and control over the territory of

Sierra Leone, in particular the diamond mining areas, and the crimes as charged under

Counts 1 to 14 as means of achieving that objective (“Common Criminal Purpose”).18

13. The statutory crimes within the Common Criminal Purpose were thus the criminal acts

described under Counts 1 to 14 in the Indictment. The geographical scope of the Common Criminal

Purpose was the territory of Sierra Leone, though the crimes for which the Appellants were

convicted were committed in Bo, Kenema, Kono and Kailahun Districts.

14. Where I first differ from the Majority is in the recognition of what I believe to be the fatal

contradiction in the Trial Chamber’s conclusion that Gbao was a “participant” in the JCE.19

While

Gbao’s “participation” in the JCE is a legal conclusion, requiring proof beyond reasonable doubt

that Gbao had the requisite mens rea and actus reus, the Trial Chamber’s finding that Gbao was a

“participant” is unsupported by any reference to the evidence. In fact, it is contradicted by the Trial

Chamber’s findings on his mens rea. In making its detailed findings on Gbao’s “participation” in

the Common Criminal Purpose,20

the Trial Chamber found that Gbao did not intend any of the

16 Tadi Appeal Judgment, para. 196. 17 Br!anin Appeal Judgment, para. 431. 18 Appeal Judgment, para. 305; Trial Judgment, paras 1979-1985. 19 Trial Judgment, paras 1990, 2081; Appeal Judgment, paras 485, 486. 20 Trial Judgment, Section 2.2.2.3.3.

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crimes in Bo, Kenema and Kono Districts as means of achieving the Common Criminal Purpose.21

He was found to have intended only the crimes committed in Kailahun District.22

In addition to

being geographically distinct from the crimes in Bo, Kenema and Kono, the crimes in Kailahun did

not even include all of the counts which formed the means of achieving the common objective, as

acts of pillage (Count 14) was neither charged nor found to have been committed there.23

15. By contrast, Sesay and Kallon, who were also found by the Trial Chamber to have been

“participants” in the same JCE as Gbao, were found to have intended not only the crimes committed

in Kailahun, but all the crimes in all four Districts at issue, including the acts of pillage under Count

14.24

Their intent thus is identical to the Common Criminal Purpose.

16. The inescapable conclusion from the finding that Gbao did not intend the crimes in Bo,

Kenema and Kono Districts – a total of approximately 63 crime incidents, and, in addition, the

continuous crimes of enslavement and forced marriage25

– is that Gbao did not share the “same

criminal intention”26

as the other alleged participants in the Common Criminal Purpose. He cannot,

therefore, be found to incur JCE liability.

17. In affirming Gbao’s convictions under JCE, the Majority adopts the Trial Chamber’s

circular reasoning, but compounds the Trial Chamber’s error by collapsing the distinction between

JCE 1 and JCE 3. The Majority reasons that it was sufficient for the Trial Chamber to conclude that

Gbao was a “participant” in the JCE and therefore shared the Common Criminal Purpose.27

By

virtue of that conclusion, the Majority reasons, he is responsible for all crimes by members of the

JCE that either he intended or were reasonably foreseeable.28

Therefore, according to the Majority’s

reasoning, it matters not whether Gbao intended the crimes in Bo, Kenema and Kono;29

given that

he was “a member of the JCE,” he was liable for the commission of “the crimes in Bo, Kenema and

Kono Districts, which were within the Common Criminal Purpose,” so long as it was “reasonably

21 Trial Judgment, paras 2040, 2048, 2060, 2109; Appeal Judgment paras 488-491. 22 Trial Judgment, para. 2172. 23 See Trial Judgment, paras 1444, 2156. 24 Trial Judgment, paras 2002, 2008, 2056, 2092, 2102, 2103, 2163. 25 Bo District: 11 distinct crime incidents (Trial Judgment, para. 1974, 1975); Kenema District: at least 18 crime

incidents and the enslavement of an unknown number of civilians between 1 August 1997 and about 31 January 1998

(Trial Judgment, paras 2050, 2051); Kono District: 34 crime incidents, the rapes and “forced marriages” of an unknown

number of women during the February/March 1998 attack on Koidu Town, and the enslavement of an unknown number

of civilians between February and April 1998 (Trial Judgment, paras 2063, 2064). 26 Tadi Appeal Judgment, para. 196. 27 Appeal Judgment, paras 486, 492. 28 Appeal Judgment, paras 485, 492. 29 Appeal Judgment, paras 492, 493.

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foreseeable that some of the members of the JCE or persons under their control would commit

crimes.”30

18. This reasoning is not only circular, but dangerous. First, describing Gbao as a “participant”

under this theory is mistaken because whether or not he was a “participant” is only significant if it

means that he shared the common intent of the JCE, that is, the Common Criminal Purpose. The

Trial Chamber’s findings, unquestioned, and indeed quoted by the Majority, state unequivocally

that he did not.31

19. Second, the Majority collapses the distinction between the mens rea required for JCE 1 and

the mens rea applicable to JCE 3 by holding that Gbao can be liable for crimes within the Common

Criminal Purpose that he did not intend and that were only reasonably foreseeable to him. Such an

extension of JCE liability blatantly violates the principle nullum crimen sine lege because it

imposes criminal responsibility without legal support in customary international law applicable at

the time of the commission of the offence. The Majority makes no effort to reason why it considers

that this extension of JCE liability was part of the law to which Gbao was subject at the time these

offences were committed and it fails to cite a single case in which this extension of liability is

recognized as part of customary international law. This dearth of jurisprudential support was

acknowledged by the Prosecution which admitted at the Appeal Hearing that there “may be no

authority” in international criminal law in which the mens rea element for JCE is characterized or

applied as the Trial Chamber applied it to Gbao.32

20. The primary justification suggested by the Majority for its radical departure from customary

international law is that its conflation of JCE 1 and JCE 3 mens rea standards “is consistent with the

pleading of the crimes in the Indictment.”33

That an Indictment may plead in the alternative does

not establish that there is no distinction between the forms of liability so pled. Also, whether the

Indictment permissibly pleaded JCE is irrelevant as an evidentiary matter.

21. The Majority further agrees with the Trial Chamber’s finding that:

30 Appeal Judgment, para. 493. 31 Appeal Judgment, paras 488-491. 32 Transcript, Appeal Hearing, (Dr. Christopher Staker), 3 September 2009, pp. 196, 197. 33 Appeal Judgment, para. 492.

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itted there.

Therefore, the distance of Gbao to many of the crimes is not a reason for denying his

participation under the basic form. What matters is that he intended or that it was

foreseeable to him that he would further the joint criminal enterprise.34

“Basic form” is used in the jurisprudence to mean JCE 1.35

The Trial Chamber’s pronouncement on

the law here is wrong, and the Majority’s agreement is therefore misplaced. The distance of an

accused to the crimes may of course be a relevant evidentiary consideration in determining whether

the necessary mens rea and actus reus for JCE liability are established. More critically, the Trial

Chamber’s reference to a foreseeability standard with respect to JCE 1 is plainly erroneous,36

as is

the conflation of the actus reus and mens rea elements in the holding that it must be “foreseeable”

to the accused that he “would further” the JCE.

22. Finally, in a perplexingly contradictory and unexplained pronouncement, the Majority

expresses its agreement with the Prosecution’s position at the Appeal Hearing that Gbao “shared the

intent for the crimes to be committed in Kailahun District, so he was a participant in the joint

criminal enterprise.”37

As an initial matter, this position is contrary to the Majority’s own

reasoning, as it envisages a common criminal purpose different from that found by the Trial

Chamber and confirmed unanimously on appeal. That different “subsidiary” common criminal

purpose is limited solely to Kailahun District and excludes acts of pillage (Count 14), as no such

crimes were comm

23. If in fact the Majority accepts the position of the Prosecution that the shared intent for

commission of the crimes committed in Kailahun describes the common criminal purpose of the

JCE, then Gbao would presumably have been liable under JCE 1 for the crimes in Kailahun

District, and liable under JCE 3 for the crimes in other Districts. However, such a limited,

“subsidiary” JCE was neither sufficiently pleaded in the Indictment nor found by the Trial

Chamber. Nor did the Trial Chamber make any findings that the crimes in Bo, Kenema and Kono

were reasonably foreseeable by Gbao as a consequence of the implementation of that “subsidiary”

JCE, (as opposed to the country-wide JCE found by the Trial Chamber.) This theory therefore finds

no support in the pleadings or the evidence.

24. The only JCE pleaded, established and upheld in this case had as its Common Criminal

Purpose to control the territory of Sierra Leone through the commission of the crimes charged under

34 Trial Judgment, para. 2013. 35 See e.g. Kvo"ka et al. Appeal Judgment, para. 110. 36 Tadi Appeal Judgment, para. 228.

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Counts 1 to 14.38

Gbao either shared the intent of this criminal purpose – both in terms of the type

of crimes and the geographical scope it encompassed – or he did not.

25. It remains unclear what common criminal purpose, in the Majority’s mind, Gbao did share.

It purports to hold that Gbao shared the Common Criminal Purpose that the Trial Chamber found

established on the evidence.39

But as explained, that was a legal impossibility, given that the

evidence showed that he did not share the intent of the other “participants” in the JCE. The Majority

has not articulated, any alternative common criminal purpose which Gbao shared. Yet it convicts

him pursuant to JCE liability. That conviction was neither in accordance with the law nor the facts

as found by the Trial Chamber and upheld on appeal.

26. The Trial Chamber’s error with respect to Gbao’s mens rea is not simply a harmless mistake

that can be rectified or overlooked on appeal. Rather, because of this error, the entire legal edifice

the Trial Chamber and Majority have constructed for Gbao’s JCE liability is so fundamentally

flawed that those convictions which rest upon it collapse.

(c) Conclusion

27. The Trial Chamber found that Gbao did not share the Common Criminal Purpose. Its

decision, upheld by the Majority, to nonetheless convict Gbao under JCE absent the crucial element

of shared criminal intent constitutes a legal error which invalidates Gbao’s conviction under JCE.

28. I therefore would grant Gbao’s Grounds 8(j) and (k). Although Gbao formally only requests

his JCE convictions to be reversed in respect of Bo, Kenema and Kono Districts, the critical

submission in these grounds of appeal is that he was not part of the JCE at all. As that submission in

my opinion succeeds, there is no basis on which the Trial Chamber was permitted to convict Gbao

under the JCE mode of liability for any of the crimes in the four Districts. I further note that the

elimination of Gbao as a participant in the JCE might have implications for the scope of his co-

accused’s JCE liability for crimes in Kailahun.

37 Transcript, Appeal Hearing, (Dr. Christopher Staker), 3 September 2009, p. 194. 38 Supra, para. 12; Appeal Judgment, para. 305; Trial Judgment, paras 1979-1985. 39 Appeal Judgment, para. 485.

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3918

S PE C IAL C OU RT FOR S I ER R A LEON E

TRIAL CHAMBER I

Before: Hon. Justice Pierre Boutet, Presiding Judge

Hon. Justice Benjamin Mutanga Itoe

Hon. Justice Bankole Thompson

Registrar:

Herman von Hebel

Date: 2 March 2009

PROSECUTOR Against ISSA HASSAN SESAY

MORRIS KALLON

AUGUSTINE GBAO

(Case No. SCSL-04-15-T)

Public Document

JUDGEMENT

Office of the Prosecutor: Defence Counsel for Issa Hassan Sesay:

Pete Harrison

Vincent Wagona

Charles Hardaway

Reginald Fynn

Wayne Jordash

Sareta Ashraph

Elisabeth Baumgartner

Régine Gachoud

Amira Hudroge

Bridget Osho

Defence Counsel for Morris Kallon:

Charles Taku

Kennedy Ogeto

Court Appointed Counsel for Augustine Gbao:

John Cammegh

Scott Martin

SPECIAL COURT FOR SIERRA LEONE

3917

Case No. SCSL-04-15-T 385 2 March 2009

Kono District, including Koidu, Tombodu, Foindu, Willifeh, Mortema and Baiya.”2436 The

Chamber has found that no evidence was adduced in respect of Willifeh, Foindu, Mortema

and Baiya.2437

5.2.1.1. Koidu Town

5.2.1.1.1. Killings in attack on Koidu Town

1269. The Chamber finds that an unknown number of civilians were unlawfully killed during

the February/March attack on Koidu in 1998, as charged in Counts 4 and 5.2438

1270. Although an unknown number of Kamajors were also killed in this attack, the

Prosecution has not established that these Kamajors were hors de combat at the time. The

Chamber thus finds that the Prosecution has not proven the essential elements of Count 4 or

Count 5 in respect of this particular act.

5.2.1.1.2. Killing of civilians by Rocky and his men

1271. The Chamber finds that the killings of 30 to 40 civilians by Rocky with a machine gun

in April 1998 constitutes murder as charged in Counts 4 and 5.2439 From the manner in which

Rocky fired indiscriminately into the crowd, and boasted about the number of people killed,

we conclude that he intended to kill on a massive scale. The Chamber accordingly finds that

this killing also constitutes an act of extermination as charged in Count 3.

1272. The Chamber is satisfied that the only reasonable inference to be drawn beyond

reasonable doubt from the fact that rebels amputated the hands and feet of a 15 year old boy

and threw him in a latrine pit in April 1998 is that as a result the boy died, and therefore finds

that such an act constitutes murder as charged in Counts 4 and 5 of the Indictment.

5.2.1.2. Tombodu

5.2.1.2.1. Killings by Savage and Staff Alhaji

1273. The Chamber recalls its findings that in Tombodu between February and

2436 Indictment, para. 48. 2437 RUF Oral Rule 98 Decision, Transcript of 25 October 2006, p. 18. 2438 Supra para. 1146. 2439 Supra paras 1147-1151.

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3903

GRAND CHAMBER

CASE OF AL-SKEINI AND OTHERS v. THE UNITED KINGDOM

(Application no. 55721/07)

JUDGMENT

STRASBOURG

7 July 2011

This judgment is final but may be subject to editorial revision.

3902

AL-SKEINI AND OTHERS v. THE UNITED KINGDOM JUDGMENT 65

160. The applicants pointed out that the Special Investigation Branch

investigation into the fourth applicant's case had been discontinued at the

request of the military chain of command. The further investigatory phase,

re-opened as a result of litigation in the domestic courts, was similarly

deficient, given the lack of independence of the Special Investigation

Branch and the extreme delay in interviewing the firer and securing other

key evidence. In the fifth applicant's case, the investigation was initiated at

the repeated urging of the family, after considerable obstruction and delay

on the part of the British authorities. The investigators were not independent

from the military chain of command and the victim's family were not

sufficiently involved. The applicants contended that the Government's

objection that the fifth applicant lacked victim status should be rejected. The

court-martial proceedings and the compensation he had received in

settlement of the civil proceedings were inadequate to satisfy the procedural

requirement under Article 2. In contrast, the sixth applicant did not claim

still to be a victim of the violation of his procedural rights under Articles 2

and 3.

(b) The Court's assessment

(i) General principles

161. The Court is conscious that the deaths in the present case occurred

in Basrah City in South East Iraq in the aftermath of the invasion, during a

period when crime and violence were endemic. Although major combat

operations had ceased on 1 May 2003, the Coalition forces in South East

Iraq, including British soldiers and military police, were the target of over a

thousand violent attacks in the subsequent 13 months. In tandem with the

security problems, there were serious breakdowns in the civilian

infrastructure, including the law enforcement and criminal justice systems

(see paragraphs 22-23 above; see also the findings of the Court of Appeal at

paragraph 80 above).

162. While remaining fully aware of this context, the Court's approach

must be guided by the knowledge that the object and purpose of the

Convention as an instrument for the protection of individual human beings

requires that its provisions be interpreted and applied so as to make its

safeguards practical and effective. Article 2, which protects the right to life

and sets out the circumstances when deprivation of life may be justified,

ranks as one of the most fundamental provisions in the Convention.

No derogation from it is permitted under Article 15, “except in respect of

deaths resulting from lawful acts of war”. Article 2 covers both intentional

killing and also the situations in which it is permitted to use force which

may result, as an unintended outcome, in the deprivation of life. Any use of

force must be no more than “absolutely necessary” for the achievement of

one or more of the purposes set out in sub-paragraphs (a) to (c) (see

3901

66 AL-SKEINI AND OTHERS v. THE UNITED KINGDOM JUDGMENT

McCann and Others v. the United Kingdom, 27 September 1995,

§§ 146-148, Series A no. 324).

163. The general legal prohibition of arbitrary killing by agents of the

State would be ineffective in practice if there existed no procedure for

reviewing the lawfulness of the use of lethal force by State authorities. The

obligation to protect the right to life under this provision, read in

conjunction with the State's general duty under Article 1 of the Convention

to “secure to everyone within their jurisdiction the rights and freedoms

defined in [the] Convention”, requires by implication that there should be

some form of effective official investigation when individuals have been

killed as a result of the use of force by, inter alios, agents of the State (see

McCann, cited above, § 161). The essential purpose of such an investigation

is to secure the effective implementation of the domestic laws safeguarding

the right to life and, in those cases involving State agents or bodies, to

ensure their accountability for deaths occurring under their responsibility

(see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98,

§ 110, ECHR 2005-VII). However, the investigation should also be broad

enough to permit the investigating authorities to take into consideration not

only the actions of the State agents who directly used lethal force but also

all the surrounding circumstances, including such matters as the planning

and control of the operations in question, where this is necessary in order to

determine whether the State complied with its obligation under Article 2 to

protect life (see, by implication, McCann and Others, cited above, §§ 150

and 162; Hugh Jordan v. the United Kingdom, no. 24746/94, § 128,

ECHR2001-III (extracts); McKerr, cited above, §§ 143 and 151; Shanaghan

v. the United Kingdom, no. 37715/97, §§ 100-125, 4 May 2001; Finucane

v. the United Kingdom, no. 29178/95, §§ 77-78, ECHR 2003-VIII;

Nachova, cited above, §§ 114-115; and also, mutatis mutandis, Tzekov

v. Bulgaria, no. 45500/99, § 71, 23 February 2006).

164. The Court has held that the procedural obligation under Article 2

continues to apply in difficult security conditions, including in a context of

armed conflict (see, amongst other examples, Güleç v. Turkey, 27 July 1998,

§ 81, Reports of Judgments and Decisions 1998-IV; Ergi v. Turkey, 28 July

1998, §§ 79 and 82, Reports 1998-IV; Ahmet Özkan and Others v. Turkey,

no. 21689/93, §§ 85-90 and 309-320 and 326-330, 6 April 2004; Isayeva

v. Russia, no. 57950/00, §§ 180 and 210, 24 February 2005; Kanlibaş

v. Turkey, no. 32444/96, §§ 39-51, 8 December 2005). It is clear that where

the death to be investigated under Article 2 occurs in circumstances of

generalised violence, armed conflict or insurgency, obstacles may be placed

in the way of investigators and, as the United Nations Special Rapporteur

has also observed (see paragraph 93 above), concrete constraints may

compel the use of less effective measures of investigation or may cause an

investigation to be delayed (see, for example, Bazorkina v. Russia,

no. 69481/01, § 121, 27 July 2006). Nonetheless, the obligation under

3900

AL-SKEINI AND OTHERS v. THE UNITED KINGDOM JUDGMENT 67

Article 2 to safeguard life entails that, even in difficult security conditions,

all reasonable steps must be taken to ensure that an effective, independent

investigation is conducted into alleged breaches of the right to life (see,

amongst many other examples, Kaya v. Turkey, 19 February 1998,

§§ 86-92, Reports of Judgments and Decisions 1998-I; Ergi, cited above,

§§ 82-85; Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 101-110,

ECHR 1999-IV; Khashiyev and Akayeva v. Russia, nos. 57942/00

and 57945/00, §§ 156-166, 24 February 2005; Isayeva, cited above,

§§ 215-224; Musayev and Others v. Russia, nos. 57941/00, 58699/00

and 60403/00, §§ 158-165, 26 July 2007).

165. What form of investigation will achieve the purposes of Article 2

may vary depending on the circumstances. However, whatever mode is

employed, the authorities must act of their own motion once the matter has

come to their attention. They cannot leave it to the initiative of the

next-of-kin either to lodge a formal complaint or to take responsibility for

the conduct of any investigative procedures (see Ahmet Özkan and Others,

cited above, § 310; Isayeva, cited above, § 210). Civil proceedings, which

are undertaken on the initiative of the next-of-kin, not the authorities, and

which do not involve the identification or punishment of any alleged

perpetrator, cannot be taken into account in the assessment of the State's

compliance with its procedural obligations under Article 2 of the

Convention (see, for example, Hugh Jordan, cited above, § 141). Moreover,

the procedural obligation of the State under Article 2 cannot be satisfied

merely by awarding damages (see McKerr, cited above, § 121; Bazorkina,

cited above, § 117).

166. As stated above, the investigation must be effective in the sense

that it is capable of leading to a determination of whether the force used was

or was not justified in the circumstances and to the identification and

punishment of those responsible. This is not an obligation of result, but of

means. The authorities must take the reasonable steps available to them to

secure the evidence concerning the incident, including inter alia eye-witness

testimony, forensic evidence and, where appropriate, an autopsy which

provides a complete and accurate record of injury and an objective analysis

of clinical findings, including the cause of death. Any deficiency in the

investigation which undermines its ability to establish the cause of death or

the person or persons responsible will risk falling foul of this standard (see

Ahmet Özkan and Others, cited above, § 312; Isayeva, cited above, § 212

and the cases cited therein).

167. For an investigation into alleged unlawful killing by State agents to

be effective, it is necessary for the persons responsible for and carrying out

the investigation to be independent from those implicated in the events. This

means not only a lack of hierarchical or institutional connection but also a

practical independence (see, for example, Shanaghan, cited above, § 104).

A requirement of promptness and reasonable expedition is implicit in this

3899

68 AL-SKEINI AND OTHERS v. THE UNITED KINGDOM JUDGMENT

context. While there may be obstacles or difficulties which prevent progress

in an investigation in a particular situation, a prompt response by the

authorities in investigating a use of lethal force may generally be regarded

as essential in maintaining public confidence in their adherence to the rule

of law and in preventing any appearance of collusion in or tolerance of

unlawful acts. For the same reasons, there must be a sufficient element of

public scrutiny of the investigation or its results to secure accountability in

practice as well as in theory. The degree of public scrutiny required may

well vary from case to case. In all cases, however, the victim's next-of-kin

must be involved in the procedure to the extent necessary to safeguard his or

her legitimate interests (see Ahmet Özkan and Others, cited above,

§§ 311-314; Isayeva, cited above, §§ 211-214 and the cases cited therein).

(ii) Application of these principles to the facts of the case

168. The Court takes as its starting point the practical problems caused

to the investigatory authorities by the fact that the United Kingdom was an

Occupying Power in a foreign and hostile region in the immediate aftermath

of invasion and war. These practical problems included the breakdown in

the civil infrastructure, leading inter alia to shortages of local pathologists

and facilities for autopsies; the scope for linguistic and cultural

misunderstandings between the occupiers and the local population; and the

danger inherent in any activity in Iraq at that time. As stated above, the

Court considers that in circumstances such as these the procedural duty

under Article 2 must be applied realistically, to take account of specific

problems faced by investigators.

169. Nonetheless, the fact that the United Kingdom was in occupation

also entailed that, if any investigation into acts allegedly committed by

British soldiers was to be effective, it was particularly important that the

investigating authority was, and was seen to be, operationally independent

of the military chain of command.

170. It was not in issue in the first, second and fourth applicants' cases

that their relatives were shot by British soldiers, whose identities were

known. The question for investigation was whether in each case the soldier

fired in conformity with the Rules of Engagement. In respect of the third

applicant, Article 2 required an investigation to determine the circumstances

of the shooting, including whether appropriate steps were taken to safeguard

civilians in the vicinity. As regards the fifth applicant's son, although the

Court has not been provided with the documents relating to the

court-martial, it appears to have been accepted that he died of drowning.

It needed to be determined whether British soldiers had, as alleged, beaten

the boy and forced him into the water. In each case eye-witness testimony

was crucial. It was therefore essential that, as quickly after the event as

possible, the military witnesses, and in particular the alleged perpetrators,

should have been questioned by an expert and fully independent

3898

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3897

CONSEILDE L’EUROPE

COUNCILOF EUROPE

COUR EUROPÉENNE DES DROITS DE L’HOMME

EUROPEAN COURT OF HUMAN RIGHTS

CASE OF ERGI v. TURKEY

(66/1997/850/1057)

JUDGMENT

STRASBOURG

28 July 1998

The present judgment is subject to editorial revision before its reproduction

in final form in Reports of Judgments and Decisions 1998. These reports are

obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger

Straße 449, D-50939 Köln), who will also arrange for their distribution in

association with the agents for certain countries as listed overleaf.

3896

ERGI JUDGMENT OF 28 JULY 1998 14

It had not been apparent from the incident report in question that it was

the PKK who had fired the bullet which killed the applicant’s sister.

Furthermore, the sketch map accompanying the report appeared to place

security forces to the south and north-west and terrorists to the east but there

had been no plan of the Ergi house and neighbouring houses which clarified

from which direction the bullet was likely to have been fired. Nor had there

been any explanation in the text of the report as to the location of the

security forces.

44. Following the decision of lack of jurisdiction, the file had been

transferred to the public prosecutor’s office at the Diyarbakır National

Security Court. Except for the ballistics report issued on 1 April 1994, no

documents had been provided relating to any investigatory measures since

that date.

45. Major Kuzu had stated to the delegates that there was a fundamental

principle in the planning of military operations that these be not moved into

civilian areas. In this incident, the plan had been to restrict the activity in the

north of the village but the PKK had not approached them from the

expected side. No military inquiry or investigation had been carried out as

to the conduct of the operation. Major Kuzu, having seen the incident report

and sketch by İsa Gündoğdu, forwarded them to the public prosecutor and

took no further action.

II. RELEVANT DOMESTIC LAW

46. Article 125 of the Turkish Constitution provides as follows:

“All acts or decisions of the administration are subject to judicial review...

The administration shall be liable to indemnify any damage caused by its own acts

and measures.”

47. The above provision is not subject to any restrictions even in a state

of emergency or war. The second paragraph of the provision does not

necessarily require proof of the existence of any fault on the part of the

administration, whose responsibility is of an absolute, objective nature,

based on a concept of collective liability and referred to as the theory of

“social risk”. Thus the administration may indemnify people who have

suffered damage from acts committed by unknown or terrorist authors when

the State may be said to have failed in its duty to maintain public order and

safety, or in its duty to safeguard individual life and property.

48. The Criminal Code contains provisions dealing with unintentional

homicide (Articles 452, 459), intentional homicide (Article 448) and murder

(Article 450). In respect of these offences, complaints may be lodged,

pursuant to Articles 151 and 153 of the Turkish Code of Criminal

Procedure, with the public prosecutor or the local administrative authorities.

3895


The public prosecutor and the police have a duty to investigate crimes

reported to them (Article 153), the former deciding whether a prosecution

should be initiated, pursuant to Article 148 of the Code of Criminal

Procedure. A complainant may appeal against the decision of the public

prosecutor not to institute criminal proceedings (Article 165).

49. If the suspected authors of the contested acts are military personnel,

they may also be prosecuted for causing extensive damage, endangering

human lives or damaging property, if they have not followed orders in

conformity with Article 89 of the Military Criminal Code. Proceedings in

these circumstances may be initiated by the persons concerned

(non-military) before the relevant authority under the Code of Criminal

Procedure, or before the suspected persons’ hierarchical superior

(sections 93 and 95 of Law no. 353 on the Constitution and Procedure of

Military Courts).

50. If the alleged author of a crime is a State official or civil servant,

permission to prosecute must be obtained from local administrative councils

(the Executive Committee of the Provincial Assembly). The local council

decisions may be appealed to the Supreme Administrative Court; a refusal

to prosecute is subject to an automatic appeal of this kind.

51. Proceedings may be brought against the administration before the

administrative courts in respect of fault committed in the performance of

official duties. Other illegal acts or omissions by civil servants, be it a crime

or a tort, which result in material or moral damage may be the subject of a

claim for compensation before the ordinary civil courts.

52. Damage caused by terrorist violence may be compensated out of the

Aid and Social Solidarity Fund.

53. The applicant’s representatives have previously pointed to certain

legal provisions which in themselves weaken the protection of the

individual which might otherwise have been afforded by the above general

scheme.

PROCEEDINGS BEFORE THE COMMISSION

54. In his application (no. 23818/94) to the Commission introduced on

25 March 1994 Mr Ergi, relying on Articles 2, 8, 13, 14 and 18 of the

Convention, complained of the unlawful killing of his sister by soldiers.

55. The Commission declared the application admissible on 2 March

1995. In its report of 20 May 1997 (Article 31), it decided to pursue its

examination of the application (unanimously) and expressed the opinion

that there had been a violation of Article 2 on account of the planning and

3894


is thus not persuaded that there exist any exceptional circumstances

compelling it to reach a different conclusion from that of the Commission

which, as already indicated, has the primary task of establishment and

verification of the facts. Accordingly, the Court too considers that there is

an insufficient factual and evidentiary basis on which to conclude that the

applicant’s sister was, beyond reasonable doubt, intentionally killed by the

security forces in the circumstances alleged by the applicant.

(b) Alleged failure to comply with other requirements of Article 2

(i) As to the planning and conduct of the operation

79. At the outset, the Court notes that, on the Government’s own

account, the security forces had carried out an ambush operation and had

engaged in an armed clash with the PKK in the vicinity of the village (see

paragraphs 16–17 above). As mentioned above, they disputed, and the Court

has not found it established, that the bullet which killed Havva Ergi was

fired by the security forces. However, the Court is not convinced by the

Government’s submission that it is inappropriate for the Court to review

whether the planning and conduct of the operation was consistent with

Article 2 of the Convention.

In this regard, it is to be recalled that the text of this provision (see

paragraph 68 above), read as a whole, demonstrates that paragraph 2 does

not primarily define instances where it is permitted intentionally to kill an

individual, but describes the situations where it is permitted to “use force”

which may result, as an unintended outcome, in the deprivation of life. The

use of the term “absolutely necessary” suggests that a stricter and more

compelling test of necessity must be employed from that normally

applicable when determining whether State action is “necessary in a

democratic society” under paragraph 2 of Articles 8 to 11 of the

Convention. In particular, the force used must be strictly proportionate to

the achievement of the aims set out in sub-paragraphs 2 (a), (b) and (c) of

Article 2. In keeping with the importance of this provision in a democratic

society, the Court must, in making its assessment, subject deprivations of

life to the most careful scrutiny, particularly where deliberate lethal force is

used, taking into consideration not only the actions of the agents of the State

who actually administer the force but also all the surrounding

circumstances, including such matters as the planning and control of the

actions under examination (see the above-mentioned McCann and Others

judgment, p. 46, §§ 148–50).

Furthermore, under Article 2 of the Convention, read in conjunction with

Article 1, the State may be required to take certain measures in order to

“secure” an effective enjoyment of the right to life.

In the light of the above considerations, the Court agrees with the

Commission that the responsibility of the State is not confined to

3893


circumstances where there is significant evidence that misdirected fire from

agents of the State has killed a civilian. It may also be engaged where they

fail to take all feasible precautions in the choice of means and methods of a

security operation mounted against an opposing group with a view to

avoiding and, in any event, to minimising, incidental loss of civilian life.

Thus, even though it has not been established beyond reasonable doubt

that the bullet which killed Havva Ergi had been fired by the security forces,

the Court must consider whether the security forces’ operation had been

planned and conducted in such a way as to avoid or minimise, to the

greatest extent possible, any risk to the lives of the villagers, including from

the fire-power of the PKK members caught in the ambush.

80. Turning to the particular circumstances of the case, the Court

observes, on the one hand, that the Commission stated that its ability to

make an assessment of how the operation had been planned and executed

had been limited due to the lack of information provided by the

Government. It had no information as to who took part in the operation, in

what circumstances the security forces had opened fire and what steps had

been taken by the security forces once the clash had developed (see

paragraphs 35–37 above).

On the other hand, the gendarmerie officers’ testimonies to the

Commission had suggested that the ambush was organised in the north-west

of the village without the distance between the village and the ambush being

known. It was to be anticipated that PKK terrorists could have approached

the village either following the path from the north or proceeding down the

river bed to the north-east and in the latter event, they would have been able

to penetrate to the edge of the village without being seen by the security

forces to the north-west.

The Commission found on the evidence that security forces had been

present in the south (see paragraph 41 above). In these circumstances, the

villagers had been placed at considerable risk of being caught in cross-fire

between security forces and any PKK terrorists who had approached from

the north or north-east. Even if it might be assumed that the security forces

would have responded with due care for the civilian population in returning

fire against terrorists caught in the approaches to the village, it could not be

assumed that the terrorists would have responded with such restraint. There

was no information to indicate that any steps or precautions had been taken

to protect the villagers from being caught up in the conflict.

Accordingly, in the absence of evidence from gendarmes involved in the

planning and conduct of the operation, the Commission was not satisfied

that the ambush operation carried out close to Kesentaş village had been

implemented with the requisite care for the lives of the civilian population.

3892


81. The Court, having regard to the Commission’s findings (see

paragraphs 34–41 above) and to its own assessment, considers that it was

probable that the bullet which killed Havva Ergi had been fired from the

south or south-east, that the security forces had been present in the south

and that there had been a real risk to the lives of the civilian population

through being exposed to cross-fire between the security forces and the

PKK. In the light of the failure of the authorities of the respondent State to

adduce direct evidence on the planning and conduct of the ambush

operation, the Court, in agreement with the Commission, finds that it can

reasonably be inferred that insufficient precautions had been taken to protect

the lives of the civilian population.

(ii) As to the alleged inadequacy of the investigation

82. In addition, the Court has attached particular weight to the

procedural requirement implicit in Article 2 of the Convention. It recalls

that, according to its case-law, the obligation to protect the right to life

under Article 2, read in conjunction with the State’s general duty under

Article 1 to “secure to everyone within [its] jurisdiction the rights and

freedoms defined in [the] Convention”, requires by implication that there

should be some form of effective official investigation when individuals

have been killed as a result of the use of force by, inter alios, agents of the

State (see the above-mentioned McCann and Others judgment, p. 49, § 161;

and also the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I,

pp. 322, 324, §§ 78, 86). Thus, contrary to what is asserted by the

Government (see paragraph 75 above), this obligation is not confined to

cases where it has been established that the killing was caused by an agent

of the State. Nor is it decisive whether members of the deceased’s family or

others have lodged a formal complaint about the killing with the relevant

investigatory authority. In the case under consideration, the mere knowledge

of the killing on the part of the authorities gave rise ipso facto to an

obligation under Article 2 of the Convention to carry out an effective

investigation into the circumstances surrounding the death.

83. However, the Court is struck by the heavy reliance placed by

Mustafa Yüce, the public prosecutor who had the obligation to carry out an

investigation into Havva Ergi’s death, on the conclusion of the gendarmerie

incident report that it was the PKK which had shot the applicant’s sister (see

paragraph 43 above). The prosecutor had explained to the delegates that

only if there had been any elements contradicting this conclusion would he

have considered that any other investigatory measures would have been

necessary (see paragraph 28 above). He also seemed to consider that the

onus was on the deceased’s relatives to alert him to any suspicion of

wrongdoing on the part of the security forces and they had not approached

him in this case (ibid.). In the absence of any such elements of suspicion, he

had issued a decision of lack of jurisdiction indicating that the PKK was

3891


suspected of the killing, without having taken statements from members of

the victim’s family, villagers or any military personnel present during the

operation (see paragraphs 28–43 above).

This being so, it had not been apparent from the incident report in

question or the sketch map that it was the PKK which had fired the bullet

which killed the applicant’s sister.

In addition, the report itself had been drafted by a gendarmerie

commander, İsa Gündoğdu, who had not himself been present during the

clash (see paragraph 35 above) and who had stated that he was unaware of

the identity of any of the officers or units involved and that his information

as to what occurred was derived from apparently brief coded radio

transmissions (see paragraph 36 above). However, the public prosecutor had

not investigated the circumstances surrounding the killing of Havva Ergi

and for that reason could not have been apprised of these documents.

84. Nor was any detailed consideration given by either the district

gendarmerie commander or the public prosecutor to verifying whether the

security forces had conducted the operation in a proper manner. Although

Ahmet Kuzu had stated to the delegates that the operations should as far as

possible not be planned in or about civilian areas and that in the instant case

the plan had been to restrict the activity to the north of the village, it would

appear that no inquiry was conducted into whether the plan and its

implementation had been inadequate in the circumstances of the case (see


85. In the light of the foregoing, the Court, like the Commission, finds

that the authorities failed to carry out an effective investigation into the

circumstances surrounding Havva Ergi’s death. It is mindful, as indicated in

previous judgments concerning Turkey, of the fact that loss of life is a tragic

and frequent occurrence in the security situation in south-east Turkey (see,

for instance, the above-mentioned Aydın and Kaya judgments, respectively

at paragraphs 14 and 91). However, neither the prevalence of violent armed

clashes nor the high incidence of fatalities can displace the obligation under

Article 2 to ensure that an effective, independent investigation is conducted

into the deaths arising out of clashes involving the security forces, more so

in cases such as the present where the circumstances are in many respects

unclear (ibid.).

(iii) Overall conclusion

86. Having regard to the above considerations, the Court finds that the

Turkish authorities failed to protect Havva Ergi’s right to life on account of

the defects in the planning and conduct of the security forces’ operation and

the lack of an adequate and effective investigation. Accordingly, there has

been a violation of Article 2 of the Convention.

3890

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3889


COUNCILOF EUROPE



CASE OF GÜLEÇ v. TURKEY

(54/1997/838/1044)

JUDGMENT

STRASBOURG

27 July 1998






3888

GÜLEÇ JUDGMENT OF 27 JULY 1998 35

ideological outlook and a complete lack of objectivity”, scarcely reflected

an objective attitude and a determination to investigate the accusations

against the gendarmes seriously.

Analysing a number of aspects of the way in which the investigation was

conducted in the present case, the Commission noted several serious

shortcomings and expressed the opinion that Article 2 had been breached as

regards its procedural implications also.

2. The Court’s assessment

77. The general legal prohibition of arbitrary killing by the agents of the

State laid down in Article 2 would be ineffective, in practice, if there existed

no procedure for reviewing the lawfulness of the use of lethal force by State

authorities. The obligation to protect the right to life under this provision,

read in conjunction with the State’s general duty under Article 1 of the

Convention to “secure to everyone within [its] jurisdiction the rights and

freedoms defined in [the] Convention”, requires by implication that there

should be some form of effective official investigation when individuals

have been killed as a result of the use of force by, inter alios, agents of the

State (see the McCann and Others v. the United Kingdom judgment of

27 September 1995, Series A no. 324, p. 50, § 169, and the Kaya judgment

cited above, p. 324, § 86).

78. The procedural protection for the right to life inherent in Article 2 of

the Convention means that agents of the State must be accountable for their

use of lethal force; their actions must be subjected to some form of

independent and public scrutiny capable of determining whether the force

used was or was not justified in a particular set of circumstances (see, most

recently, the Kaya judgment cited above, p. 324, § 87).

79. The Court observes that the Government blamed the PKK for

Ahmet Güleç’s death. In the first place, the report on the incidents drawn up

by the commanding officers of the gendarmerie, the İdil police and the army

indicates that the security forces were convinced that this death was the

result of a “shot fired by armed troublemakers who had mingled with the

demonstrators” (see paragraph 17 above). Similarly, in its letter of 14 June

1991 replying to the İdil District Commissioner’s letter of 12 June, the

gendarmerie asserted without any reservation that the demonstration had

been “organised by terrorist militants from the PKK” and that “the

infiltration of armed militants among the people and the use of weapons

during the demonstration show how serious the situation was” (see

paragraph 23 above). This same document also reveals the lack of

cooperation by the gendarmerie, which announced that it could not supply

the names of the soldiers who had been on board the armoured vehicle.

3887


The investigating officer does not seem to have had any doubt about the

official version of events when, in his inquiry report, he maintained, inter

alia, that the victim’s father had made “gratuitous and inopportune

accusations against Major M. Karatan” which revealed “an ideological

outlook and a complete lack of objectivity”. He maintained that the security

forces had not aimed at the citizens or returned fire from the crowd, and that

they had twice as many wounded as the demonstrators. On that basis he

argued that it was impossible “to determine who was responsible for the

incidents” (see paragraph 27 above).

In addition, investigating officer Kurt merely interviewed a few people

without bothering to summon warrant-officer Ayhan or other witnesses,

such as Cüda Demir. The Court considers that the statements of the two

last-mentioned witnesses are of fundamental importance, since Mr Ayhan

was the driver of the Condor and Ms Demir was standing at the applicant’s

son’s side when he was hit by the bullet fragment which caused his death.

A reconstruction of the events would have made it possible to determine

the trajectory of the bullet fragment and the position of the weapon that had

fired it. Similarly a metallurgical analysis of the fragment would have made

it possible to identify its maker and supplier, and consequently the type of

weapon used. Furthermore, no one seems to have taken any interest in the

source of the bullet which passed through Ahmet Güleç’s body, following a

downward trajectory, which is perfectly consistent with fire having been

opened from the Condor’s turret.

80. The Court further observes that Şırnak Provincial Administrative

Council decided, on 18 October 1991, that there was no case to refer to the

criminal courts, on the ground that it was “not possible on the basis of the

evidence on the case file to identify who had killed and injured the victims”

(see paragraph 28 above). Such a conclusion cannot be accepted, regard

being had to the subjectivity shown by investigating officer Kurt and the

nature of the administrative authority concerned, which was chaired by the

Provincial Governor (who appointed the investigating officers and was in

charge of the local gendarmerie) or his deputy, and composed of local

representatives of the executive (the Director of Public Health and the

Director of Agriculture, for example). Subsequently, on 13 November 1991,

the Supreme Administrative Court noted that the Administrative Council

had made a discontinuation order. Consequently, “[s]ince those responsible

for the deaths and woundings [were] unknown”, it was “impossible [for the

court] to look into the case and give judgment” (see paragraph 29 above).

3886


81. Loss of life is unfortunately a frequent occurrence in south-east

Turkey in view of the security situation there (see the above-mentioned

Kaya judgment, p. 326, § 91). However, neither the prevalence of violent

armed clashes nor the high incidence of fatalities can displace the obligation

under Article 2 to ensure that an effective, independent investigation is

conducted into deaths arising out of clashes involving the security forces,

or, as in the present case, a demonstration, however illegal it may have

been.

82. That being so, the Court, like the Commission, concludes that the

investigation was not thorough nor was it conducted by independent

authorities. What is more, it was conducted without the participation of the

complainant, who did not receive notice of the order of 18 October 1991 or

the decision of 13 November 1991.

C. Conclusion

83. Consequently, there has been a breach of Article 2 of the Convention

on account of the use of disproportionate force and the lack of a thorough

investigation into the circumstances of the applicant’s son’s death.

III. APPLICATION OF ARTICLE 50 OF THE CONVENTION

84. Under Article 50 of the Convention,

“If the Court finds that a decision or a measure taken by a legal authority or any

other authority of a High Contracting Party is completely or partially in conflict with

the obligations arising from the ... Convention, and if the internal law of the said Party

allows only partial reparation to be made for the consequences of this decision or

measure, the decision of the Court shall, if necessary, afford just satisfaction to the

injured party.”

A. Damage

85. The applicant claimed 400,000 French francs (FRF) for pecuniary

damage and FRF 100,000 for non-pecuniary damage. His son Ahmet, who

was a senior-high-school pupil and the family’s eldest child, worked after

school. His death had deprived the applicant of valuable financial support

and had caused him very great distress.

86. The Government asked the Court to dismiss these claims, arguing

that there had been no breach of the Convention. The finding of a violation,

if that were the Court’s decision, would be sufficient to make good the

non-pecuniary damage, but no sum should be awarded for pecuniary

damage.

87. The Delegate of the Commission did not express an opinion.

3885

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3884


COUNCILOF EUROPE



COURT (GRAND CHAMBER)

CASE OF McCANN AND OTHERS v. THE UNITED KINGDOM

(Application no. 18984/91)

JUDGMENT

STRASBOURG

27 September 1995

3883

McCANN AND OTHERS v. THE UNITED KINGDOM JUDGMENT 39

governing the use of force which carefully reflect the national standard as

well as the substance of the Convention standard (see paragraphs 16, 18 and

136-37 above).

(b) Adequacy of the inquest proceedings as an investigative mechanism

157. The applicants also submitted under this head, with reference to

the relevant standards contained in the UN Force and Firearms Principles

(see paragraphs 138-39 above), that the State must provide an effective ex

post facto procedure for establishing the facts surrounding a killing by

agents of the State through an independent judicial process to which

relatives must have full access.

Together with the amici curiae, Amnesty International and British-Irish

Rights Watch and Others, they submitted that this procedural requirement

had not been satisfied by the inquest procedure because of a combination of

shortcomings. In particular, they complained that no independent police

investigation took place of any aspect of the operation leading to the

shootings; that normal scene-of-crime procedures were not followed; that

not all eyewitnesses were traced or interviewed by the police; that the

Coroner sat with a jury which was drawn from a "garrison" town with close

ties to the military; that the Coroner refused to allow the jury to be screened

to exclude members who were Crown servants; that the public interest

certificates issued by the relevant Government authorities effectively

curtailed an examination of the overall operation.

They further contended that they did not enjoy equality of representation

with the Crown in the course of the inquest proceedings and were thus

severely handicapped in their efforts to find the truth since, inter alia, they

had had no legal aid and were only represented by two lawyers; witness

statements had been made available in advance to the Crown and to the

lawyers representing the police and the soldiers but, with the exception of

ballistic and pathology reports, not to their lawyers; they did not have the

necessary resources to pay for copies of the daily transcript of the

proceedings which amounted to £500-£700.

158. The Government submitted that the inquest was an effective,

independent and public review mechanism which more than satisfied any

procedural requirement which might be read into Article 2 para. 1 (art. 2-1)

of the Convention. In particular, they maintained that it would not be

appropriate for the Court to seek to identify a single set of standards by

which all investigations into the circumstances of death should be assessed.

Moreover, it was important to distinguish between such an investigation and

civil proceedings brought to seek a remedy for an alleged violation of the

right to life. Finally, they invited the Court to reject the contention by the

intervenors British-Irish Rights Watch and Others that a violation of Article

2 para. 1 (art. 2-1) will have occurred whenever the Court finds serious

3882

McCANN AND OTHERS v. THE UNITED KINGDOM JUDGMENT 40

differences between the UN Principles on Extra-Legal Executions and the

investigation conducted into any particular death (see paragraph 140 above).

159. For the Commission, the inquest subjected the actions of the State

to extensive, independent and highly public scrutiny and thereby provided

sufficient procedural safeguards for the purposes of Article 2 (art. 2) of the

Convention.

160. The Court considers that it is unnecessary to decide in the present

case whether a right of access to court to bring civil proceedings in

connection with deprivation of life can be inferred from Article 2 para. 1

(art. 2-1) since this is an issue which would be more appropriately

considered under Articles 6 and 13 (art. 6, art. 13) of the Convention -

provisions (art. 6, art. 13) that have not been invoked by the applicants.

161. The Court confines itself to noting, like the Commission, that a

general legal prohibition of arbitrary killing by the agents of the State would

be ineffective, in practice, if there existed no procedure for reviewing the

lawfulness of the use of lethal force by State authorities. The obligation to

protect the right to life under this provision (art. 2), read in conjunction with

the State's general duty under Article 1 (art. 2+1) of the Convention to

"secure to everyone within their jurisdiction the rights and freedoms defined

in [the] Convention", requires by implication that there should be some

form of effective official investigation when individuals have been killed as

a result of the use of force by, inter alios, agents of the State.

162. However, it is not necessary in the present case for the Court to

decide what form such an investigation should take and under what

conditions it should be conducted, since public inquest proceedings, at

which the applicants were legally represented and which involved the

hearing of seventy-nine witnesses, did in fact take place. Moreover, the

proceedings lasted nineteen days and, as is evident from the inquest's

voluminous transcript, involved a detailed review of the events surrounding

the killings. Furthermore, it appears from the transcript, including the

Coroner's summing-up to the jury, that the lawyers acting on behalf of the

applicants were able to examine and cross-examine key witnesses, including

the military and police personnel involved in the planning and conduct of

the anti-terrorist operation, and to make the submissions they wished to

make in the course of the proceedings.

163. In light of the above, the Court does not consider that the alleged

various shortcomings in the inquest proceedings, to which reference has

been made by both the applicants and the intervenors, substantially

hampered the carrying out of a thorough, impartial and careful examination

of the circumstances surrounding the killings.

164. It follows that there has been no breach of Article 2 para. 1 (art. 2-

1) of the Convention on this ground.

3881

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3880


COUNCILOF EUROPE



CASE OF OSMAN v. THE UNITED KINGDOM

(87/1997/871/1083)

JUDGMENT

STRASBOURG

28 October 1998






3879

OSMAN JUDGMENT OF 28 OCTOBER 1998 32

a duty of care in relation to negligence actions against the police (see

paragraphs 90–97 above) demonstrated any lack of protection to the right to

life in the domestic law of the respondent State.

B. The Court’s assessment

1. As to the establishment of the facts

113. The Court notes that there was never any independent judicial

determination at the domestic level of the facts of the instant case. The

Commission on the basis of the pleadings of the parties and the hearing

which it held in the case made its own findings on the course of events in

the case up until the time of the armed attack by Paget-Lewis on Ali and

Ahmet Osman on 7 March 1988 (see paragraphs 67–71 above). According

to the applicants, the Commission overlooked in its findings of fact the

importance of certain events which they claim have a bearing on the level of

knowledge which can be imputed to the police in respect of the seriousness

of the danger which Paget-Lewis represented for the lives of the Osman

family (see paragraph 10 above).

114. The Court observes that it is called on to determine whether the

facts of the instant case disclose a failure by the authorities of the

respondent State to protect the right to life of Ali and Ahmet Osman, in

breach of Article 2 of the Convention. In addressing that issue, and having

due regard to the Commission’s role under the Convention in the

establishment and verification of the facts of a case, it will assess this issue

in accordance with its usual practice in the light of all the material placed

before it by the applicants and by the Government or, if necessary, material

obtained of its own motion (see the Ireland v. the United Kingdom

judgment of 18 January 1978, Series A no. 25, p. 64, § 160; and the

McCann and Others v. the United Kingdom judgment of 27 September

1995, Series A no. 324, p. 51, § 173).

2. As to the alleged failure of the authorities to protect the rights to life of

Ali and Ahmet Osman

115. The Court notes that the first sentence of Article 2 § 1 enjoins the

State not only to refrain from the intentional and unlawful taking of life, but

also to take appropriate steps to safeguard the lives of those within its

jurisdiction (see the L.C.B. v. the United Kingdom judgment of 9 June

1998, Reports of Judgments and Decisions 1998-III, p. 1403, § 36). It is

common ground that the State’s obligation in this respect extends beyond its

primary duty to secure the right to life by putting in place effective criminal-

law provisions to deter the commission of offences against the person

backed up by law-enforcement machinery for the prevention, suppression

3878


and sanctioning of breaches of such provisions. It is thus accepted by those

appearing before the Court that Article 2 of the Convention may also imply

in certain well-defined circumstances a positive obligation on the authorities

to take preventive operational measures to protect an individual whose life

is at risk from the criminal acts of another individual. The scope of this

obligation is a matter of dispute between the parties.

116. For the Court, and bearing in mind the difficulties involved in

policing modern societies, the unpredictability of human conduct and the

operational choices which must be made in terms of priorities and resources,

such an obligation must be interpreted in a way which does not impose an

impossible or disproportionate burden on the authorities. Accordingly, not

every claimed risk to life can entail for the authorities a Convention

requirement to take operational measures to prevent that risk from

materialising. Another relevant consideration is the need to ensure that the

police exercise their powers to control and prevent crime in a manner which

fully respects the due process and other guarantees which legitimately place

restraints on the scope of their action to investigate crime and bring

offenders to justice, including the guarantees contained in Articles 5 and 8

of the Convention.

In the opinion of the Court where there is an allegation that the

authorities have violated their positive obligation to protect the right to life

in the context of their above-mentioned duty to prevent and suppress

offences against the person (see paragraph 115 above), it must be

established to its satisfaction that the authorities knew or ought to have

known at the time of the existence of a real and immediate risk to the life of

an identified individual or individuals from the criminal acts of a third party

and that they failed to take measures within the scope of their powers which,

judged reasonably, might have been expected to avoid that risk. The Court

does not accept the Government’s view that the failure to perceive the risk

to life in the circumstances known at the time or to take preventive

measures to avoid that risk must be tantamount to gross negligence or wilful

disregard of the duty to protect life (see paragraph 107 above). Such a rigid

standard must be considered to be incompatible with the requirements of

Article 1 of the Convention and the obligations of Contracting States under

that Article to secure the practical and effective protection of the rights and

freedoms laid down therein, including Article 2 (see, mutatis mutandis, the

above-mentioned McCann and Others judgment, p. 45, § 146). For the

Court, and having regard to the nature of the right protected by Article 2, a

right fundamental in the scheme of the Convention, it is sufficient for an

applicant to show that the authorities did not do all that could be reasonably

expected of them to avoid a real and immediate risk to life of which they

have or ought to have knowledge. This is a question which can only be

answered in the light of all the circumstances of any particular case.

3877


On the above understanding the Court will examine the particular

circumstances of this case.

117. The Court observes, like the Commission, that the concerns of the

school about Paget-Lewis’ disturbing attachment to Ahmet Osman can be

reasonably considered to have been communicated to the police over the

course of the five meetings which took place between 3 March and 4 May

1987 (see paragraphs 21 and 27 above), having regard to the fact that

Mr Prince’s decision to call in the police in the first place was motivated by

the allegations which Mrs Green had made against Paget-Lewis and the

school’s follow-up to those allegations. It may for the same reason be

reasonably accepted that the police were informed of all relevant connected

matters which had come to light by 4 May 1987 including the graffiti

incident, the theft of the school files and Paget-Lewis’ change of name.

It is the applicants’ contention that by that stage the police should have

been alert to the need to investigate further Paget-Lewis’ alleged

involvement in the graffiti incident and the theft of the school files or to

keep a closer watch on him given their awareness of the obsessive nature of

his behaviour towards Ahmet Osman and how that behaviour manifested

itself. The Court for its part is not persuaded that the police’s failure to do

so at this stage can be impugned from the standpoint of Article 2 having

regard to the state of their knowledge at that time. While Paget-Lewis’

attachment to Ahmet Osman could be judged by the police officers who

visited the school to be most reprehensible from a professional point of

view, there was never any suggestion that Ahmet Osman was at risk

sexually from him, less so that his life was in danger. Furthermore,

Mr Perkins, the deputy headmaster, alone had reached the conclusion that

Paget-Lewis had been responsible for the graffiti in the neighbourhood of

the school and the theft of the files. However Paget-Lewis had denied all

involvement when interviewed by Mr Perkins and there was nothing to link

him with either incident. Accordingly, at that juncture, the police’s

appreciation of the situation and their decision to treat it as a matter internal

to the school cannot be considered unreasonable.

Like the Commission (see paragraph 68 above), the Court is not

persuaded either that the ILEA official’s memorandum and internal notes

written between 14 April and 8 May 1987 are an accurate reflection of how

the discussions between Mr Prince and the police officers wound up (see


118. The applicants have attached particular weight to Paget-Lewis’

mental condition and in particular to his potential to turn violent and to

direct that violence at Ahmet Osman. However, it is to be noted that Paget-

Lewis continued to teach at the school up until June 1987. Dr Ferguson

examined him on three occasions and was satisfied that he was not mentally

ill. On 7 August 1987 he was allowed to resume teaching, although not at

Homerton House (see paragraph 35 above). It is most improbable that the

3876


decision to lift his suspension from teaching duties would have been made if

it had been believed at the time that there was the slightest risk that he

constituted a danger to the safety of young people in his charge. The

applicants are especially critical of Dr Ferguson’s psychiatric assessment of

Paget-Lewis. However, that assessment was made on the basis of three

separate interviews with Paget-Lewis and if it appeared to a professional

psychiatrist that he did not at the time display any signs of mental illness or

a propensity to violence it would be unreasonable to have expected the

police to have construed the actions of Paget-Lewis as they were reported to

them by the school as those of a mentally disturbed and highly dangerous

individual.

119. In assessing the level of knowledge which can be imputed to the

police at the relevant time, the Court has also had close regard to the series

of acts of vandalism against the Osmans’ home and property between May

and November 1987 (see paragraphs 30, 36 and 37 above). It observes

firstly that none of these incidents could be described as life-threatening and

secondly that there was no evidence pointing to the involvement of Paget-

Lewis. This was also the view of Detective Sergeant Boardman in his report

on the case in mid-December 1987 having interviewed the Green and

Osman families, visited the school and taken stock of the file (see

paragraphs 42–45 above). The completeness of Detective Sergeant

Boardman’s report and the assessment he made in the knowledge of all the

allegations made against Paget-Lewis would suggest that even if it were to

be assumed that the applicants are correct in their assertions that the police

did not keep records of the reported incidents of vandalism and of their

meetings with the school and ILEA officials, this failing could not be said to

have prevented them from apprehending at an earlier stage any real threat to

the lives of the Osman family or that the irrationality of Paget-Lewis’

behaviour concealed a deadly disposition. The Court notes in this regard

that when the decision was finally taken to arrest Paget-Lewis it was not

based on any perceived risk to the lives of the Osman family but on his

suspected involvement in acts of minor criminal damage (see paragraph 49

above).

120. The Court has also examined carefully the strength of the

applicants’ arguments that Paget-Lewis on three occasions communicated to

the police, either directly or indirectly, his murderous intentions (see

paragraph 105 above). However, in its view these statements cannot be

reasonably considered to imply that the Osman family were the target of his

threats and to put the police on notice of such. The applicants rely in

particular on Paget-Lewis’ threat to “do a sort of Hungerford” which they

allege he uttered at the meeting with ILEA officers on 15 December 1987

(see paragraph 46 above). The Government have disputed that these words

were said on that occasion, but even taking them at their most favourable to

the applicants’ case, it would appear more likely that they were uttered with

3875


respect to Mr Perkins whom he regarded as principally to blame for being

forced to leave his teaching post at Homerton House. Furthermore, the fact

that Paget-Lewis is reported to have intimated to the driver of the car with

which he collided on 7 December 1987 that he was on the verge of

committing some terrible deed (see paragraphs 38 and 40 above) could not

reasonably be taken at the time to be a veiled reference to a planned attack

on the lives of the Osman family. The Court must also attach weight in this

respect to the fact that, even if Paget-Lewis had deliberately rammed the

vehicle as alleged, that act of hostility was in all probability directed at

Leslie Green, the passenger in the vehicle. Nor have the applicants adduced

any further arguments which would enhance the weight to be given to

Paget-Lewis’ claim that he had told PC Adams that he was in danger of

doing something criminally insane (see paragraph 37 above). In any event,

as with his other cryptic threats, this statement could not reasonably be

construed as a threat against the lives of the Osman family.

121. In the view of the Court the applicants have failed to point to any

decisive stage in the sequence of the events leading up to the tragic shooting

when it could be said that the police knew or ought to have known that the

lives of the Osman family were at real and immediate risk from Paget-

Lewis. While the applicants have pointed to a series of missed opportunities

which would have enabled the police to neutralise the threat posed by Paget-

Lewis, for example by searching his home for evidence to link him with the

graffiti incident or by having him detained under the Mental Health Act

1983 or by taking more active investigative steps following his

disappearance, it cannot be said that these measures, judged reasonably,

would in fact have produced that result or that a domestic court would have

convicted him or ordered his detention in a psychiatric hospital on the basis

of the evidence adduced before it. As noted earlier (see paragraph 116

above), the police must discharge their duties in a manner which is

compatible with the rights and freedoms of individuals. In the circumstances

of the present case, they cannot be criticised for attaching weight to the

presumption of innocence or failing to use powers of arrest, search and

seizure having regard to their reasonably held view that they lacked at

relevant times the required standard of suspicion to use those powers or that

any action taken would in fact have produced concrete results.

122. For the above reasons, the Court concludes that there has been no

violation of Article 2 of the Convention in this case.

3874

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3873

Inter-American Court of Human Rights

Case of Velásquez-Rodríguez v. Honduras

Judgment of July 29, 1988 (Merits)

In the Velásquez Rodríguez case,

The Inter-American Court of Human Rights, composed of the following judges:

Rafael Nieto-Navia, President Héctor Gros Espiell, Vice President Rodolfo E. Piza E., Judge Thomas Buergenthal, Judge Pedro Nikken, Judge Héctor Fix-Zamudio, Judge Rigoberto Espinal Irías, Judge ad hoc

Also present:

Charles Moyer, Secretary Manuel Ventura, Deputy Secretary

delivers the following judgment pursuant to Article 44 (1) of its Rules of Procedure (hereinafter "the Rules of Procedure") in the instant case submitted by the Inter-American Commission on Human Rights against the State of Honduras.

1. The Inter-American Commission on Human Rights (hereinafter "the Commission") submitted the instant case to the Inter-American Court of Human Rights (hereinafter "the Court") on April 24, 1986. It originated in a petition (No. 7920) against the State of Honduras (hereinafter "Honduras" or "the Government"), which the Secretariat of the Commission received on October 7, 1981.

2. In submitting the case, the Commission invoked Articles 50 and 51 of the American Convention on Human Rights (hereinafter "the Convention" or "the American Convention") and requested that the Court determine whether the State in question had violated Articles 4 (Right to Life), 5 (Right to Humane Treatment) and 7 (Right to Personal Liberty) of the Convention in the case of Angel Manfredo Velásquez Rodríguez (also known as Manfredo Velásquez). In addition, the Commission asked the Court to rule that "the consequences of the situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party or parties."

3. According to the petition filed with the Commission, and the supplementary information received subsequently, Manfredo Velásquez, a student at the National Autonomous University of Honduras, "was violently detained without a warrant for his arrest by members of the National Office of Investigations (DNI) and G-2 of the Armed Forces of Honduras." The detention took

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159. The Commission has asked the Court to find that Honduras has violated the rights guaranteed to Manfredo Velásquez by Articles 4, 5 and 7 of the Convention. The Government has denied the charges and seeks to be absolved.

160. This requires the Court to examine the conditions under which a particular act, which violates one of the rights recognized by the Convention, can be imputed to a State Party thereby establishing its international responsibility.

161. Article 1 (1) of the Convention provides:

Article 1. Obligation to Respect Rights

1. The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.

162. This article specifies the obligation assumed by the States Parties in relation to each of the rights protected. Each claim alleging that one of those rights has been infringed necessarily implies that Article 1 (1) of the Convention has also been violated.

163. The Commission did not specifically allege the violation of Article 1 (1) of the Convention, but that does not preclude the Court from applying it. The precept contained therein constitutes the generic basis of the protection of the rights recognized by the Convention and would be applicable, in any case, by virtue of a general principle of law, iura novit curia, on which international jurisprudence has repeatedly relied and under which a court has the power and the duty to apply the juridical provisions relevant to a proceeding, even when the parties do not expressly invoke them ("Lotus", Judgment No. 9, 1927, P.C.I.J., Series A No. 10, p. 31 and Eur. Court H.R., Handyside Case, Judgment of 7 December 1976, Series A No. 24, para. 41).

164. Article 1 (1) is essential in determining whether a violation of the human rights recognized by the Convention can be imputed to a State Party. In effect, that article charges the States Parties with the fundamental duty to respect and guarantee the rights recognized in the Convention. Any impairment of those rights which can be attributed under the rules of international law to the action or omission of any public authority constitutes an act imputable to the State, which assumes responsibility in the terms provided by the Convention.

165. The first obligation assumed by the States Parties under Article 1 (1) is "to respect the rights and freedoms" recognized by the Convention. The exercise of public authority has certain limits which derive from the fact that human rights are inherent attributes of human dignity and are, therefore, superior to the power of the State. On another occasion, this court stated:

The protection of human rights, particularly the civil and political rights set forth in the Convention, is in effect based on the affirmation of the existence of certain inviolable attributes of the individual that cannot be legitimately restricted through the exercise of governmental power. There are individual domains that are beyond the reach of the State or to which the State has but limited access. Thus, the protection of human rights must necessarily comprise the concept of the restriction of the exercise of state power (The Word "Laws" in Article 30 of the American Convention on Human Rights, Advisory Opinion OC-6/86 of May 9, 1986. Series A No. 6, para 21).

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30

166. The second obligation of the States Parties is to "ensure" the free and full exercise of the rights recognized by the Convention to every person subject to its jurisdiction. This obligation implies the duty of States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation.

167. The obligation to ensure the free and full exercise of human rights is not fulfilled by the existence of a legal system designed to make it possible to comply with this obligation --it also requires the government to conduct itself so as to effectively ensure the free and full exercise of human rights.

168. The obligation of the States is, thus, much more direct than that contained in Article 2, which reads:

Article 2. Domestic Legal Effects

Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.

169. According to Article 1 (1), any exercise of public power that violates the rights recognized by the Convention is illegal. Whenever a State organ, official or public entity violates one of those rights, this constitutes a failure of the duty to respect the rights and freedoms set forth in the Convention.

170. This conclusion is independent of whether the organ or official has contravened provisions of internal law or overstepped the limits of his authority: under international law a State is responsible for the acts of its agents undertaken in their official capacity and for their omissions, even when those agents act outside the sphere of their authority or violate internal law.

171. This principle suits perfectly the nature of the Convention, which is violated whenever public power is used to infringe the rights recognized therein. If acts of public power that exceed the State's authority or are illegal under its own laws were not considered to compromise that State's obligations under the treaty, the system of protection provided for in the Convention would be illusory.

172. Thus, in principle, any violation of rights recognized by the Convention carried out by an act of public authority or by persons who use their position of authority is imputable to the State. However, this does not define all the circumstances in which a State is obligated to prevent, investigate and punish human rights violations, nor all the cases in which the State might be found responsible for an infringement of those rights. An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.

173. Violations of the Convention cannot be founded upon rules that take psychological factors into account in establishing individual culpability. For the purposes of analysis, the intent or

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motivation of the agent who has violated the rights recognized by the Convention is irrelevant --the violation can be established even if the identity of the individual perpetrator is unknown. What is decisive is whether a violation of the rights recognized by the Convention has occurred with the support or the acquiescence of the government, or whether the State has allowed the act to take place without taking measures to prevent it or to punish those responsible. Thus, the Court's task is to determine whether the violation is the result of a State's failure to fulfill its duty to respect and guarantee those rights, as required by Article 1 (1) of the Convention.

174. The State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation.

175. This duty to prevent includes all those means of a legal, political, administrative and cultural nature that promote the protection of human rights and ensure that any violations are considered and treated as illegal acts, which, as such, may lead to the punishment of those responsible and the obligation to indemnify the victims for damages. It is not possible to make a detailed list of all such measures, since they vary with the law and the conditions of each State Party. Of course, while the State is obligated to prevent human rights abuses, the existence of a particular violation does not, in itself, prove the failure to take preventive measures. On the other hand, subjecting a person to official, repressive bodies that practice torture and assassination with impunity is itself a breach of the duty to prevent violations of the rights to life and physical integrity of the person, even if that particular person is not tortured or assassinated, or if those facts cannot be proven in a concrete case.

176. The State is obligated to investigate every situation involving a violation of the rights protected by the Convention. If the State apparatus acts in such a way that the violation goes unpunished and the victim's full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction. The same is true when the State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized by the Convention.

177. In certain circumstances, it may be difficult to investigate acts that violate an individual's rights. The duty to investigate, like the duty to prevent, is not breached merely because the investigation does not produce a satisfactory result. Nevertheless, it must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government. This is true regardless of what agent is eventually found responsible for the violation. Where the acts of private parties that violate the Convention are not seriously investigated, those parties are aided in a sense by the government, thereby making the State responsible on the international plane.

178. In the instant case, the evidence shows a complete inability of the procedures of the State of Honduras, which were theoretically adequate, to carry out an investigation into the disappearance of Manfredo Velásquez, and of the fulfillment of its duties to pay compensation and punish those responsible, as set out in Article 1 (1) of the Convention.

179 As the Court has verified above, the failure of the judicial system to act upon the writs brought before various tribunals in the instant case has been proven. Not one writ of habeas corpus was processed. No judge has access to the places where Manfredo Velásquez might have been detained. The criminal complaint was dismissed.

180. Nor did the organs of the Executive Branch carry out a serious investigation to establish the fate of Manfredo Velásquez. There was no investigation of public allegations of a practice of

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disappearances nor a determination of whether Manfredo Velásquez had been a victim of that practice. The Commission's requests for information were ignored to the point that the Commission had to presume, under Article 42 of its Regulations, that the allegations were true. The offer of an investigation in accord with Resolution 30/83 of the Commission resulted in an investigation by the Armed Forces, the same body accused of direct responsibility for the disappearances. This raises grave questions regarding the seriousness of the investigation. The Government often resorted to asking relatives of the victims to present conclusive proof of their allegations even though those allegations, because they involved crimes against the person, should have been investigated on the Government's own initiative in fulfillment of the State's duty to ensure public order. This is especially true when the allegations refer to a practice carried out within the Armed Forces, which, because of its nature, is not subject to private investigations. No proceeding was initiated to establish responsibility for the disappearance of Manfredo Velásquez and apply punishment under internal law. All of the above leads to the conclusion that the Honduran authorities did not take effective action to ensure respect for human rights within the jurisdiction of that State as required by Article 1 (1) of the Convention.

181. The duty to investigate facts of this type continues as long as there is uncertainty about the fate of the person who has disappeared. Even in the hypothetical case that those individually responsible for crimes of this type cannot be legally punished under certain circumstances, the State is obligated to use the means at its disposal to inform the relatives of the fate of the victims and, if they have been killed, the location of their remains.

182. The Court is convinced, and has so found, that the disappearance of Manfredo Velásquez was carried out by agents who acted under cover of public authority. However, even had that fact not been proven, the failure of the State apparatus to act, which is clearly proven, is a failure on the part of Honduras to fulfill the duties it assumed under Article 1 (1) of the Convention, which obligated it to ensure Manfredo Velásquez the free and full exercise of his human rights.

183. The Court notes that the legal order of Honduras does not authorize such acts and that internal law defines them as crimes. The Court also recognizes that not all levels of the Government of Honduras were necessarily aware of those acts, nor is there any evidence that such acts were the result of official orders. Nevertheless, those circumstances are irrelevant for the purposes of establishing whether Honduras is responsible under international law for the violations of human rights perpetrated within the practice of disappearances.

184. According to the principle of the continuity of the State in international law, responsibility exists both independently of changes of government over a period of time and continuously from the time of the act that creates responsibility to the time when the act is declared illegal. The foregoing is also valid in the area of human rights although, from an ethical or political point of view, the attitude of the new government may be much more respectful of those rights than that of the government in power when the violations occurred.

185. The Court, therefore, concludes that the facts found in this proceeding show that the State of Honduras is responsible for the involuntary disappearance of Angel Manfredo Velásquez Rodríguez. Thus, Honduras has violated Articles 7, 5 and 4 of the Convention.

186. As a result of the disappearance, Manfredo Velásquez was the victim of an arbitrary detention, which deprived him of his physical liberty without legal cause and without a determination of the lawfulness of his detention by a judge or competent tribunal. Those acts directly violate the right to personal liberty recognized by Article 7 of the Convention (supra 155) and are a violation imputable to Honduras of the duties to respect and ensure that right under Article 1 (1).

187. The disappearance of Manfredo Velásquez violates the right to personal integrity recognized by Article 5 of the Convention (supra 156). First, the mere subjection of an individual

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to prolonged isolation and deprivation of communication is in itself cruel and inhuman treatment which harms the psychological and moral integrity of the person, and violates the right of every detainee under Article 5 (1) and 5 (2) to treatment respectful of his dignity. Second, although it has not been directly shown that Manfredo Velásquez was physically tortured, his kidnapping and imprisonment by governmental authorities, who have been shown to subject detainees to indignities, cruelty and torture, constitute a failure of Honduras to fulfill the duty imposed by Article 1 (1) to ensure the rights under Article 5 (1) and 5 (2) of the Convention. The guarantee of physical integrity and the right of detainees to treatment respectful of their human dignity require States Parties to take reasonable steps to prevent situations which are truly harmful to the rights protected.

188. The above reasoning is applicable to the right to life recognized by Article 4 of the Convention (supra 157). The context in which the disappearance of Manfredo Velásquez occurred and the lack of knowledge seven years later about his fate create a reasonable presumption that he was killed. Even if there is a minimal margin of doubt in this respect, it must be presumed that his fate was decided by authorities who systematically executed detainees without trial and concealed their bodies in order to avoid punishment. This, together with the failure to investigate, is a violation by Honduras of a legal duty under Article 1 (1) of the Convention to ensure the rights recognized by Article 4 (1). That duty is to ensure every person subject to its jurisdiction the inviolability of the right to life and the right not to have one's life taken arbitrarily. These rights imply an obligation on the part of States Parties to take reasonable steps to prevent situations that could result in the violation of that right.

XII

189. Article 63 (1) of the Convention provides:

If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party.

Clearly, in the instant case the Court cannot order that the victim be guaranteed the enjoyment of the rights or freedoms violated. The Court, however, can rule that the consequences of the breach of the rights be remedied and that just compensation be paid.

190. During this proceeding the Commission requested the payment of compensation, but did not offer evidence regarding the amount of damages or the manner of payment. Neither did the parties discuss these matters.

191. The Court believes that the parties can agree on the damages. If an agreement cannot be reached, the Court shall award an amount. The case shall, therefore, remain open for that purpose. The Court reserves the right to approve the agreement and, in the event no agreement is reached, to set the amount and order the manner of payment.

192. The Rules of Procedure establish the legal procedural relations among the Commission, the State of States Parties in the case and the Court itself, which continue in effect until the case is no longer before the Court. As the case is still before the Court, the Government and the Commission should negotiate the agreement referred to in the preceding paragraph. The

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3866

Inter-American Court of Human Rights

Case of the "Street Children " (Villagran-Morales et al.) v. Guatemala

Judgment of November 19, 1999 (Merits)

In the Villagrán Morales et al. case (the “street children” case ).

The Inter-American Court of Human Rights (hereinafter “the Court” or “the Inter-American Court”) composed of the following judges**:

Antônio A. Cançado Trindade, President Máximo Pacheco Gómez, Vice-President Hernán Salgado Pesantes, Judge Oliver Jackman, Judge Alirio Abreu Burelli, Judge and Carlos Vicente de Roux Rengifo, Judge

also present,

Manuel E. Ventura Robles, Secretary and Renzo Pomi, Deputy Secretary,

pursuant to Articles 55 and 57 of the Rules of Procedure of the Inter-American Court of Human Rights (hereinafter “the Rules of Procedure”), delivers the following judgment.

IINTRODUCTION OF THE CASE

1. On January 30, 1997, the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the Inter-American Commission”) submitted to the Court an application against the Republic of Guatemala (hereinafter “the State” or “Guatemala”) deriving from a petition (No. 11, 383) received by the Secretariat of the Commission on September 15, 1994.

2. When presenting the case to the Court, the Commission invoked Articles 50 and 51 of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”) and Articles 32 et seq. of the Rules of Procedure. The Commission referred this case for the Court to determine whether Guatemala had violated the following Articles of the Convention: 1 (Obligation to Respect Rights), 4 (Right to Life), 5 (Right to Humane Treatment), 7 (Right to Personal Liberty), 8 (Right to a Fair Trial) and 25 (Right to Judicial Protection). According to the application, these violations were the result of

* Regarding the use of the term “street children” in this judgment, see para. 188.

** Judge Sergio García Ramírez was unable to take part in the preparation and adoption of this Judgment due to circumstances beyond his control.

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132. It is clear that, contravening the provisions of Article 7.2 of the Convention, the four youths were arrested although the causes or conditions established by the Guatemalan Constitution, in force since January 14, 1986, were not present. Article 6 of the Constitution establishes that a person may only be deprived of his liberty “under an order issued according to the law by a competent judicial authority” or because he is caught in fraganti while committing a crime or offence. Neither of these two grounds was present in this case.

133. Moreover, they were not “brought before the competent judicial authority within six hours”, as the said Article 6 of the Guatemalan Constitution orders. What is more, this article expressly establishes that those arrested “may not be subject to any other authority”. If we compare the facts of this case with this basic procedural regulation, it is clear that it was not complied with.

134. Consequently, we can conclude that neither the material nor the formal aspect of the legal rules for detention were observed in the detention of the four youths.

135. The European Court of Human Rights (hereinafter “European Court”) has remarked that the emphasis on the promptness of judicial control of arrests is of special importance for the prevention of arbitrary arrests. Prompt judicial intervention allows the detection and prevention of threats against life or serious ill-treatment that violate fundamental guarantees contained in the European Convention for the Protection of Human Rights and Fundamental Liberties (hereinafter “European Convention”)21 and the American Convention. The protection of both the physical liberty of the individual and his personal safety are in play, in a context where the absence of guarantees may result in the subversion of the rule of law and deprive those arrested of the minimum legal protection. In this respect, the European Court particularly stressed that the failure to acknowledge the arrest of an individual is a complete negation of these guarantees and a very serious violation of the article in question.

136. Consequently, this Court concludes that the State violated Article 7 of the American Convention on Human Rights, in relation to Article 1.1 of the Convention, to the detriment of Henry Giovanni Contreras, Federico Clemente Figueroa Túnchez, Julio Roberto Caal Sandoval and Jovito Josué Juárez Cifuentes.

IX VIOLATION OF ARTICLE 4

(Right to Life)

137. In the application, the Commission maintained that Guatemala had violated Article 4 of the Convention because two National Police Force agents murdered Henry Giovanni Contreras, Federico Clemente Figueroa Túnchez, Julio Roberto Caal Sandoval, Jovito Josué Juárez Cifuentes and Anstraum Aman Villagrán Morales. The Commission emphasized that “[t]he right to life cannot be annulled” and that “[t]he violation of that norm [...] has not been the object of any corrective”.

21. Cf. Eur. Court HR, Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and

Decisions 1996-VI, p. 2282, § 76 and Brogan and Others Judgment of 29 November 1988, Series A no.

145-B, p. 32, § 58 and Eur. Court HR, Kurt v. Turkey judgment of 25 May 1998, Reports of Judgments

and Decisions 1998-III, p. 1185, §§ 123-124.

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138. The State did not offer any defense on this point in its answer to the application (supra, paras. 67 and 68).

139. In its final arguments, the Commission underscored the ius cogens nature of the right to life and the fact that it is the essential basis for the exercise of the other rights. The Commission stated that compliance with Article 4 in relation to Article 1.1 of the Convention, not only presumes that no person shall be deprived of his life arbitrarily (negative obligation), but also requires the States to take all necessary measures to protect and preserve the right to life (positive obligation). It concluded, therefore, that the State had violated two aspects of the said right because, when the events took place, the “street children” were the object of different types of persecution, including threats, harassment, torture and murder. In consequence, there were a great many complaints to which the State should have responded with effective investigations, prosecutions and punishment; however, the State agents who were responsible were rarely investigated or convicted, and this gave rise to thede facto impunity that allowed, and even encouraged, the continuation of these violations against the “street children”, increasing their vulnerability.

140. The State kept silent on this point in the final arguments (supra, paras. 67 and 68).

141. Article 4.1 of the Convention stipulates:

Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.

142. In the instant case there is extensive concurring evidence that it was State agents and, more specifically, members of the National Police Force, who murdered Henry Giovanni Contreras, Federico Clemente Figueroa Túnchez, Julio Roberto Caal Sandoval, Jovito Josué Juárez Cifuentes and Anstraum Aman Villagrán Morales. Indeed:

— State agents arrested the four youths whose bodies appeared in the San Nicolás Woods. The events following their seizure, which culminated in the murder of the four youths, involved the use of means of mobilization and aggression that were very similar, if not identical, to those used to carry out the abduction;

— according to several witnesses, those who murdered Anstraum Aman Villagrán Morales – like those who abducted the four youths – acted in the city streets, without hiding their faces, moving discreetly in the sight of numerous persons, to the point that, after having killed the victim, they remained in the neighborhood drinking beer and then returned to the place where the body was lying and threatened potential witnesses, before finally leaving the site.

— Anstraum Aman Villagrán Morales was a friend of the four youths who were abducted and was often with them. On the night of the facts, he had been warned in threatening terms that he would be killed also, by the administrator of the kiosk, who was a friend of the murderers;

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— various witnesses who gave declarations to the domestic judges and investigators, some of whom also declared before this Court, stated that the abductors of the four youths and the murderers of Anstraum Aman Villagrán Morales were the same persons;

— parts of bullets fired by police firearms were found, both where the bodies of the first four youths were discovered and where Anstraum Aman Villagrán Morales was killed. In the case of the elements found near the body of Villagrán Morales, tests established that this bullet had been fired by a revolver issued to one of the police agents recognized by the witnesses as the perpetrator of the act;

— investigations conducted by the National Police Force, on the orders of the domestic judges, which were presented during the corresponding judicial proceedings, concluded that the murderers of the youths whose bodies were discovered in the San Nicolás Woods and of Anstraum Aman Villagrán Morales were the two agents identified by witnesses; and

— trustworthy information about the general environment, which has been mentioned above (supra, para. 59.c), regarding a generalized pattern of violence against “street children” by agents of State security units, including, in particular, acts of collective and individual homicide and abandonment of bodies in uninhabited areas.

143. As State agents perpetrated the five homicides, the Court must necessarily conclude that they may be attributed to the State22.

144. The right to life is a fundamental human right, and the exercise of this right is essential for the exercise of all other human rights. If it is not respected, all rights lack meaning. Owing to the fundamental nature of the right to life, restrictive approaches to it are inadmissible. In essence, the fundamental right to life includes, not only the right of every human being not to be deprived of his life arbitrarily, but also the right that he will not be prevented from having access to the conditions that guarantee a dignified existence. States have the obligation to guarantee the creation of the conditions required in order that violations of this basic right do not occur and, in particular, the duty to prevent its agents from violating it.

145. As the Human Rights Committee created by the United Nations International Covenant on Civil and Political Rights has stated,

[t]he protection against arbitrary deprivation of life, which is explicitly required by the third paragraph of Article 6.1 [of the International Covenant on Civil and Political Rights] is of paramount importance. The Committee considers that States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the State is a matter of utmost gravity. Therefore, [the State] must strictly control and limit the circumstances in which [a person] may be deprived of his life by such authorities23.

22. Cf. Paniagua Morales et al. case, supra note 13, para. 120.

23. United Nations Human Rights Committee, General Comments 6/1982, para. 3 and cf. General Comment 14/1984, para. 1.

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146. The Court wishes to indicate the particular gravity of the instant case since the victims were youths, three of them children, and because the conduct of the State not only violated the express provision of Article 4 of the American Convention, but also numerous international instruments, that devolve to the State the obligation to adopt special measures of protection and assistance for the children within its jurisdiction (infra, para. 191).

147. Based on the foregoing, the Court concludes that the State violated Article 4 of the American Convention on Human Rights, in relation to Article 1.1 of the Convention, to the detriment of Henry Giovanni Contreras, Federico Clemente Figueroa Túnchez, Julio Roberto Caal Sandoval, Jovito Josué Juárez Cifuentes and Anstraum Aman Villagrán Morales.

XVIOLATION OF ARTICLE 5

(Right to Humane Treatment)

148. In the application, the Commission alleged that the State had violated Article 5 of the American Convention against Henry Giovanni Contreras, Federico Clemente Figueroa Túnchez, Julio Roberto Caal Sandoval and Jovito Josué Juárez Cifuentes because they had been abducted by State agents who “were responsible for the physical integrity of the victims while they were [in] their custody”.

149. The Commission observed that, when the facts in this case occurred, the so-called “street children” were subject to different forms of “abuse and persecution” by “agents from certain [State] security forces”, and this inter-American body had already pointed out this circumstance in several of its reports.

150. When answering the application during the proceeding, the State did not offer any defense regarding the violation of the right to humane treatment embodied in the American Convention and, in particular, did not contest that the victims had been tortured (supra, paras. 67 and 68).

151. In its final arguments, the Commission declared that the four young victims of torture were retained incommunicado, a situation which, in itself, clearly results in “great anxiety and suffering”.

152. In continuation, it made special reference to the tender age of the victims of torture, two of them minors, Julio Roberto Caal Sandoval, 15 years of age, and Jovito Josué Juárez Cifuentes, 17 years of age, and the fact that they lived on the streets.

153. Furthermore, the Commission added that the circumstances surrounding the death of these youths had caused a great deal of suffering to the families of the victims. The way in which the bodies were abandoned and the lack of answers about what happened caused the families anxiety and fear. In the Commission’s opinion, the evidence makes it clear that the authorities did not try to communicate with the families or provide them with further information once the proceedings were underway.

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This version of the legislation is compiled and maintained in a database of legislation by the Parliamentary Counsel’s Office and publishedon the NSW legislation website.

Police Act 1990 No 47

Status information

Currency of version

Current version for 12 September 2013 to date (generated 16 October 2013 at 11:34).

Legislation on the NSW legislation website is usually updated within 3 working days.

Provisions in force

All the provisions displayed in this version of the legislation have commenced. For commencement and other details see the Historical notes.

New South Wales

Formerly known as:

Police Service Act 1990

Does not include amendments by:

Police Integrity Commission Amendment Act 2005 No 5, Sch 2.2 [1] (not commenced)

Government Sector Employment Act 2013 No 40 (not commenced)

Police Legislation Amendment (Special Constables) Act 2013 No 56 (not commenced)

See also:

Industrial Relations Amendment (Industrial Court) Bill 2013

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Current version for 12.9.2013 to date (generated on 16.10.2013 at 11:34)

Police Act 1990 No 47 [NSW]

Part 2 NSW Police Force

Part 2 NSW Police Force

4 Establishment of NSW Police Force

The NSW Police Force is established by this Act.

5 Composition of NSW Police Force

The NSW Police Force comprises the following members:

(a) the Commissioner,

(b) members of the NSW Police Force Senior Executive Service,

(c) all other police officers and administrative officers employed under this Act,

(d) temporary employees.

6 Mission and functions of NSW Police Force

(1) The mission of the NSW Police Force is to work with the community to reduceviolence, crime and fear.

(2) The NSW Police Force has the following functions:

(a) to provide police services for New South Wales,

(b) to exercise any other function conferred on it by or under this or any other Act,

(c) to do anything necessary for, or incidental to, the exercise of its functions.

(3) In this section:

police services includes:

(a) services by way of prevention and detection of crime, and

(b) the protection of persons from injury or death, and property from damage,whether arising from criminal acts or in any other way, and

(c) the provision of essential services in emergencies, and

(d) any other service prescribed by the regulations.

(4) A reference in this section to the functions of the NSW Police Force includes areference to the functions of members of the NSW Police Force.

(5) The provision of police services in emergencies and rescue operations is subject tothe State Emergency and Rescue Management Act 1989 and to the Essential ServicesAct 1988.

(6) Nothing in this section confers on the NSW Police Force a power to provide a policeservice in a way that is inconsistent with any provisions applicable to police officersunder the Law Enforcement (Powers and Responsibilities) Act 2002.

7 Statement of values of members of NSW Police Force

Each member of the NSW Police Force is to act in a manner which:

(a) places integrity above all,

(b) upholds the rule of law,

(c) preserves the rights and freedoms of individuals,

(d) seeks to improve the quality of life by community involvement in policing,

(e) strives for citizen and police personal satisfaction,

(f) capitalises on the wealth of human resources,

(g) makes efficient and economical use of public resources, and

(h) ensures that authority is exercised responsibly.

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Law on Police of the Br�ko District of Bosnia and Herzegovina

PART 3 – POLICE DUTIES UNDER JURISDICTION OF THE DISTRICT

Article 12

(Police duties)

Police duties under District’s jurisdiction are as follows: a) Protection of life and property; b) Protection of human rights and freedom of citizens guaranteed by the

Constitution of BiH and the Statute of Br~ko District of Bosnia and Herzegovina; c) Prevention, detection and investigation of criminal activities and offences that are

not under exclusive jurisdiction of other police organs of BiH; d) Duties and tasks pertaining to protection of public law and order; e) Providing security of persons and facilities in Br~ko District; f) Duties and tasks pertaining to public gatherings; g) Duties relating to traffic security on the roads of the District and other duties

pertaining to traffic security regulated by law; h) Duties pertaining to the control of purchase, possession and carrying of weapons

and ammunition and keeping required records; i) Other duties and tasks required from the Police by the District Public Prosecutor’s

Office and other Public Prosecutor’s Offices of BiH; j) Duties pertaining to production, trade and storage of explosive materials which

are under District’s jurisdiction; k) Duties pertaining to the work of agencies for the protection of people and

property; l) Implementation of regulations regarding weapons and ammunition; m) Inspection in the areas of activity under its jurisdiction; n) Administrative and other legal duties stipulated by the law or other regulations; o) Other duties and tasks placed under its jurisdiction in keeping with the law.

Article 13

(Carrying out Police Duties)

When carrying out their duties, Police shall:

a) Implement laws and regulations of the District within its authority; b) Control the execution of tasks pertaining to the security of citizens that have been

delegated to other organs of the District, businesses and other legal entities; c) Submit reports to the Assembly of the District and the Mayor on its activities as

laid down in the Statute and the laws of the District; d) Organise, maintain and develop integrated and functional system of

communications and exchange and protection of information with the institutions of BiH and the entity;

e) Ensure that current scientific methods in crime prevention are introduced and implemented and take appropriate measures for detection and prevention of criminal activities;

f) Carry out searches and appropriation of property, make arrests; g) Gather, analyse and use forensic and intelligence information by means of

informants and other operative sources of information; h) Protect evidentiary material and the crime scene in order to prevent damage,

destruction or loss of evidence; i) Carry out tasks pertaining to taking into custody, bringing in under custody,

escorting, and providing security at trial proceedings as ordered by a court; j) Procure weapons, equipment and materiel for the Police, paid from the budged of

the District;

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k) Carry out necessary scientific and research activities in order to secure police duties;

l) Submit operative information and statistics to competent organs of BiH government relating to the tasks under jurisdiction of the said organs that have been given to the Police;

m) Develop the following programmes: 1) Applications of legal and natural entities of the District to carry out police

tasks; 2) Supporting active participation of the people in crime prevention; 3) Documentation and investigation of crimes reported; 4) Cooperative and investigative activities with other law enforcing organs of

the District, the entity and BiH; 5) Support to the Public Prosecutor’s Office of the District;

n) Cooperate with the Commission for Public Security and Control of the Police Work which is appointed by the Assembly of the District, and provide all work reports requested by the Commission;

o) Carry out other tasks necessary to perform duties stipulated in Article 12 herein.

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ZAKON

O POLICIJSKIM SLUŽBENICIMA FEDERACIJE BOSNE I HERCEGOVINE

DIO PRVI UVODNE ODREDBE

POGLAVLJE I - OP�E ODREDBE

�lan 1.

Predmet Zakona

Ovim Zakonom reguliraju se policijske ovlasti i radnopravni status policijskih službenika

Federacije Bosne i Hercegovine (u daljnjem tekstu: FBiH).

�lan 2.

Policijski službenici

(1) Ovaj Zakon primjenjuje se na policijske službenike zaposlene u Federalnoj upravi policije (u

daljnjem tekstu: policijski organ).

(2) Odredbe ovog Zakona primjenjuju se i na policijske službenike koji rade u drugim

organizacionim jedinicama Federalnog ministarstva unutrašnjih poslova (u daljnjem tekstu:

Ministarstvo) ili drugog ministarstva FBiH ili državnog organa FBiH u mjeri u kojoj je to

predvi�eno zakonima kojima se ure�uje organizacija, upravljanje i nadležnost navedenih

organizacionih jedinica ili organa uprave.

(3) Od komisija ili odbora ili drugih organa uspostavljenih u skladu sa ovim Zakonom može se

tražiti da izvršavaju zadatke ili poslove za organizacione jedinice ili organe uprave iz stava 2.

ovog �lana u mjeri u kojoj je to predvi�eno zakonima na osnovu kojih su navedene organizicione

jedinice ili organi uprave uspostavljeni.

(4) Policijski službenici su oni pripadnici policijskog organa iz stava 1. ovog �lana i pripadnici

organizacionih jedinica i organa uprave iz stava 2. ovog �lana koji su ovlašteni da primjenjuju

policijske ovlasti propisane ovim Zakonom i postupaju kao ovlaštena službena lica prema

zakonima o krivi�nom postupku u Bosni i Hercegovini (u daljnjem tekstu: ZKP).

(5) Radna mjesta na kojima se zapošljavaju policijski službenici propisuju se prema zakonu

kojim se uspostavlja policijski organ ili organizaciona jedinica ili organ uprave iz stava 2. ovog

�lana, te propisima donesenim na osnovu zakona.

�lan 3.

Osnove za rad

(1) Rad policijskih službenika zasniva se na ustavima Bosne i Hercegovine i FBiH, zakonima i

drugim propisima koji se primjenjuju u FBiH.

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(2) U vršenju svojih dužnosti policijski službenik djeluje na nepristrasan i zakonit na�in vo�en

javnim interesom da služi i pomaže javnosti, promoviraju�i razvoj i o�uvanje demokratske

prakse u skladu sa zaštitom ljudskih prava i osnovnih sloboda.

�lan 4.

Nacionalna zastupljenost

Struktura policijskih službenika u policijskom organu odražava nacionalnu strukturu

stanovništva FBiH prema popisu stanovništva iz 1991. godine.

�lan 5.

Policijske oznake

(1) Policijskom službeniku službenu policijsku iskaznicu i policijsku zna�ku izdaje rukovodilac

policijskog organa (u daljnjem tekstu: rukovodilac).

(2) Policijski službenik nosi uniformu u skladu sa pravilnikom policijskog organa i drugim

propisima. Može se, izuzetno, propisati u navedenom pravilniku, zbog specifi�ne prirode

odre�enih zadataka i u skladu sa prihva�enim policijskim standardima, da se odre�eni policijski

zadaci izvršavaju u civilu ili u posebnoj službenoj uniformi i sa opremom.

(3) Za policijske službenike iz st. 1. i 2. �lana 2. ovog Zakona oblik službene policijske iskaznice

i zna�ke, koja mora biti jasno prepoznatljiva javnosti kao policijska oznaka, propisuje Vlada

FBiH (u daljnjem tekstu: Vlada Federacije).

(4) Vlada Federacije donosi propis o izgledu jedinstvene policijske uniforme svih policijskih

snaga FBiH.

�lan 6.

Pravo i dužnost nošenja oružja

Policijski službenik drži i nosi oružje i municiju u skladu sa pravilnikom koji donosi ministar

ministarstva u okviru kojeg je ustanovljen policijski organ ili organizaciona jedinica ili organ

uprave iz stava 2. �lan 2. ovog Zakona (u daljnjem tekstu: ministar, odnosno ministarstvo).

DIO DRUGI POLICIJSKE OVLASTI

POGLAVLJE II - OSNOVNI PRINCIPI

�lan 7.

Obaveza identifikacije

(1) Prije nego što policijski službenik po�ne primjenjivati policijske ovlasti obavezan je da se

identificira pokazivanjem službene policijske iskaznice ili policijske zna�ke.

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(2) U izuzetnim slu�ajevima, kada identificiranje iz stava 1. ovog �lana može ugroziti sigurnost

policijskog službenika ili drugog lica ili dovesti u pitanje postizanje zakonitog cilja koji

opravdava primjenu policijskih ovlasti, policijski službenik može se identificirati na drugi na�in

ili odgoditi identifikaciju.

(3) �im okolnosti iz stava 2. ovog �lana prestanu policijski službenik identificira se na na�in iz

stava 1. ovog �lana.

�lan 8.

Prikladnost i proporcionalnost primjene policijskih ovlasti

(1) Primjena policijskih ovlasti mora biti prikladna i proporcionalna potrebi radi koje se

poduzima.

(2) Policijske ovlasti primjenjuju se sredstvima kojima se može posti�i zakonit cilj sa najmanje

štetnih posljedica i u najkra�em vremenu.

�lan 9.

Odluke i naredbe za primjenu policijskih ovlasti

(1) Policijski službenik primjenjuje policijske ovlasti prema vlastitoj odluci u skladu sa

zakonom, kao i na osnovu zakonite naredbe nadre�enog službenika ili nadležnog organa.

(2) Policijski službenik ne�e izvršiti naredbu ukoliko bi time u�inio krivi�no djelo po krivi�nom

zakonodavstvu u Bosni i Hercegovini. Policijski službenik �e odmah podnijeti izvještaj o

neizvršavanju naredbe svom neposredno nadre�enom službeniku, odnosno višem nadre�enom

službeniku ukoliko je naredba izdata od neposredno nadre�enog policijskog službenika.

(3) Ukoliko naredba bude ponovljena, bez obzira na izvještaj o neizvršavanju, policijski

službenik svoj izvještaj dostavit �e Odjelu za unutrašnju kontrolu i inspekciju (u daljnjem tekstu:

Odjel za unutrašnju kontrolu).

POGLAVLJE III - POJEDINE POLICIJSKE OVLASTI

�lan 10.

Policijske ovlasti propisane ovim Zakonom

(1) Pored dužnosti i ovlasti propisanih ZKP-om, policijskim službenicima, odnosno policijskom

organu radi spre�avanja krivi�nih djela i održavanja javnog reda i mira, ovim Zakonom daju se

sljede�e policijske ovlasti:

1. provjera i utvr�ivanje identiteta osoba i stvari;

2. obavljanje razgovora;

3. privo�enje;

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Law on Police Officials of the Federation of Bosnia and Herzegovina

Article 3

[…]

(2) When performing their duties, police officers shall act impartially and legally motivated by the public interest to serve and assist, promoting development and preservation of democratic practices in keeping with the protection of human rights and basic freedoms.

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739

На осно ву чла на 80. став 1. тач ка 6. Уста ва Ре пу бли кеСрп ске, За ко на о од ли ко ва њи ма и при зна њи ма (“Слу жбе нигла сник Ре пу бли ке Срп ске”, бр. 4/93, 26/93 и 48/02) и Ста -ту та ор де на и ме да ља Ре пу бли ке Срп ске (“Слу жбе ни гла -сник Ре пу бли ке Срп ске”, број 12/95), по во дом 1. ма ја - Ме -ђу на род ног пра зни ка ра да, а на при је длог При вред не ко мо -ре Ре пу бли ке Срп ске и Са ве за син ди ка та Ре пу бли ке Срп -ске, д о н о с и м

У К АЗ

О ДО Д ЈЕ ЛИ ОД ЛИ КО ВА ЊА СЉЕ ДЕ ЋИМ

ПРИ ВРЕД НИ ЦИ МА И РАД НИ ЦИ МА

ОР ДЕН ЊЕ ГО ША I РЕ ДА:

1. Ћу бић (Ми ле) Љу бо мир, вла сник и ди рек тор при -вред ног дру штва “Ни ско град ња” Лак та ши,

2. Чи чић (Ду шан) Ми лен ко, вла сник и ди рек тор при -вред ног дру штва “Кал де ра ком па ни” Лак та ши,

3. Пан ду ре вић (Ми лош) Ми ла дин, вла сник и ди рек торпри вред ног дру штва ДИ “Др во лик” Ро га ти ца,

4. Ла ло вић (Мар ко) Са во, ди рек тор при вред ног дру -штва “Мар вел” Ис точ но Са ра је во,

5. Ву ко је (Ра до ван) Обрен, вла сник и ди рек тор при -вред ног дру штва “По дру ми ви на Ву ко је” Тре би ње,

6. Фе де ри ко Зе ке то, ди рек тор т.о. “Спор тек” Ко тор Ва -рош;

ОР ДЕН ЊЕ ГО ША II РЕ ДА:

1. Ни нић (Стан ко) Не бој ша, вла сник и ди рек тор при -вред ног дру штва “Ла на ко” Ба ња Лу ка,

2. Та со вац (Ла зар) Ми лу тин, из вр шни ди рек тор Руд ни -ка и тер мо е лек тра не Угље вик,

3. Ба ра нац (Кр сман) Ми лу тин, из вр шни ди рек тор Хи -дро е лек тра не на Дри ни Ви ше град;

ОР ДЕН ЊЕ ГО ША III РЕ ДА:

1. Мир ко вић (Са во) Ми лан, ру ко во дилац рад не је ди ни -це Руд ник и тер мо е лек тра не Угље вик;

МЕ ДА ЉА ЗА СЛУ ГА ЗА НА РОД:

1. Гња тић (Ми лан) Дра ган, на став ник - ОШ “Де сан каМак си мо вић” При је дор,

2. Ми лу ти но вић (Вин ко) Зо ран, ме ди цин ски тех ни чар -Оп шта бол ни ца Звор ник,

3. Бо жић (Стан ко) Слав ко, ин спек тор по ли ци је МУПРС - ЦЈБ До бој,

4. Ђу ђић (Ни ко) Го ран, елек тротех ни чар - “Атлан тик”ББ Ба ња Лу ка,

5. Во шкар (Гој ко) Слав ко, тех ни чар дрв не стру ке - “Фа -чо” Че ли нац,

6. То пић (Гор чин) Ми лен ко, пред сјед ник син ди ка та“Те ле ко му ни ка ци ја РС” Ба ња Лу ка,

7. Го стић (Ду шан) Бран ка, КВ тр го вац - Ба ња Лу ка,

8. Фур ту ла (Бог дан) Сло бо дан ка, еко ном ски тех ни чар -Олим пиј ски цен тар “Ја хо ри на” Па ле,

9. Кне же вић (Бран ко) Ра до ван, ВКВ во зач - “Ауто пре -воз” Гра ди шка,

10. Бје ла јац (Сте во) Зор ка, по што но ша - “По ште Срп -ске” РС Ба ња Лу ка,

11. Илић (Здрав ко) Здрав ка, КВ га лан те ри ста - твор ни -ца обу ће “Дер мал-Р” Ко тор Ва рош,

12. Ко сић (Ми лен ко) Ра до слав, рад ник - СХП “Це лекс”Ба ња Лу ка,

13. Мар ко вић (Цвјет ко) Ми лан, ма шин ски тех ни чар -“Би рач” Звор ник,

14. То мо вић (Бран ко) Мар ко, дипл. инж. шу мар ства -ШГ “Сје меч” Ро га ти ца,

15. Ла зић (Ми ла дин) Ми тар, рад ник - ГП “Пут” Ис точ -но Са ра је во,

16. То мић (Ма ној ло) Алек сан дар, по љо при вред ни тех -ни чар - “Са ни ча ни” При је дор,

17. Ро дић (Ја ков) Ста на, еко но ми ста - Са вез син ди ка таРе пу бли ке Срп ске,

18. Пеј чић (Стој ко) Мо мир, КВ ауто ме ха ни чар ЕФТ -Руд ник и тер мо е лек тра не Ста на ри До бој,

19. Аљић (Ха сан) Не зир, ВКВ рад ник - ГП “Рад” АДБи је љи на,

20. Др Па ша лић (Идриз) Азра, пред сјед ник Скуп шти неоп шти не При је дор.

Број: 01-136-450/10 Предсједник4. маја 2010. године Републике,Бања Лука Академик др Рајко Кузмановић, с.р.

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На осно ву чла на 80. став 1. тач ка 6. Уста ва Ре пу бли кеСрп ске, За ко на о од ли ко ва њи ма и при зна њи ма (“Слу жбе нигла сник Ре пу бли ке Срп ске”, бр. 4/93, 26/93 и 48/02) и Ста -ту та ор де на и ме да ља Ре пу бли ке Срп ске (“Слу жбе ни гла -сник Ре пу бли ке Срп ске”, број 12/95), по во дом 9. ма ја - Да -на по бје де над фа ши змом, а на при је длог СУБ НОР-а Ре пу -бли ке Срп ске и Удру же ња бив ших ло го ра ша II свјет скогра та Ре пу бли ке Срп ске, д о н о с и м

ЈУ Службени гласник Републике Српске,Бања Лука, Вељка Млађеновића бб

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Четвртак, 20. мај 2010. године

БАЊА ЛУКА

Број 43 Год. XIX

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СЛУЖБЕНИ ГЛАСНИКРЕПУБЛИКЕ СРПСКЕ Језик

српског народа

3845

У К АЗ

О ДО Д ЈЕ ЛИ ОД ЛИ КО ВА ЊА СЉЕ ДЕ ЋИМ

УЧЕ СНИ ЦИ МА НОР-а И БИВ ШИМ ЛО ГО РА ШИ МА

II СВЈЕТ СКОГ РА ТА

ОР ДЕН ЧА СТИ СА ЗЛАТ НИМ ЗРА ЦИ МА:

Га јић (Бо жо) Бла го ја, пред сјед ник Ре пу блич ког од бо раСУБ НОР-а Ре пу бли ке Срп ске и но си лац пар ти зан ске спо -ме ни це 1941. го ди не;

ОР ДЕН ЧА СТИ СА СРЕ БР НИМ ЗРА ЦИ МА:

1. Га ко вић (Ђу ро) Та на си је, пред сјед ник Оп штин скогод бо ра СУБ НОР-а Гра ди шка,

2. Џа јић (Дан ко) Ра де, пред сјед ник Град ског од бо раСУБ НОР-а Ба ња Лу ка,

3. Ро дић (Жар ко) Пе ро, пот пред сјед ник Удру же ња бив -ших ло го ра ша II свјет ског ра та Ре пу бли ке Срп ске,

4. Скро бић (Ра де) Ми лин ко, пред сјед ник По дру жни цеУдру же ња бив ших ло го ра ша II свјет ског ра та за оп шти неДо бој и Пе тро во.

Број: 01-136-474/10 Предсједник11. маја 2010. године Републике,Бања Лука Академик др Рајко Кузмановић, с.р.

741

На осно ву тач ке 2. Аманд ма на XL на Устав Ре пу бли кеСрп ске (“Слу жбе ни гла сник Ре пу бли ке Срп ске”, број28/94), д о н о с и м

У К АЗ

О ПРО ГЛА ШЕ ЊУ ЗА КО НА О ПОЛИЦИЈСКИМ

СЛУЖБЕНИЦИМА

Про гла ша вам За кон о полицијским службеницима, ко -ји је На род на скуп шти на Ре пу бли ке Срп ске усво ји ла наТридесет петој сједници, одржаној 25. и 26. јануара 2010.године - а Вијеће за заштиту виталног интереса Уставногсуда Републике Српске Одлуком УВ-2/10, на сједнициодржаној 27. априла 2010. године, потврдило да усвојенимЗаконом о полицијским службеницима није повријеђенвитални национални интерес конститутивног бошњачкогнарода.

Број: 01-020-487/10 Пред сјед ник17. маја 2010. го ди не Ре пу бли ке,Ба ња Лу ка Академик др Рај ко Ку зма но вић, с.р.

З А КО Н

О ПО ЛИ ЦИЈ СКИМ СЛУ ЖБЕ НИ ЦИ МА

I - ОСНОВ НЕ ОД РЕД БЕ

Члан 1.

Овим за ко ном ре гу ли шу се по ли циј ска овлашће ња,основ ни прин ци пи у при мје ни по ли циј ских овлашће ња,ду жност и пра ва, за по шља ва ње, рад ни усло ви, чи но ви,уна пре ђе ње, ди сци плин ска и ма те ри јал на од го вор ност по -ли циј ских слу жбе ни ка за по сле них у Ми ни стар ству уну -тра шњих по сло ва Ре пу бли ке Срп ске (у да љем тек сту: Ми -ни стар ство), као и по ли циј ско обра зо ва ње, по ста вља ње ирас по ре ђи ва ње ка де та.

Члан 2.

(1) По ли циј ски слу жбе ни ци су ли ца за по сле на у Ми ни -стар ству ко ји су овлашће ни да при мје њу ју по ли циј скаовлашће ња про пи са на овим за ко ном и по сту па ју каоовлашће на ли ца у скла ду са за ко ни ма о кри вич ном по ступ -ку Ре пу бли ке Срп ске и Бо сне и Хер це го ви не.

(2) Рад на мје ста по ли циј ских слу жбе ни ка про пи су ју сеу скла ду са За ко ном о уну тра шњим по сло ви ма и про пи си -ма до не се ним на осно ву за ко на.

Члан 3.

(1) У вр ше њу сво јих по сло ва и за да та ка по ли циј скислу жбе ни ци су ду жни при др жа ва ти се Уста ва Ре пу бли кеСрп ске и за ко на до не се них у скла ду са Уста вом.

(2) У вр ше њу сво јих по сло ва и за да та ка по ли циј скислу жбе ник ду жан је да по сту па на не при стра сан и за ко нитна чин, да шти ти јав ни ин те рес, људ ска пра ва и основ несло бо де.

Члан 4.

Са став по ли циј ских слу жбе ни ка у Ми ни стар ству тре баоквир но да одр жа ва на ци о нал ни са став у скла ду са Уста -вом Ре пу бли ке Срп ске.

Члан 5.

(1) По ли циј ски слу жбе ник има слу жбе ну по ли циј скуле ги ти ма ци ју и по ли циј ску знач ку ко ју из да је ди рек тор по -ли ци је (у да љем тек сту: ди рек тор).

(2) По ли циј ски слу жбе ник но си је дин стве ну уни фор муу Ре пу бли ци Срп ској (у да љем тек сту: Ре пу бли ка).

(3) Из глед, ди је ло ви, бо ја и озна ке по ли циј ске уни фор -ме про пи су ју се Пра вил ни ком о је дин стве ној по ли циј скојуни фор ми и опре ми у Ре пу бли ци, ко ји до но си ми ни стар напри је длог ди рек то ра.

(4) Из у зет но, због спе ци фич не при ро де од ре ђе них за -да та ка у скла ду са при хва ће ним по ли циј ским стан дар ди -ма, од ре ђе ни по ли циј ски за да ци мо гу се вр ши ти у ци вил -ној одје ћи или у по себ ној слу жбе ној одје ћи и са од го ва ра -ју ћом опре мом, а у скла ду са ак том ко ји до но си ди рек тор.

(5) Об лик слу жбе не по ли циј ске ле ги ти ма ци је и знач кеза по ли циј ске слу жбе ни ке из ста ва 1. овог чла на про пи су -је Вла да Ре пу бли ке Срп ске (у да љем тек сту: Вла да).

(6) По ли циј ска знач ка мо ра би ти ја сно пре по зна тљи вајав но сти као по ли циј ска озна ка.

Члан 6.

По ли циј ски слу жбе ник др жи и но си оруж је и му ни ци -ју у скла ду са пра вил ни ком ко ји до но си ми ни стар на прије -длог ди рек то ра.

II - ОСНОВ НИ ПРИН ЦИ ПИ У ПРИ МЈЕ НИ ПО ЛИ ЦИЈ СКИХ ОВЛА ШЋЕ ЊА

Члан 7.

(1) По ли циј ски слу жбе ник је оба ве зан да се, при је при -мје не по ли циј ских овлашће ња, иден ти фи ку је по ка зи ва њемслу жбе не по ли циј ске ле ги ти ма ци је или по ли циј ске знач ке.

(2) У из у зет ним слу ча је ви ма, ка да иден ти фи ка ци ја изста ва 1. овог чла на мо же угро зи ти без бјед ност по ли циј скогслу жбе ни ка или дру гог ли ца или до ве сти у пи та ње по сти -за ње за ко ни тог ци ља ко ји оправ да ва при мје ну по ли циј -ских овлашће ња, по ли циј ски слу жбе ник мо же се иден ти -фи ко ва ти на дру ги на чин или од го ди ти иден ти фи ка ци ју.

(3) По пре стан ку окол но сти из ста ва 2. овог чла на, по -ли циј ски слу жбе ник се иден ти фи ку је на на чин про пи санста вом 1. овог чла на, ако за то по сто је усло ви.

Члан 8.

(1) При мје на по ли циј ских овлашће ња мо ра би ти ускла -ђе на и про пор ци о нал на по тре би ра ди по сти за ња за ко ни тогци ља.

(2) По ли циј ска овлашће ња при мје њу ју се сред стви мако ји ма се мо же по сти ћи за ко нит циљ са нај ма ње штет нихпо сље ди ца и у нај кра ћем вре ме ну.

Члан 9.

(1) По ли циј ски слу жбе ник при мје њу је по ли циј скаовлашће ња пре ма вла сти тој од лу ци у скла ду са за ко ном,као и на осно ву за ко ни те на ред бе над ре ђе ног слу жбе ни каили над ле жног ор га на.

(2) По ли циј ски слу жбе ник ни је ду жан из вр ши ти на -ред бу уко ли ко би ти ме учи нио кри вич но дје ло по кри вич -ном за ко но дав ству Ре пу бли ке Срп ске и Бо сне и Хер це го -ви не.

2 SLU@BENI GLASNIK REPUBLIKE SRPSKE - Broj 43 20.05.2010.

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(3) По ли циј ски слу жбе ник од мах усме но упо зна је над -ре ђе ног слу жбе ни ка да је из да та на ред ба про тив на за кон -ским од ред ба ма те, уко ли ко по но ви на ред бу, под но си из -вје штај о не из вр ша ва њу на ред бе свом не по сред но над ре -ђе ном слу жбе ни ку, од но сно ви шем над ре ђе ном слу жбе ни -ку уко ли ко је на ред ба из да та од не по сред но над ре ђе ног по -ли циј ског слу жбе ни ка.

(4) Ако на ред ба бу де по но вље на, без об зи ра на окол но -сти из ста ва 2. овог чла на, по ли циј ски слу жбе ник до ста вљапи са ни из вје штај Је ди ни ци за про фе си о нал не стан дар деМи ни стар ства (у да љем тек сту: Је ди ни ца).

III - ПО ЛИ ЦИЈ СКА ОВЛА ШЋЕ ЊА

Члан 10.

По ред овлашће ња про пи са них за ко ни ма о кри вич номпо ступ ку Ре пу бли ке Срп ске и Бо сне и Хер це го ви не и дру -гим за ко ни ма, по ли циј ским слу жбе ни ци ма, ра ди спре ча ва -ња кри вич них дје ла, пре кр ша ја, одр жа ва ња јав ног ре да ими ра, кон тро ле без бјед но сти са о бра ћа ја, обез бје ђе ња јав -них ску по ва, обез бје ђе ња ли ца и имо ви не, овим за ко номда ју се и сље де ћа овлашће ња:

а) да ва ње упо зо ре ња и из да ва ње на ре ђе ња,

б) ле ги ти ми са ње, про вје ра и утвр ђи ва ње иден ти те тали ца и пред ме та,

в) по зи ва ње ли ца и оба вља ње раз го во ра,

г) при во ђе ње ли ца,

д) по тра га за ли ци ма и ства ри ма,

ђ) при вре ме но огра ни ча ва ње сло бо де кре та ња,

е) пре глед ли ца, пред ме та и пре во зних сред ста ва,

ж) при вре ме но од у зи ма ње пред ме та,

з) при вре ме но коришће ње ту ђих пре во зних и ко му ни -ка циј ских сред ста ва,

и) сни ма ње на јав ним мје сти ма,

ј) упо тре ба си ле,

к) об ра да лич них по да та ка и во ђе ње еви ден ци ја и

л) за при ма ње при ја ва.

1. Да ва ње упо зо ре ња и из да ва ње на ре ђе ња

Члан 11.

(1) По ли циј ски слу жбе ник је ду жан да упо зо ри ли ца наокол но сти ко је угро жа ва ју њи хо ву лич ну без бјед ност, жи -вот или имо ви ну, као и на по сто ја ње не ке оп ште опа сно -сти.

(2) По ли циј ски слу жбе ник је ду жан да упо зо ри ли це зако је оци је ни да сво јим по на ша њем или чи ње њем, од но снопро пу шта њем од ре ђе не рад ње мо же на ру ши ти јав ни ред имир или до ве сти у опа сност свој жи вот или жи вот и лич нубез бјед ност дру гог ли ца или имо ви не, као и ка да се оправ -да но оче ку је да би то ли це мо гло да учи ни или иза зо ве дру -го ли це да учи ни пре кр шај или кри вич но дје ло.

(3) Упо зо ре ње се да је усме но, свје тло сним или дру гимзна ком, зву ком пи штаљ ке или на дру ги по го дан на чин имо ра би ти ја сно и крат ко.

Члан 12.

(1) На ре ђе ње се из да је ра ди:

а) за шти те жи во та и лич не без бјед но сти ли ца и имо ви -не,

б) за шти те имо ви не од уни ште ња, оште ће ња и оту ђе -ња,

в) у слу ча је ви ма оп ште опа сно сти, про у зро ко ва не еле -мен тар ним не по го да ма,

г) одр жа ва ње јав ног ре да и ми ра, од но сно ус по ста вља -ње истог,

д) оне мо гу ћа ва ња при сту па или за др жа ва ња у про сто -ру или објек ту гдје то ни је до зво ље но и

ђ) вр ше ње кон тро ле и ре гу ли са ње са о бра ћа ја на пу те -ви ма у скла ду са за ко ном.

(2) На ре ђе ње из да је ди рек тор или по ли циј ски слу жбе -ник ко јег ди рек тор овла сти. По ли циј ски слу жбе ник мо жеса мо стал но из да ва ти на ре ђе ње са мо у хит ним слу ча је ви -ма, о че му је ду жан оба ви је сти ти не по сред ног ру ко во ди о -ца.

(3) Ди рек тор на ре ђе ње из да је усме но, пи са ним пу темили на дру ги од го ва ра ју ћи на чин, а ру ко во ди лац над ле жнеоснов не и уну тра шње ор га ни за ци о не је ди ни це и по ли циј -ски слу жбе ник не по сред но и усме но.

2. Ле ги ти ми са ње, про вје ра и утвр ђи ва ње иден ти те тали ца и пред ме та

Члан 13.

(1) Ле ги ти ми са ње је слу жбе на рад ња ко ју пред у зи ма јупо ли циј ски слу жбе ни ци ра ди утвр ђи ва ња иден ти те та ли -ца.

(2) Ле ги ти ми са ње се вр ши усме ним обра ћа њем ли цуко је тре ба ле ги ти ми са ти, за хтје вом ко јим ли це тре ба да по -ка же и пре да на увид по ли циј ском слу жбе ни ку лич ну кар -ту или пут ну ис пра ву.

(3) Из у зет но, утвр ђи ва ње иден ти те та мо же се вр ши тии по мо ћу дру гих ис пра ва са фо то гра фи јом, као и по мо ћуиз ја ве ли ца чи ји је иден ти тет утвр ђен.

Члан 14.

(1) По ли циј ски слу жбе ник овлашћен је да из вр ши про -вје ру иден ти те та ли ца ко је:

а) пред ста вља при јет њу дру гом ли цу или јав ном ре ду ими ру или без бјед но сти ко ја зах ти је ва по ли циј ску ак ци ју,

б) се пре гле да или про тив ко га су пред у зе те дру ге мје -ре или рад ње про пи са не за ко ном,

в) је за те че но у објек ту или дру гим про сто ри ја ма или уво зи лу ко је се пре гле да, уко ли ко је про вје ра иден ти те танео п ход на,

г) је за те че но на под руч ју или објек ту у ко јем је сло бо -да кре та ња при вре ме но огра ни че на, уко ли ко је про вје раиден ти те та нео п ход на,

д) на чи ном на ко ји се по на ша иза зи ва сум њу да је учи -ни лац кри вич ног дје ла, пре кр ша ја или дру гог за бра ње ногпо на ша ња, или да га на мје ра ва учи ни ти, или је сво јом фи -зич ком по ја вом слич но ли цу за ко јим се тра га и

ђ) је за те че но на мје сту гдје је из без бјед но сних раз ло -га нео п ход но утвр ди ти иден ти тет свих ли ца или гру пе ли -ца.

(2) По ли циј ски слу жбе ник оба вје шта ва ли це о раз ло зи -ма због ко јих се вр ши про вје ра иден ти те та.

(3) Ка да је нео п ход но, про вје ра иден ти те та укљу чу је ипро вје ру бо ра ви шта или пре би ва ли шта.

Члан 15.

(1) Овлашће ње утвр ђи ва ња иден ти те та ли ца при мје њу -је се пре ма ли цу ко је не по сје ду је до ку мент из чла на 13. ст.2. и 3. овог за ко на, или уко ли ко по сто ји сум ња у вје ро до -стој ност тог до ку мен та. Иден ти тет ли ца се утвр ђу је ме то -да ма и сред стви ма кри ми на ли стич ке тех ни ке.

(2) Ра ди утвр ђи ва ња иден ти те та ли ца, Ми ни стар ство јеовлашће но да јав но об ја ви фо то ро бот, цр теж, сни мак илиопис тог ли ца.

(3) Ако не по сто ји мо гућ ност да се на дру ги на чинутвр ди иден ти тет ли ца, Ми ни стар ство је овлашће но да об -ја ви фо то гра фи ју ли ца ко је ни је спо соб но да ти сво је лич непо дат ке или фо то гра фи ју ле ша не по зна тог ли ца.

Члан 16.

(1) Овлашће ње утвр ђи ва ња и про вје ре иден ти те тапред ме та при мје њу је се ка да је нео п ход но утвр ди ти ка рак -те ри сти ке и спе ци фич не осо би не пред ме та, као и од нос не -ког ли ца или до га ђа ја пре ма пред ме ту.

(2) Ми ни стар ство је овлашће но да јав но об ја ви сли ку,цр теж, сни мак или опис пред ме та уко ли ко је то од зна ча јаза успје шно спрово ђе ње по ступ ка утвр ђи ва ња иден ти те тапред ме та.

20.05.2010. SLU@BENI GLASNIK REPUBLIKE SRPSKE - Broj 43 3

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Law on Police Officials

III – POLICE AUTHORITY

Article 10

Along with the powers set by the law on criminal procedure of Republika Srpska and Bosnia and Herzegovina and by other laws, the following powers shall be given to police officers pertaining to preventing crimes and offences, securing public law and order, controlling traffic, securing public gatherings, providing security of persons and property:

a) Issuing warnings and orders; b) Asking for one’s papers and identification checks of persons and property; c) Conducting interviews; d) Taking into custody; e) Searching for persons and property; f) Temporary restrictions on freedom of movement; g) Searches of persons, property and vehicles; h) Temporary appropriation of property; i) Temporary use of personal vehicles and communications devices; j) Filming at public places; k) Use of force; l) Processing personal data and keeping records; m) Filing reports.

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© Éditeur officiel du Québec À jour au 1er octobre 2013 Ce document a valeur officielle.

chapitre P-13.1

LOI SUR LA POLICE

TITRE I FORMATION

CHAPITRE I ORGANISATION DE LA FORMATION PROFESSIONNELLE

SECTION I PROGRAMMES DE FORMATION

1. Les programmes de formation professionnelle qualifiante du personnel policier portent sur les trois

domaines de la pratique policière, à savoir:

1° la patrouille-gendarmerie;

2° l'enquête policière;

3° la gestion policière.

On entend par formation professionnelle qualifiante la formation qui, préparant spécifiquement à une activitéprofessionnelle, en conditionne l'exercice.

2000, c. 12, a. 1.

2. La formation professionnelle qualifiante du personnel policier comporte trois aspects: la formation initiale,

le perfectionnement professionnel et le perfectionnement de service.

La formation initiale est celle qui permet d'acquérir les compétences de base dans un domaine donné depratique policière. L'acquisition de la formation initiale en patrouille-gendarmerie est nécessaire pour accéderà la formation initiale dans les deux autres pratiques policières.

Le perfectionnement professionnel est la formation ayant pour objet, dans chaque domaine de pratiquepolicière, la mise à jour des compétences ou l'acquisition d'une spécialité.

Le perfectionnement de service est l'ensemble des activités destinées à faciliter l'intégration du policier dansle corps de police auquel il appartient et à lui assurer une pratique professionnelle aussi harmonieuse etfonctionnelle que possible à l'intérieur de ce corps.

2000, c. 12, a. 2.

SECTION II PLANS DE FORMATION DES CORPS DE POLICE

3. Le directeur de tout corps de police doit établir un plan de formation professionnelle.

2000, c. 12, a. 3.

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leur réception ou, si elle ne siège pas, dans les 30 jours de la reprise de ses travaux.

2000, c. 12, a. 46.

47. Chaque année, l'École soumet au ministre, suivant les modalités qu'il fixe, ses prévisions budgétaires

pour l'exercice financier suivant.

2000, c. 12, a. 47.

TITRE II ORGANISATION POLICIÈRE

CHAPITRE I CORPS DE POLICE

SECTION I MISSION

48. Les corps de police, ainsi que chacun de leurs membres, ont pour mission de maintenir la paix, l'ordre

et la sécurité publique, de prévenir et de réprimer le crime et, selon leur compétence respective énoncée auxarticles 50, 69 et 289.6, les infractions aux lois ou aux règlements pris par les autorités municipales, et d'enrechercher les auteurs.

Pour la réalisation de cette mission, ils assurent la sécurité des personnes et des biens, sauvegardent lesdroits et les libertés, respectent les victimes et sont attentifs à leurs besoins, coopèrent avec lacommunauté dans le respect du pluralisme culturel. Dans leur composition, les corps de police favorisentune représentativité adéquate du milieu qu'ils desservent.

2000, c. 12, a. 48; 2013, c. 6, a. 1.

49. Les policiers sont agents de la paix sur tout le territoire du Québec.

Pour la détermination de sa responsabilité civile à l'égard des tiers, un policier ne cesse pas d'agir à titre depréposé lorsqu'il agit en qualité d'agent de la paix.

Toutefois, le policier municipal qui, à la demande du ministre ou de la Sûreté du Québec, agit en qualitéd'agent de la paix est, pour la détermination de sa responsabilité civile à l'égard des tiers et pour l'applicationde la Loi sur les accidents du travail et les maladies professionnelles (chapitre A-3.001), réputé le préposédu ministre.

2000, c. 12, a. 49.

SECTION II SÛRETÉ DU QUÉBEC

§ 1. — Compétence

50. La Sûreté du Québec, corps de police national, agit sous l'autorité du ministre de la Sécurité publique

et a compétence pour prévenir et réprimer les infractions aux lois sur l'ensemble du territoire du Québec.

La Sûreté a également compétence pour prévenir et réprimer les infractions aux règlements municipauxapplicables sur le territoire des municipalités sur lequel elle assure des services policiers.

2000, c. 12, a. 50.

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3834

Police Services Act

R.S.O. 1990, CHAPTER P.15

Consolidation Period: From June 1, 2011 to the e-Laws currency date.

Last amendment: 2009, c. 33, Sched. 9, s. 10.

POLICE OFFICERS

Duties of police officer

42. (1) The duties of a police officer include,

(a) preserving the peace;

(b) preventing crimes and other offences and providing assistance and encouragement to other persons in their prevention;

(c) assisting victims of crime;

(d) apprehending criminals and other offenders and others who may lawfully be taken into custody;

(e) laying charges and participating in prosecutions;

(f) executing warrants that are to be executed by police officers and performing related duties;

(g) performing the lawful duties that the chief of police assigns;

(h) in the case of a municipal police force and in the case of an agreement under section 10 (agreement for provision of police services by O.P.P.), enforcing municipal by-laws;

(i) completing the prescribed training. R.S.O. 1990, c. P.15, s. 42 (1); 1997, c. 8, s. 28.

Power to act throughout Ontario

(2) A police officer has authority to act as such throughout Ontario.

Powers and duties of common law constable

(3) A police officer has the powers and duties ascribed to a constable at common law. R.S.O. 1990, c. P.15, s. 42 (2, 3).

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3814

ZAKON O POLICIJI1

1. TEMELJNE ODREDBE

[…]

�lanak 3.

Policijski službenik, u smislu ovoga Zakona, je policijski službenik prema Zakonu o policijskim poslovima i ovlastima i službenik Ministarstva koji obavlja poslove usko povezane s policijskim poslovima.

Vježbenik je osoba primljena u policiju bez radnog iskustva na policijskim poslovima, koja se osposobljava za samostalno obavljanje policijskih poslova.

Osoba koja se obrazuje za obavljanje policijskih poslova je polaznik redovitog srednjoškolskog obrazovanja kroz 3. i 4. razred Policijske škole ili srednjoškolskog obrazovanja odraslih za zanimanje policajac.

Pripadnik pri�uvnog sastava policije je osoba koja se, prema odredbama ovoga Zakona i provedbenih propisa, angažira za obavljanje odre�enih policijskih poslova.

1 Source of Excerpt: ��

3813

EU-projekt: Podrška Pravosudnoj akademiji: Razvoj sustava obuke za budu e suce i državne odvjetnike

EU-project: Support to the Judicial Academy: Developing a training system for future judges and prosecutors

Please note that the translation provided below is only provisional translation and therefore does NOT represent an official document of the Republic of Croatia. It confers no rights and imposes no obligations separate from those conferred or imposed by the legislation formally adopted and published in Croatian language.

Unofficial consolidated text includes:

NN 129/00

NN 41/08

Last check: 19.12.2008.

THE LAW ON POLICE

ZAKON O POLICIJI

I. INTRODUCTORY PROVISIONS

Article 1

This Law regulates the police tasks, the organisation of the police force, the police powers, and the

labour status of the police officers of the Ministry of the Interior.

Article 2

The police force is a public service of the Ministry of the Interior, which performs certain tasks

prescribed by law (hereinafter: police tasks).

The police force provides to the citizens the protection of their fundamental constitutional rights

and freedoms, and the protection of other values protected by the Constitution, in accordance with

this Law and other regulations.

The Ministry of the Interior (hereinafter: Ministry) also performs, besides the police tasks, other

tasks relating to the internal affairs determined by law.

3812

Article 3

The police tasks determined by this Law are as follows:

1. protection of life, rights, safety and inviolability of a person;

2. protection of property;

3. prevention and revealing of criminal acts, misdemeanours and offences;

4. searching for perpetrators of criminal acts, misdemeanours and offences and their taking to the

competent authorities;

5. control and regulation of the road traffic;

6. tasks relative to the movement and stay of aliens;

7. control and securing of the state border;

9. other tasks defined by law.

The police tasks are performed by the police officers of the Ministry at the headquarters as well as

in the regional organisational units.

Article 4

The police undertake urgent measures necessary for the elimination of direct danger to citizens and

property in cases when it is not possible for the competent authorities to undertake those measures

in due time.

In case of general alert caused by a natural disaster or an epidemic disease, the police shall provide

assistance to state administration bodies, local and regional self-government units as well as to

legal and natural persons.

Article 5

If justified reasons exist for expecting resistance to the enforcement of the legal instruments passed

by state administration bodies and legal persons vested with public powers, the police shall provide

assistance to those bodies in order to secure the implementation of the enforcement.

Heads of police administrations shall decide upon the manner of providing assistance and notify

about it the submitter of the request two days before the requested assistance at the latest.

Article 6

When a natural or a legal person files a report against a police officer or an organisational unit,

considering that his/her rights had been violated by an unlawful or improper activity performed by

a police officer, the submitter of the report shall be notified about the state of facts and the

measures undertaken within 30 days as of the day of the receipt of the report.

Article 7

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3810

Lov om politiets virksomhed1

VI MARGRETHE DEN ANDEN, af Guds Nåde Danmarks Dronning, gør vitterligt: Folketinget har vedtaget og Vi ved Vort samtykke stadfæstet følgende lov:

Kapitel 1 Politiets formål og virke

§ 1. Politiet skal virke for tryghed, sikkerhed, fred og orden i samfundet. Politiet skal fremme

dette formål gennem forebyggende, hjælpende og håndhævende virksomhed.

Kapitel 2 Politiets opgaver

§ 2. Politiet har til opgave 1) at forebygge strafbare forhold, forstyrrelse af den offentlige fred og orden samt fare for

enkeltpersoners og den offentlige sikkerhed,

[…]

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3809

Unofficial Translation

Law on the Functions of the Police

Law no. 444 of 6 June 2004

Article 1 The police shall operate to achieve safety, security, peace and order in the society. The police further this aim through preventive, assisting/helping and enforcement activity.

Article 2 It is the responsibility of the police to: 1) prevent criminal acts, obstruction of the public peace and order as well as danger for individuals and security of the public.

[…]

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3802

IL TESTO UNICO DELLE LEGGI DI PUBBLICA SICUREZZA

1.

R.D. 18 giugno 1931, n. 773. Testo unico delle leg-gi di pubblica sicurezza (Suppl. ord. alla Gaz-zetta Uf�ciale n. 146 del 26 giugno 1931) (1).

(1) Questo testo unico è stato emanato in vir-tù della delega di cui all’art. 6 del R.D.L. 14 aprile 1927, n. 593, convertito dalla L. 22 gennaio 1928, n. 290.

Al termine di podestà si è sostituito quello di sindaco, per effetto del R.D.L. 4 aprile 1944, n. 111 e del D.P.R. 5 aprile 1951, n. 203, contenenti norme per l’amministrazione, la composizione e l’elezio-ne degli organi delle amministrazioni comunali.

Titolo IDei provvedimenti di polizia

e della loro esecuzione

Capo IDelle attribuzioni

dell’autorità di pubblica sicurezza

e dei provvedimenti di urgenza o per grave necessità pubblica (1)

(1) Si vedano anche gli articoli da 1 a 7 del R.D. 6 maggio 1940, n. 635, recante il regolamento per l’esecuzione del Testo Unico delle leggi di pubblica sicurezza.

1. L’autorità di pubblica sicurezza veglia al mantenimento dell’ordine pubblico, alla sicurez-za dei cittadini, alla loro incolumità e alla tutela della proprietà; cura l’osservanza delle leggi e dei regolamenti generali e speciali dello Stato, delle province e dei comuni, nonché delle ordinanze delle autorità; presta soccorso nel caso di pubblici e privati infortuni.

Per mezzo dei suoi uf#ciali, ed a richiesta delle parti, provvede alla bonaria composizione dei dis-sidi privati.

L’autorità di pubblica sicurezza è provinciale e locale.

Le attribuzioni dell’autorità provinciale di si-curezza pubblica sono esercitate dal prefetto o dal questore; quelle dell’autorità locale dal capo del-l’uf#cio di pubblica sicurezza del luogo o, in man-canza, dal sindaco.

2. (1) Il prefetto, nel caso di urgenza o per grave necessità pubblica, ha facoltà di adottare i provvedimenti indispensabili per la tutela dell’or-dine pubblico e della sicurezza pubblica.

Contro i provvedimenti del prefetto chi vi ha interesse può presentare ricorso al ministro per l’interno.

(1) La Corte costituzionale, con sentenza n. 26 del 27 maggio 1961, ha dichiarato l’illegittimi-tà costituzionale del presente articolo nei limiti in cui esso attribuisce ai prefetti il potere di emettere ordinanze senza il rispetto dei principi dell’ordina-mento giuridico.

3. (1) Il sindaco è tenuto a rilasciare alle per-sone aventi nel comune la loro residenza o la loro dimora una carta d’identità conforme al modello stabilito dal Ministero dell’interno (2).

La carta d’identità ha durata di dieci anni (3) e deve essere munita della fotogra#a della persona a cui si riferisce. Per i minori di età inferiore a tre anni, la validità della carta d’identità è di tre anni; per i minori di età compresa fra tre e diciotto anni, la validità è di cinque anni (4). Le carte di identi-tà di cui all’articolo 7 vicies ter del decreto legge 31 gennaio 2005, n. 7, convertito con modi#cazio-ni dalla legge 31 marzo 2005, n. 43 e successive modi#che ed integrazioni, devono essere munite anche (5) delle impronte digitali della persona a cui si riferiscono (6). Sono esentati dall’obbligo di rilevamento delle impronte digitali i minori di età inferiore a dodici anni (7).

La carta d’identità può altresì contenere l’in-dicazione del consenso ovvero del diniego della persona cui si riferisce a donare i propri organi in caso di morte (8).

3801

Unofficial translation

Consolidated Laws of Public Safety, 18 June 1931, no. 773

Article 1(1).

Law enforcement authorities are tasked with the maintenance of public order, the safety and security of citizens and the protection of property; they monitor compliance with the law and the general and special regulations of the state, the provinces and the municipalities […].

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CODICE DI PROCEDURA PENALE

LIBRO I

SOGGETTI

TITOLO I

GIUDICE

CAPO I

GIURISDIZIONE

Art. 1. (Giurisdizione penale) - 1. La giurisdizione penale è esercitata dai giudici previsti

dalle leggi di ordinamento giudiziario secondo le norme di questo codice.

Art. 2. (Cognizione del giudice).- 1. Il giudice penale risolve ogni questione da cui

dipende la decisione, salvo che sia diversamente stabilito

2. La decisione del giudice penale che risolve incidentalmente una questione civile,

amministrativa o penale non ha efficacia vincolante in nessun altro processo.

Art. 3. (Questioni pregiudiziali).- 1. Quando la decisione dipende dalla risoluzione di una

controversia sullo stato di famiglia o di cittadinanza, il giudice, se la questione è seria e se

l’azione a norma delle leggi civili è già in corso, può sospendere il processo fino al

passaggio in giudicato della sentenza che definisce la questione.

2. La sospensione è disposta con ordinanza soggetta a ricorso per cassazione. La corte

decide in camera di consiglio.

3. La sospensione del processo non impedisce il compimento degli atti urgenti.

4. La sentenza irrevocabile del giudice civile che ha deciso una questione sullo stato di

famiglia o di cittadinanza ha efficacia di giudicato nel procedimento penale.

CAPO II COMPETENZA

SEZIONE I Disposizione generale

Art. 4. (Regole per la determinazione della competenza). 1. Per determinare la competenza

si ha riguardo alla pena stabilita dalla legge per ciascun reato consumato o tentato. Non si

tiene conto della continuazione, della recidiva e delle circostanze del reato, fatta eccezione

delle circostanze aggravanti per le quali la legge stabilisce una pena di specie diversa da

quella ordinaria del reato e di quelle ad effetto speciale.

3798

Art.331 (Denuncia da parte di pubblici ufficiali e incaricati di un pubblico servizio) 1.

Salvo quanto stabilito dall’art. 347, i pubblici ufficiali e gli incaricati di un pubblico

servizio che nell’esercizio o a causa delle loro funzioni o del loro servizio, hanno notizia

di un reato perseguibile di ufficio, devono farne denuncia per iscritto, anche quando non

sia individuata la persona alla quale il reato è attribuito.

2. La denuncia è presentata o trasmessa senza ritardo al pubblico ministero o a un ufficiale

di polizia giudiziaria.

3. Quando più persone sono obbligate alla denuncia per il medesimo fatto, esse possono

anche redigere e sottoscrivere un unico atto.

4. Se, nel corso di un procedimento civile o amministrativo, emerge un fatto nel quale si

può configurare un reato perseguibile di ufficio, l’autorità che procede redige e trasmette

senza ritardo la denuncia al pubblico ministero.

Art.332 (Contenuto della denuncia) 1. La denuncia contiene la esposizione degli elementi

essenziali del fatto e indica il giorno dell’acquisizione della notizia nonché le fonti di

prova già note. Contiene inoltre quando è possibile, le generalità, il domicilio e quanto

altro valga alla identificazione della persona alla quale il fatto è attribuito, della persona

offesa e di coloro che siano in grado di riferire su circostanze rilevanti per la ricostruzione

dei fatti.

Art.333 (Denuncia da parte di privati) 1. Ogni persona che ha notizia di un reato

perseguibile di ufficio può farne denuncia. La legge determina i casi in cui la denuncia è

obbligatoria.

2. La denuncia è presentata oralmente o per iscritto, personalmente o a mezzo di

procuratore speciale, al pubblico ministero o a un ufficiale di polizia giudiziaria; se è

presentata per iscritto, è sottoscritta dal denunciante o da un suo procuratore speciale.

3. Delle denunce anonime non può essere fatto alcun uso, salvo quanto disposto dall’art.

240.

Art.334 (Referto) 1. Chi ha l’obbligo del referto deve farlo pervenire entro quarantotto ore

o, se vi è pericolo nel ritardo immediatamente al pubblico ministero o a qualsiasi ufficiale

di polizia giudiziaria del luogo in cui ha prestato la propria opera o assistenza ovvero, in

loro mancanza all’ufficiale di polizia giudiziaria più vicino.

2. Il referto indica la persona alla quale è stata prestata assistenza e, se è possibile, le sue

generalità, il luogo dove si trova attualmente e quanto altro valga a identificarla nonché il

luogo, il tempo e le altre circostanze dell’intervento; dà inoltre le notizie che servono a

stabilire le circostanze del fatto, i mezzi con i quali è stato commesso e gli effetti che ha

causato o può causare.

3. Se più persone hanno prestato la loro assistenza nella medesima occasione, sono tutte

obbligate al referto, con facoltà di redigere e sottoscrivere un unico atto.

3797


Code of criminal procedure

Art.331 (Crime reports by public officials and persons in charge of a public service)

[…] public officials and those in charge of a public service who, in the exercise of their functions or by virtue thereof, receive notice of a crime [...], must report it in writing, even when the perpetrator has not been identified.

3796

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3795

Il testo del codice penale coordinato ed aggiornato con le ultime modifiche che sono state introdotte dalla Legge 21 febbraio 2006, n. 102 in materia di conseguenze derivanti da incidenti stradali, dalla Legge 24 febbraio 2006, n. 85 in materia di reati d'opinione, dalla Legge 31 luglio 2006, n. 241 in materia di indulto, dal Decreto Legge 8 febbraio 2007, n. 8 in materia di prevenzione e repressione di fenomeni di violenza legati a competizioni calcistiche, dal decreto legislativo 21 novembre 2007, n. 231 in materia di confisca dei beni, dalla Legge 18 marzo 2008, n. 48 in materia di criminalità informatica, dal Decreto Legge 23 maggio 2008, n. 92 in materia di sicurezza e dal D.L. 23 febbraio 2009, n. 11 (Decreto Sicurezza), dalla Legge 18 giugno 2009, n. 69 (Collegato competitività), dalla Legge 15 luglio 2009, n. 94 (c.d. Pacchetto sicurezza), dalla Legge 23 dicembre 2009, n. 191 (Finanziaria 2010) e dal D.L. 4 febbraio 2010, n. 4 (c.d. Piano straordinario contro le mafie, convertito in Legge di conversione 31 marzo 2010, n. 50).

CODICE PENALE

(Testo coordinato ed aggiornato del Regio Decreto 19 ottobre 1930, n. 1398)

Libro primo

DEI REATI IN GENERALE

Titolo I - Della legge penale (artt. 1-16) Titolo II - Delle pene (artt. 17-38) Titolo III - Del reato (artt. 39-84) Titolo IV - Del reo e della persona offesa dal reato (artt. 85-131) Titolo V - Della modificazione, applicazione ed esecuzione della pena (artt. 132-149) Titolo VI - Della estinzione del reato e della pena (artt. 150-184) Titolo VII - Delle sanzioni civili (artt. 185-198) Titolo VIII - Delle misure amministrative di sicurezza (artt. 199-240)

Libro secondo

DEI DELITTI IN PARTICOLARE

Titolo I - Dei delitti contro la personalità dello Stato (artt. 241-313) Titolo II - Dei delitti contro la Pubblica amministrazione (artt. 314-360) Titolo III - Dei delitti contro l'amministrazione della giustizia (artt. 361-401) Titolo IV - Dei delitti contro il sentimento religioso (artt. 402-413) Titolo V - Dei delitti contro l'ordine pubblico (artt. 414-421) Titolo VI - Dei delitti contro l'incolumità pubblica (artt. 422-452) Titolo VII - Dei delitti contro la fede pubblica (artt. 453-498) Titolo VIII - Dei delitti contro l'economia pubblica (artt. 499-518) Titolo IX - Dei delitti contro la moralità pubblica e il buon costume (artt. 519-544) Titolo IX-bis - Dei delitti contro il sentimento per gli animali (artt. 544bis-544sexies) Titolo X - Dei delitti contro l'integrità e la sanità della stirpe (artt. 545-555) Titolo XI - Dei delitti contro la famiglia (artt. 556-574bis) Titolo XII - Dei delitti contro la persona (artt. 575-623bis) Titolo XIII - Dei delitti contro il patrimonio (artt. 624-649)

Libro terzo

DELLE CONTRAVVENZIONI IN PARTICOLARE

3794

Il pubblico ufficiale o la persona incaricata di un pubblico servizio, che, per procurare a sé o ad altri un indebito profitto patrimoniale, si avvale illegittimamente di notizie d'ufficio, le quali debbano rimanere segrete, è punito con la reclusione da due a cinque anni. Se il fatto è commesso al fine di procurare a sé o ad altri un ingiusto profitto non patrimoniale o di cagionare ad altri un danno ingiusto, si applica la pena della reclusione fino a due anni.

_______________

Cfr. Cassazione Penale, sez. VI, sentenza 24 luglio 2007, n. 30148, Cassazione Penale, sez. VI, sentenza 30 luglio 2007, n. 30968, Cassazione Penale, sez. VI, sentenza 11 ottobre 2007, n. 37559 e Cassazione Penale, sez. VI, sentenza 12 ottobre 2009, n. 39706 .

[Art. 327. Eccitamento al dispregio e vilipendio delle istituzioni, delle leggi o degli atti dell'autorità. (1)

Il pubblico ufficiale che, nell'esercizio delle sue funzioni, eccita al dispregio delle istituzioni o all'inosservanza delle leggi, delle disposizioni dell'autorità o dei doveri inerenti a un pubblico ufficio o servizio, ovvero fa l'apologia di fatti contrari alle leggi, alle disposizioni dell'autorità o ai doveri predetti, è punito, quando il fatto non sia preveduto come reato da una particolare disposizione di legge, con la reclusione fino a un anno o con la multa fino a lire quattrocentomila. La disposizione precedente si applica anche al pubblico impiegato incaricato di un pubblico servizio, e al ministro di un culto.]

(1) Articolo abrogato dall'art. 18 della Legge 25 giugno 1999, n. 205.

Art. 328.

Rifiuto di atti d'ufficio. Omissione.

Il pubblico ufficiale o l'incaricato di un pubblico servizio, che indebitamente rifiuta un atto del suo ufficio che, per ragioni di giustizia o di sicurezza pubblica, o di ordine pubblico o di igiene e sanità, deve essere compiuto senza ritardo, è punito con la reclusione da sei mesi a due anni. Fuori dei casi previsti dal primo comma, il pubblico ufficiale o l'incaricato di un pubblico servizio, che entro trenta giorni dalla richiesta di chi vi abbia interesse non compie l'atto del suo ufficio e non risponde per esporre le ragioni del ritardo, è punito con la reclusione fino ad un anno o con la multa fino a euro 1.032. Tale richiesta deve essere redatta in forma scritta ed il termine di trenta giorni decorre dalla ricezione della richiesta stessa.

_______________

Cfr. Cassazione Penale, sez. VI, sentenza 15 settembre 2008, n. 35344, Cassazione Penale, sez. VI, sentenza 30 dicembre 2008, n. 48379 e Cassazione Penale, sez. VI, sentenza 3 dicembre 2009, n. 46512 .

Art. 329.

Rifiuto o ritardo di obbedienza commesso da un militare o da un agente della forza

pubblica.

3793


Criminal Code

(Royal Decree 19 October 1930, no. 1398)

Art. 328. Refusal to carry out duties. Negligence.

A public official or a person in charge of a public service who unduly refuses to carry out his duty, which for reasons of justice, public safety, public order or public health must be done without delay, shall be punished with a term of imprisonment between six months and two years.

[…] a public official or a person in charge of a public service who, within 30 days from the request by the interested party, fails to carry out his duty and to explain the reasons for such delay, shall be punished with a term of imprisonment of up to one year or with a fine up to 1,030 euros.

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3789


The Police Duties Execution Act

Act No. 136 of July 12, 1948

Amended: Act No. 94 of 2006

(Purpose) Article 1

(1) The object of this act is to provide for the necessary measures be taken by a police officer for faithfully carrying out his authorities and duties of protecting lives, physical bodies and properties of individuals, preventing crimes, maintaining public safety as those provided for in the Police Act (Act No. 162, 1954), as well as the enforcement of other acts and regulations.

(2) Any measures which are provided for in this act should be resorted to within the limits of minimum necessity for the purpose of the preceding paragraph, and any abuse thereof is strictly prohibited.

* * *

(Protection)Article 3

(1) In case a police officer finds a person, who is deemed to fall clearly under any of the following categories, judging reasonably from his or her unusual behaviours and/or other surrounding circumstances, and moreover has reasonable ground to believe that he or she needs emergency aid and protection, the police officer must give him or her immediate protection at any such proper places as a police-station, a hospital, relief facilities, etc.

(i) A person who is likely to inflict an injury on his or her own or others' lives, physical bodies or properties on account of his or her mental derangement or drunkenness.

(ii) A stray child, a sick person and an injured person or the like who are not attended by any proper guardian and are considered as requiring emergency aid and protection (except the cases where such persons refuse to be given any immediate protection).

(2) In case a police officer has taken the measures provided for in the preceding paragraph, the police officer shall inform the family, acquaintances or other persons concerned as soon as possible to that effect, and make the necessary arrangements for handing the subject person over to them. In the event there is no responsible relative or acquaintance to be found, the police officer should immediately turn the case over to the proper public health or public welfare service or any of the other official services charged with the disposition of such persons by the act and regulations.

(3) The police protection under the provision of paragraph 1 shall last no longer than 24 hours except in cases where a warrant of a judge of the summary court (hereinafter refers to the summary court having jurisdiction over the precincts of the police station to which the police officer who has given the said protection is assigned) authorizing further protection is obtained.

(4) The warrant referred to in the proviso of the preceding paragraph shall be issued by the judge at the request of a police officer only in the case when the judge deems the circumstances to be inevitable to issue such a warrant, and the extended period shall not exceed five days in total. In this warrant, the inevitable circumstances which are deemed to exist must be stated expressly.

(5) The police officer shall notify the summary court every week of the names and addresses of the persons who are placed under police protection in accordance with the provision of paragraph 1, reason or reasons for protection, and dates of protection and delivery, as well as the names of the persons or services to whom or which such persons are handed over.

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3787

1

Republika e Kosovës Republika Kosova-Republic of Kosovo

Kuvendi - Skupština - Assembly

Zakon br.03/L – 035

O POLICIJI

Skupština Republike Kosova,

Na osnovu lana 65 (1) Ustava Republike Kosova, a u cilju uspostavljanja zakonskih pravila o

policiji Republike Kosova,

Usvaja

ZAKON O POLICIJI

POGLAVLJE I

OPŠTE ODREDBE

lan 1.

Svrha

Svrha ovog Zakona jeste osnivanje policije Republike Kosova, opisivanje njenih dužnosti i

ovlaš!enja kao i ovlaš!enja i dužnosti policijskih službenika, utvr"ivanje organizativne strukture i

regulisanje drugih pitanja u vezi sa aktivnostima i radnjama policije Republike Kosova.

lan 2.

Vode!a na"ela

2.1. Radnje policije Republike Kosova predvodi!e slede!a na ela: Ravnopravno i pravedno

postupanje prema svim licima:

a) poštovanje ljudskih prava i osnovnih sloboda;

b) nepristrasnost i neutralnost u vezi sa politi kim ube"enjima i gledištima lica;

c) integritet, poštenost i odgovornost u javnoj službi;

d) transparentnost-pružanje informacija gra"anima i otvorenost prema javnosti;

e) legitimnost, podesnost i srazmernost;

3786

5

POGLAVLJE II

DUŽNOSTI I OVLAŠ#ENJA POLICIJE

lan 10.

Opšte dužnosti i ovlaš!enja policije

10.1. Opšte dužnosti policije jesu:

a) da štiti život, bezbednost i imovinu svih lica;

b) da štiti osnovna prava i slobode svih lica;

c) da spre ava rizik po gra"ane i da održava javni red i bezbednost;

d) da spre ava i otkriva krivi na dela;

e) da istražuje krivi na dela;

f) da pruža nadzor i kontrolu u cilju uspostavljanja bezbednosti u saobra!aju;

g) da vrši nadzor i kontrolu granica;

h) da pruža pomo! tokom prirodnih nepogoda i u drugim vanrednim situacijama; i

i) da obavlja druge dužnosti predvi"ene zakonom na snazi.

10.2. Svaki policijski službenik, nosi atribute Sudske policije, u skladu sa Zakonom o krivi nom

postupku i drugim zakonima.

lan 11.

Policijska ovlaš!enja

11.1. Tokom obavljanja policijskih dužnosti, policijski službenik ovlaš!en je da vrši opravdanu

kontrolu ljudi i imovine u okviru svoje nadležnosti ili ovlaš!enja, da daje i sprovodi nare"enja i

zakonska uputstva koja važe za lanove društva uopšteno, u cilju postizanja zakonskih policijskih

ciljeva.

11.2. Ovlaš!enja predvi"ena ovim Zakonom utvr"uju opšta ovlaš!enja i ograni enja policijskog

službenika tokom obavljanja njegovih dužnosti u vezi sa spre avanjem opasnosti i održavanjem

javnog reda i bezbednosti. Ova ovlaš!enja i ograni enja tokom istrage krivi nih dela, uopšteno se

utvr"uju drugim zakonima, koji uklju uju, ali nisu ograni eni samo na Zakon o krivi nom

postupku Republike Kosova.

1.1.3. Tokom obavljanja svojih dužnosti, policijski službenici Grani ne policije ovlaš!eni su da

patroliraju granicom, kontrolišu prekograni ni saobra!aj, pregledaju isprave za prelazak granice,

u"u na privatno vlasništvo u pograni nom pojasu, sa izuzetkom da ne mogu ulaziti u privatne

stanove, me"utim mogu u!i na železni ke stanice, aerodrome, u vozove i avione. Policija može

zahtevati da se upozna sa vlasnikom imovine koja se prostire duž granice, da dobije put ili stazu

duž grani ne linije i kapije na ogradi koje !e omogu!avati pristup policijskih službenika tokom

patroliranja.

11.4. Policija je ovlaš!ena i dužna da preduzme neophodne mere za zaštitu lica koja mogu biti

izložena bilo kakvoj pretnji ili diskriminatornoj radnji, neprijateljstvu ili nasilju u vezi sa

njihovim narodnim, etni kim, kulturnim, jezi kim ili verskim identitetom.

3785

6

11.5. Policija pruža bezbednost i zaštitu na mestima verskog i kulturnog nasle"a širom Republike

Kosova.

lan 12.

Podesnost i srazmernost

12.1. Policijski službenik !e primeniti na ela podesnosti i srazmernosti kao jedno od ograni enja

prilikom izvršavanja policijskih ovlaš!enja.

12.2.U slu ajevima u kojima preduzima preventivne mere kako bi ograni io slobodu lica,

policijski službenik treba uzeti u obzir opreznost, stepen opasnosti i ozbiljnost izvršavanja

krivi nog dela u datoj situaciji, kako bi utvrdio stepen ograni avanja slobode lica.

12.3, Policijska ovlaš!enja izvršavaju se samo kada je isto neophodno i samo u nivou potrebnom

da se postignu zakonski ciljevi Policije sa najmanje štetnim posledicama i u najkra!em mogu!em

roku.

lan 13.

Dužnost policijskog službenika da izvršava zakonite naredbe i da odbije nezakonite naredbe

13.1. Policijski službenik dužan je da izvršava policijska ovlaš!enja u skladu sa naredbama datim

na ispravan na in od strane nadzornika.

13.2. Policijski službenik dužan je da odbije data nare"enja koja su vidljivo nezakonita i da ih

prijavi, bez straha od kažnjavanja.

13.3. Policijski službenik ne!e izazivati, podsticati, podržavati ili tolerisati nijedan akt torture,

degradiranja ili svirepog kažnjavanja, u bilo kakvim okolnostima, a nijedna vanredna okolnost

niti izdata naredba ne!e opravdati ovakvu radnju.

lan 14.

Predstavljanje policijskog službenika

14.1. Pre nego što bude izvršavao policijska ovlaš!enja, policijski službenik !e obavestiti lica u

vezi sa njegovim ili njenim statusom policijskog službenika, a, ukoliko nije u uniformi,

predstavi!e se pokazivanjem identifikacione kartice ili policijskog bedža.

14.2. Policijski službenik !e se predstaviti kasnije u onim slu ajevima u kojima se dovede u

opasnost život, imovina ili postizanje legitimnih ciljeva Policije.

lan 15.

Prijem informacija o krivi"nim delima i drugim prekršajima zakona

15.1.Policijski službenik dužan je da primi informacije ponu"ene od strane lica u vezi sa

po injavanjem bilo kog krivi nog dela ili drugim prekršajima zakona relevantnih za rad i

ovlaš!enja Policije.

3784

1

Republika e Kosovës Republika Kosovo - Republic of Kosovo

Kuvendi - Skupština - Assembly _______________________________________________________________________

Law No. 04/L-076

ON POLICE

Assembly of Republic of Kosovo,

Based on Article 65 (1) of the Constitution of the Republic of Kosovo;

Approves:

LAW ON POLICE

CHAPTER I

GENERAL PROVISIONS

Article 1

Objective

This law regulates the authorizations and duties of Police of the Republic of Kosovo, its

organization and other issues related to activities and actions of the Police of the Republic

of Kosovo.

Article 2

Guiding Principles

1. The actions of the Kosovo Republic Police shall be guided by the following principles:

1.1. fair and equal treatment of all persons;

1.2. respect for human rights and fundamental freedoms;

3783

6

2. The Police may deploy Police Officers for an interim service period to another

international police organization for the purpose of performing police duties abroad, in

accordance with the applicable law or by international agreements.

CHAPTER II

POLICE DUTIES AND POWERS

Article 10

General Duties and Powers of the Police

1. The Police shall have the following general duties:

1.1. to protect the life, property and offer safety for all people;

1.2. to protect the human rights and fundamental freedoms of all citizens;

1.3. to prevent the risk to citizens and maintain the public order and safety;

1.4. detect and prevent criminal acts and offenders;

1.5. to investigate criminal acts and offenders;

1.6. to supervise and control for traffic safety;

1.7. to manage and control the state border;

1.8. to provide assistance during natural disasters and other emergencies; and

1.9. to perform other duties as assigned by applicable law.

Article 11

Police Powers

1. During the performance of police duties, a Police Officer has power to impose

reasonable control on people and property within his/her jurisdiction and power to issue

and enforce lawful orders and instructions for members of society in general to achieve

legitimate police objectives.

2. The powers mentioned in this law describe the general powers and limitations of a

police officer when performing duties related to prevention of the risk and maintenance

of public order and safety. The powers and limitations of a Police Officer during

3782

7

performance of duties related to criminal investigation generally are described by other

laws including, but not limited to, the Criminal Procedure Code of Republic of Kosova.

3. In fulfilling their police duties, Police Officers have power to patrol the border, control

transborder traffic, examine border crossing documents, enter onto private property along

the border, except that they may not enter into private residences but may enter into

railway stations, airports, trains and airplanes. The Police has the right to meet a property

owner or require a property owner along the border to have a boundary path and to have

gates in fences to provide access to the property for Police Officers on patrol.

4. The Police shall provide security and protection to religious and cultural heritage sites

in Republic of Kosova.

5. Police officer exercises police powers off duty in accordance with the law.

Article 12

Suitability and Proportionality

1. A Police Officer shall apply the principles of suitability and proportionality as a

limitation on the exercise of police powers.

2. When preventive measures are taken to restrict a person’s freedom, a Police Officer

should use discretion, taking into account the degree of danger and the seriousness of any

criminal conduct in the situation, to determine the degree to which a person’s freedom

will be restricted, in accordance with the law.

3. Police Powers shall be exercised only when it is necessary and only to the extent

required to achieve legitimate police objectives with the least harmful consequences in

the shortest possible time.

Article 13

Police Officer’s Duty to Obey Lawful Orders and Refuse Unlawful Orders

1. A Police Officer has as a duty to obey lawful orders issued by his/her superior.

2. A Police Officer shall have a duty to refuse orders when they are unlawful and to

report such orders immediately, in accordance with sub-legal acts.

3. A Police Officer shall not inflict, instigate, support or tolerate any torture act or

inhuman or degrading treatment under any circumstances, and no issued order can justify

any such action.

3781

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3780

Version française (publiée par la Librairie Antoine, éd. de 2009)

Code pénal libanais

Extraits

3779

Version française (publiée par la Librairie Antoine, éd. de 2009)

55

[Articles 398 à 400]

Titre IV

Des infractions contre l’administration de la justice

Chapitre I

Des infractions contre l’activité judiciaire

I De la non révélation des crimes et délits

Article 398 – Tout Libanais qui aura eu connaissance d'un crime contre la sûreté de l'État et ne

l'aura pas immédiatement dénoncé à l'autorité publique, sera passible d'un an à trois ans d'emprisonnement et de la privation des droits civiques.

Article 399 – Le montant de l'amende a été modifié par l'article 40 de la Loi n° 239 du 27/5/1993. Tout fonctionnaire chargé de la recherche ou de la poursuite des infractions à la loi pénale qui

aura omis ou différé de dénoncer une infraction parvenue à sa connaissance, sera puni d'un emprisonnement d'un mois à trois ans et d'une amende de vingt mille à deux cent mille livres.

Tout fonctionnaire qui aura omis ou différé de dénoncer à l'autorité compétente un crime ou un

délit dont il a eu connaissance dans l'exercice ou à l'occasion de l'exercice de ses fonctions, sera condamné à l'amende ci-dessus déterminée.

Le tout à moins que la poursuite de l'infraction non dénoncée ne soit subordonnée à la plainte

d'un particulier. Article 400 – Quiconque, dans l'exercice d'une profession sanitaire, aura assisté une personne

paraissant avoir été la victime d'un crime, ou d'un délit susceptible d'être poursuivi d'office, et ne l'aura pas dénoncé à l'autorité, encourra la peine d'amende prévue à l'article précédent.

3778

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3777

CRIMINAL CODE [CAP. 9. 1

CHAPTER 9

CRIMINAL CODE

To amend and consolidate the Penal Laws and the Laws of Criminal Procedure.

10th June, 1854

ORDER-IN-COUNCIL of the 30th of January, 1854, as amended by Ordinances: IV of1856, VIII and IX of 1857, X of 1858, IX of 1859, V of 1868, VI of 1871, IV of 1874, III of1877, I of 1879, III and VII of 1880, IV of 1882, III of 1885, II of 1886, IV and XVI of 1888,XIV of 1889, II of 1892, VIII of 1893, IV of 1894, III and X of 1896, IV of 1897; the Malta (Useof English Language in legal proceedings) Order-in-Council, 1899; Ordinances: III, VI, XIand XIII of 1899, XI, XII and XVI of 1900, VI and XVI of 1901, I of 1903, I and XII of 1904, XIof 1905, VIII of 1909, IV of 1910, IX of 1911, XII of 1913, II, VI and XII of 1914, IV of 1916,XIII and XIV of 1918; the Malta Constitution Letters Patent, 1921; Ordinance XVI of 1921;Acts: XII of 1922, I of 1924, XXVI of 1927, XVI of 1929; Ordinances: VI and VIII of 1930, XIIIand XXVI of 1931, XVI of 1932, VI of 1933; Acts: XXVIII, XXXV and XLI of 1933;Ordinances: XXII, XXX and XXXVII of 1934, IX and XIII of 1935, XIV and XX of 1936, III andXV of 1937, I, XXIV, XXVII and XXXV of 1938, I and VI of 1939, XXIX of 1940; GovernmentNotices Nos. 124 and 248 of 1941. Incorporating also Article 3 of Ordinance II of 1867,Ordinance IV of 1872, Article 30 of Ordinance VI of 1880 and Ordinance XXXVII of 1934.

This Code was subsequently amended by Ordinances: VIII, XII and XXI of 1944, XXIV of1946, VI of 1947; Acts: X of 1949, IX of 1950, IV of 1951, V of 1956, XII of 1957; EmergencyOrdinance XX of 1959; Ordinances: XV of 1959, X of 1960, XXV of 1962; Legal Notice 4 of1963; Acts: XVI and XXIII of 1963, XIII of 1964, XIX and XXXII of 1965; Legal Notice 46 of1965; Acts: XXXI and XLIII of 1966, II, XXV and XXXI of 1967, XXVII of 1970, III and XXI of1971, XXXIII of 1972, II, III, XI, XV, XXXVIII and XLVI of 1973, IV, VIII, XXXV and LVIII of1974, XXIV, XXVII and XXXVII of 1975, III, XIV, XVIII, XIX and XXII of 1976, XI of 1977,XIII and XVIII of 1980, XLIX and LIII of 1981, IX of 1982, XIII and XIV of 1983, I of 1984,XXXII of 1986, XIII of 1987, XXII of 1988, XXIX of 1989, VIII and XXIX of 1990, XII of 1991,XIX of 1992, XXI of 1993, IV and XXIV of 1994, XXIV of 1995, XVI and XVII of 1996, XXXIIof 1997, II and X of 1998, VII of 1999, X of 2000, III and VI of 2001, III, XIII, XXIV and XXXIof 2002, IX of 2003, III of 2004, I, V, VI, XIII, XX and XXII of 2005, XVI of 2006; Legal Notice274 of 2007; Acts VI, XXIV and XXXI of 2007; Legal Notice 407 of 2007; Acts VIII of 2008, XIof 2009, VII and XXII of 2010, XXI of 2011 and VIII of 2012; Legal Notice 426 of 2012; Act IVof 2013; and Legal Notice 246 of 2013.

3776

156 CAP. 9.] CRIMINAL CODE

BOOK SECOND

LAWS OF CRIMINAL PROCEDURE

PART I

OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED

Title I

OF THE POWERS AND DUTIES OF THE EXECUTIVE POLICE IN RESPECT OF CRIMINAL PROSECUTIONS

GENERAL

Duties of the Police. Amended by:IV. 1856.23;VIII. 1990.3.Substituted by:III. 2002.74.

346. (1) It is the duty of the Police to preserve public orderand peace, to prevent and to detect and investigate offences, tocollect evidence, whether against or in favour of the personsuspected of having committed that offence, and to bring theoffenders, whether principals or accomplices, before the judicialauthorities.

(2) Notwithstanding the generality of subarticle (1), whereauthorised by law and in the manner so provided, the Police maydelay i t s immediate in tervent ion for the prevent ion of thecommission of an offence.

Complaint by the injured party. Amended by: XIV. 1889.45;XXX. 1934.2;XXI. 1971.26; XXII. 1976.4;XLIX. 1981.4.Substituted by:III. 2002.74.

347. The Police shall not institute criminal proceedings, excepton the complaint of the injured party, in cases where the law doesnot allow criminal proceedings to be instituted without suchcomplaint.

Tendering of assistance when required by head of household. Amended by: XXII. 1976.4.Substituted by:III. 2002.74.

348. Where the head of any household requires an officer of thePolice to proceed to such house in order to ascertain any offencewhich has been committed or to secure the evidence relatingthereto, the officer shall proceed thither with all convenient speedtaking with him witnesses where practicable.

Powers according to law.Substituted by:III. 2002.74.

349. (1) A police officer shall only have such powers as arevested in him by law and to the extent authorised by law and in thisprovision the word law has the same meaning assigned to it inarticle 124 of the Constitution.

Omission of precaution, formality or requirement not a bar to admissibility of evidence.

(2) The omission of any precaution, formality or requirementprescribed under this Title shall be no bar to proving, at the trial, inany manner allowed by law, the facts to which such precaution,formality or requirement relates.

3775

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3774

POLICE [CAP. 164. 1

CHAPTER 164

POLICE ACT

To regulate the organization, discipline and duties of the Malta Police Force.

10th February, 1961

ORDINANCE II of 1961, as amended by: Legal Notices: 46 of 1965, 148 of 1975; Acts: VIIIof 1982, XIII of 1983, VIII and X of 1990; Legal Notice 43 of 1996; Acts XIII and XXIII of2002; Legal Notice 211 of 2004; Act XVI of 2006; Legal Notice 410 of 2007; Act VII of 2010;Legal Notice 72 of 2012; and Act VIII of 2013.

ARRANGEMENT OF ACT

Articles

Part I

General 1 - 2

Part II

The Malta Police Force

Title I Constitution 3 - 5

Title II Appointments and Conditions 6 - 23

Title III Professional Associations 24 - 30

Title IV Discipline 31 - 47

Title V The Police Board 48 - 60

Part III

Investigations and Prosecutions

Title I Duties of Custody Officers 61 - 65

Title II Codes of Practice and Interviews 66 - 67

Title III Fingerprints, Samples and Identifications 68 - 74

Title IV Protection of Witnesses and Victims 75 - 90A

Part IV

Powers over Private Property 91 - 95

Part V

The Use of Force 96 - 102

Part VI

Police Academy 103 - 106

Part VII

Regulations, Orders and Forms 107 - 109

Part VIII

Miscellaneous 110 - 120

Part IX

Pensions 121 - 127

Schedules

First Schedule Oath of Office

Second Schedule Statute of Malta Police Association

Third Schedule Offences against Discipline

Fourth Schedule Code of Practice for Police Interrogations

3773

4 CAP. 164.] POLICE

PART II

THE MALTA POLICE FORCE

TITLE I

CONSTITUTION

The Malta Police Force.Substituted by:XIII. 2002.4.

3. There shall continue to be a police force known as PoliceForce.

Objectives.Substituted by:XIII. 2002.4.

4. The main objectives of the Force are -

(a) to preserve public order and peace, to prevent thecommission of offences, to promote and enforce theobservance of the laws, as a first guarantee of therights of all persons in Malta, even before action isneeded through the judicial system to repress, sanctionor remedy any breach;

(b) to respond immediately to any request for theprotection and intervention of the law;

(c) to apply the law without discrimination on any groundsuch as sex, race, colour, language, religion, politicalor other opinion, national or social origin, associationwith a national minority, property, birth or other status;

(d) to promote the orderly and peaceful coexistence of allpersons in Malta, paying due attention not only toprivate property rights but also to public property;

(e) to seek to protect the environment as part of thecommon good;

(f) to assist, within reasonable limits, any person seekingthe help of a police or other public officer even thoughthe ultimate responsibility to provide such help maynot lie with the Force;

(g) to perform honestly and effectively all those dutiesassigned to it by this Act or by any other law.

Commissioner and other officers. Amended by: L.N. 46 of 1965.Substituted by:XIII. 2002.4.

5. (1) There shall be a Commissioner of Police who shall beappointed by the Prime Minister and shall have the command,direction, management and superintendence of the Force.

(2) The Commissioner of Police shall be assisted by suchDeputy Commissioners, Assistant Commissioners and such otherpolice officers of such ranks as may from time to time be approvedby the Prime Minister.

(3) The Commissioner shall represent the Force in any judicialproceedings.

(4) Any act or thing which may be done, ordered or performedby the Commissioner may, subject to the orders and directions ofthe Commissioner, be done, ordered or performed by the DeputyCommissioner or an Assistant Commissioner.

3772

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3771

Na osnovu �lana 88 ta�ke 2 Ustava Republike Crne Gore donosim

Ukaz o proglašenju Zakona o policiji1

Proglašava se Zakon o policiji, koji je donijela Skupština Republike Crne Gore na drugoj sjednici prvog redovnog zasijedanja u 2005. godini, dana 26. aprila 2005. godine. Broj: 01-458/2 Podgorica, 27. aprila 2005. godine

Predsjednik Republike Crne Gore

Filip Vujanovi�, s.r.

Zakon o policiji

Zakon je objavljen u "Službenom listu RCG", br. 28/2005 od 5.5.2005. godine.

�lan 2

Policijski poslovi, u smislu ovog zakona, su: 1) zaštita bezbjednosti gra�ana i Ustavom utvr�enih sloboda i prava; 2) zaštita imovine; 3) sprje�avanje vršenja i otkrivanje krivi�nih djela i prekršaja; 4) pronalaženje i hvatanje u�inilaca krivi�nih djela i prekršaja i njihovo dovo�enje

nadležnim organima; 5) održavanje javnog reda i mira; 6) obezbje�ivanje javnih skupova i drugih okupljanja gra�ana; 7) obezbje�ivanje odre�enih li�nosti i objekata; 8) nadzor i kontrola bezbjednosti u saobra�aju; 9) nadzor i obezbje�enje državne granice i vršenje grani�ne kontrole; 10) kontrola kretanja i boravka stranaca; 11) obezbje�ivanje uslova za nesmetan rad sudova, održavanje reda, zaštita lica i

imovine; 12) drugi poslovi odre�eni zakonom.

Poslovi iz stava 1 ovog �lana obavljaju se u skladu sa zakonom, uz poštovanje me�unarodnih standarda i propisa kojima se štite dostojanstvo li�nosti, slobode i prava gra�ana.

1 Source of excerpt: http://www.mup.gov.me/biblioteka/zakoni

3770

24 Annex - Justice, freedom and security

168. LAW ON POLICE

3769

168. LAW ON POLICE

2

Pursuant to Article 88 item 2 of the Constitution of Montenegro, I hereby issue the

Decree Promulgating the Law on Police

I hereby promulgate the Law on Police passed by the Parliament of the Republic of Montenegro at the second sitting of the first ordinary session in 2005 on 26 April 2005.

No 01-458/2

Podgorica, 27 April 2005

President of Montenegro

Filip Vujanović

LAW ON POLICE

(Official Gazette of the Republic of Montenegro 28/05 of 5 May 2005)

I BASIC PROVISIONS

Article 1

This Law regulates police affairs, police powers and duties, status of police officers and control over the work of the police.

Article 2

Within the meaning of this Law, police affairs shall include:

1) protection of security of citizens and constitutionally established rights and freedoms; 2) protection of property; 3) prevention and detection of criminal offences and misdemeanours; 4) detection and capture of perpetrators and their bringing to authorities; 5) maintenance of public peace and order; 6) securing public assemblies and other gatherings of citizens; 7) securing certain persons and objects; 8) supervision and control of traffic safety; 9) supervision of state borders and exercise of border control; 10) control of movement and stay of foreigners; 11) provision of conditions for unhindered work of courts, maintenance of order, protection of

people and property; 12) other affairs as determined by the law.

3768

168. LAW ON POLICE

3

Police affairs referred to paragraph 1 of this Article shall be performed according to the law and in compliance with international standards and regulations relating to the protection of the dignity of person, freedoms and rights of citizens.

Article 3

Police affairs and other duties prescribed by this Law shall be the performed by administration body competent for police matters (hereinafter referred to as the “Police”).

Police affairs shall be performed by authorised police officers (hereinafter referred to as the “police officers”).

Police officers shall apply police powers and perform duties in conformity with the Constitution, law, other regulations and Code of Police Ethics.

Article 4

General regulations on labour relations and civil servants and employees shall apply to police officers, other servants and employees in the Police in respect to those rights, duties and responsibilities which are not specially regulated by this Law.

Article 5

Chief of Police shall govern the work of Police.

Chief of Police shall be appointed and dismissed by the Government of the Republic of Montenegro (hereinafter referred to as the “Government”), at the proposal of the Minister of Interior (hereinafter referred to as the “Minister”).

Government shall submit the proposal for appointment of the Chief of Police to the Parliament of the Republic of Montenegro (hereinafter referred to as the “Parliament”) for the purpose of obtaining its opinion.

Following the debate in the competent working body, the Parliament shall provide its opinion on proposed candidate.

Chief of Police may not be a member of a political party and may not be politically active.

Article 6

Police shall undertake measures necessary for protection of life and health of people and elimination of immediate danger to people and property, should such measures not be undertaken in due time by other competent authorities.

Police shall provide assistance to state administration bodies, local self-government units, legal and physical persons, in the case of general danger caused by natural disasters and epidemics.

Article 7

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Politiewet 20121

Geldend op 17-10-2013

Artikel 3

De politie heeft tot taak in ondergeschiktheid aan het bevoegd gezag en in overeenstemming met de geldende rechtsregels te zorgen voor de daadwerkelijke handhaving van de rechtsorde en het verlenen van hulp aan hen die deze behoeven.

1�� http://wetten.overheid.nl/BWBR0031788/geldigheidsdatum_17-10-2013

3765


Police Law 2012

In force on 17-10-2013

Article 3

It is the police’s task in subordination to the competent authority and in accordance with the laws in force to ensure the effective enforcement of the law and providing assistance to those who need it.

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3759


Law of the Russian Federation "On Police"

Federal Law of the Russian Federation dated 7 February 2011 No. 3- FZ "On Police"

Date of first official publication: 8 February 2011 Published: “RG”- Federal Issue No. 5401 of 8 February 2011; entry into force 1 March 2011

Adopted by the State Duma on 28 January 2011

Approved by the Federation Council on 2 February 2011

Chapter 1. General Provisions

Article 1. Purpose of Police

1. The police are intended to protect the life, health, and rights and freedoms of citizens of the Russian Federation, foreign citizens and stateless persons (hereinafter - citizens; persons); to combat crime; to protect public order and property; and to ensure public safety.

2. The police are immediately to come to the aid of anyone who is in need of protection from criminal or other unlawful acts.

3. Police, within their authority, assist the federal bodies, constituent territories of the Russian Federation, and other state agencies (hereinafter - government agencies), local authorities, other municipalities (hereinafter - municipal authorities), public associations, as well as organizations regardless of ownership (hereinafter - organizations), and officials of these bodies and organizations (hereinafter - the officials) to protect their rights.

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jasmina stanojevic • Odjava sa sistema • Povezano pretraživanje | Propisi | Bilteni | Mišljenja | Pravni Informator | Modeli | Komentari |

"Službeni glasnik RS", br. 101/2005, 63/2009

Z A K O N

o policiji

I. OSNOVNE ODREDBE

Delokrug policije

!"#$%&

!"#$#%&'(#)#'*+!,-&./)+'!0"+12'-+3+'4#)#12+-125+'&)&2-+6)%#7'8!1"!5+'9&'3+"%/:'2/,12&;'Ministarstvo) za koju se obrazuje Direkcija policije.

!"#$#%+'!0+5"%+'*+,!)!:'&25-</)/'8!"#$#%1,/'#'3-&=/'8!1"!5/>'8-&.+'8!3-6,&'5"+3+5#)#'prava u demokratskom društvu i odgovorna je za ostvarivanje bezbednosti u skladu sa zakonom.

Obavljanjem policijskih poslova policija svima pruža zaštitu njihovih prava i sloboda. -#"#,!:'8-&.+)%+'*+62#2/>'8!"#$#%+'8!%/3#)+'8-+5+'#'1"!0!3/':!./'!=-+)#(#2#'1+:!'8!3'&1"!5#:+'#')+')+(#)'&25-</)'?12+5!:'#'*+,!)!:@

?'4#)#12+-125&'1/>'8!-/3'8!"#$#%1,#7'8!1"!5+'!0+5"%+%&'#'3-&=#'*+,!)!:'&25-</)#'8!1"!5#@

Policijske mere

!"#$'&

Policija preduzima mere iz nadležnosti Ministarstva radi ostvarivanja javne bezbednosti.

Policija preduzima hitne mere koje su neophodne za otklanjanje neposredne opasnosti za ljude i imovinu, kad te mere ne mogu pravovremeno da preduzmu drugi nadležni organi, !'(/:&'!3:+7'!0+5/62+5+'2/'!-=+)/@

!"#$#%+'8-&.+'8!:!A'!-=+)#:+'3-.+5)/'&8-+5/>'!-=+)#:+'2/-#2!-#%+")/'+&2!)!:#%/'#'"!,+")/'1+:!&8-+5/>'8-+5)#:'#'B#*#(,#:'"#$#:+'&'1"&(+%&'!862/'!8+1)!12#'#*+*5+)/'prirodnim nepogodama, epidemijama ili drugim oblicima ugrožavanja.

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!"#$#%&'()*!+!,)-)#./0123%#+(

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Policijski službenici

!"#$)&

Policijske poslove obavljaju policijski službenici.

Policijski službenici u Ministarstvu jesu:

FG'&)#B!-:#1+)#'#')/&)#B!-:#1+)#'*+8!1"/)#',!%#'8-#:/)%&%&'8!"#$#%1,+'!5"+6A/)%+'9&'3+"%/:'2/,12&;'!5"+6A/)+'1"&žbena lica);

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Radna mesta polic#%1,#7'1"&.0/)#,+'&25-<&%/':#)#12+->'+,2!:'!'&)&2-+6)%/:'&-/</)%&'#'sistematizaciji radnih mesta u Ministarstvu.

U skladu sa zakonom, policijski službenici odgovorni su za vršenje dužnosti i propuste u svom radu.

Informisanje o radu policije

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3755

Policija ima svoj kodeks etike koji donosi Vlada.

Obaveze policijskih službenika

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Policijski službenik u obavljanju svojih poslova služi zajednici i štiti sva lica od nezakonitih delovanja, obavezan je da uvek postupa profesionalno, odgovorno i humano i da poštuje "%&31,!'3!12!%+)125!>'&="/3'#'(+12'15+,!='"#$+'#'3-&=+')%/=!5+'8-+5+'#'1"!0!3/@

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0#*02+2).()0(4)-)&"-5(%-)/(30243!6)#"#)0(73!6)&7(3%(

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Za vreme vanrednog ili ratnog stanja policija zadatke iz svog delokruga izvršava tako što )+12+"#:'8-!:/)+:+'8-#"+=!<+5+'15!%&'!-=+)#*+$#%&>'!0"#,/'#':/2!3/'-+3+>'&'1,"+3&'1+'zakonom i aktima donetim radi otklanjanja vanrednog, odnosno ratnog stanja.

Upotrebu materijalno-2/7)#(,#7'1-/312+5+>'#)B-+12-&,2&-/>'*/:"%#62+'#'!0%/,+2+'8!"#$#%/'*+'vreme vanrednog ili ratnog stanja planira policija.

H+'#*5-6+5+)%/'!3-/</)#7'*+3+2+,+'8!"#$#%/'*+'5-/:/'5+)-/3)!='#"i ratnog stanja mogu da 1/'-+18!-/<&%&'#'1-/3125+'#'!8-/:+'8-#0+5"%/)#'8!'!1)!5&':+2/-#%+")/'!0+5/*/@

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!&2832)+202).()!82.829#/(3%2)%(/3!6)024(

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3754

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� � �

Law On Police

Police Measures

Article 2

In order to establish public security, Police shall take measures that are under jurisdiction of the Ministry.

Police shall take necessary emergency measures in order to eliminate immediate threat to people and property in cases when such masseurs cannot be taken by other competent organs and shall immediately inform the latter.

Police shall provide assistance to state administration organs, the organs of autonomous regions and local self-government, and to legal and natural entities in the event of a public danger caused by natural disasters, epidemics or any other threat.

Regarding duties under paragraphs 2 and 3 herein, Police shall perform rescue operations and provide first aid to people and shall use appropriate equipment and carry out training of police officers assigned to perform these duties.

Police Assistance in Law Enforcement

Article 3

If there are reasonable grounds to expect resistance during the enforcement of regulations of the state organs and public legal entities, Police shall provide assistance to the aforementioned organs and entities, upon their written request, in order to carry out the enforcement.

[…]

Duties of Police Officers

Article 13

Police officers shall take necessary activities at any time in order to protect lives and safety of people and property.

In performing their tasks, police officers shall serve the community and protect all persons against illegal activities; they shall always act professionally, responsibly and humanely with full respect for human dignity and the reputation and honour of every person including their other rights and freedoms.

Police officers shall submit to their immediate superior officer written reports on the information obtained through their police work or by exercising their police powers or in another way.

/…/

3753

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3752

U K A Z

o razglasitvi zakona o policiji (ZPol)1

II. NALOGE IN ORGANIZACIJA POLICIJE

3. �len

Naloge policije so:

– varovanje življenja, osebne varnosti in premoženja ljudi;

– prepre�evanje, odkrivanje in preiskovanje kaznivih dejanj in prekrškov, odkrivanje in prijemanje storilcev kaznivih dejanj in prekrškov, drugih iskanih oseb ter njihovo izro�anje pristojnim organom;

– vzdrževanje javnega reda;

– nadzor in urejanje prometa na javnih cestah in nekategoriziranih cestah, ki so dane v uporabo za javni promet;

– varovanje državne meje in opravljanje mejne kontrole;

– opravljanje nalog, dolo�enih v predpisih o tujcih;

– varovanje dolo�enih oseb, organov, objektov in okolišev;

– varovanje dolo�enih delovnih mest in tajnosti podatkov državnih organov, �e z zakonom ni druga�e dolo�eno;

– izvajanje nalog, dolo�enih v tem in drugih zakonih in podzakonskih predpisih.

1 Source of Excerpt: ��

3751

Pregled besedila opravila Služba za prevajanje in lektoriranje, september 2007. Besedilo vsebuje

spremembe in dopolnitve Zakona o policiji, in sicer novele ZPol-C (50/2004), ZPol-D (53/2005),

ZPol-E (98/2005) in ZPol-F (78/2006).

MINISTRY OF THE INTERIOR

Disclaimer: The English language translation of the text of the Police Act below is provided for

information only and confers no rights nor imposes any obligations on anyone. Only the official

publication of the Police Act in Slovene language, as published and promulgated in the Official

Gazette of the Republic of Slovenia, is authentic. The status of the translated text of the Police

Act is as of 7 September 2007. This translation may not be published in any way, without the

prior permission of the Ministry of the Interior of the Republic of Slovenia, but may be used for

information purposes only. Further editorial revisions of this translation are possible.

POLICE ACT

OF THE REPUBLIC OF SLOVENIA

II. POLICE ORGANISATION AND RESPONSIBILITIES

Article 3

The responsibilities of the police shall be as follows:

1. to protect people’s lives, their personal safety and property;

2. to prevent, detect and investigate criminal offences and misdemeanours, to detect and arrest perpetrators of criminal offences and misdemeanours and of other wanted persons and their hand-over to competent authorities, as well as to collect evidence and investigate the circumstances that are important for the establishment of property benefit resulting from criminal offences and misdemeanours;

3. to maintain public order;

4. to supervise and direct traffic on public roads and on unclassified roads currently in use for traffic;

5. to protect state borders and perform border control;

6. to implement duties set forth in the aliens legislation;

7. to protect particular individuals, bodies, buildings and districts;

8. to protect particular work premises and classified information of the state bodies unless otherwise prescribed by law;

9. to carry out the tasks set forth in this Act, other acts and implementing regulations.

The tasks from the preceding paragraph shall be carried out by uniformed and criminal police officers and by specialist police units organised within the General Police Directorate, police directorates and police stations.

The tasks of the police relating to the management and decision-making within misdemeanour

3750

proceedings regulated by the law governing misdemeanours shall be carried out by police stations, internal police organisational units of the General Police Directorate and regional police directorates whose authorised officers shall make decisions in and conduct summary procedures before the misdemeanour authority.

Pregled besedila opravila Služba za prevajanje in lektoriranje, september 2007. Besedilo vsebuje

spremembe in dopolnitve Zakona o policiji, in sicer novele ZPol-C (50/2004), ZPol-D (53/2005),

ZPol-E (98/2005) in ZPol-F (78/2006).

The internal organisation of the police referred to in the second and third paragraphs of this Article shall be laid down by an organisation and job classification act.

3749

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3748

722[1979]

A

[COURT OF APPEAL]

R E G I N A v. D Y T H A M

1979 July 9; 18 Lord Widgery C.J., Shaw L J . and McNeill J.

Police—Duties—Law enforcement—Misconduct of officer of B justice—Constable witnessing assault wilfully omitting to preserve peace or protect victim or arrest assailants—Wilfulneglect without reasonable excuse of justification—Whetheroffence

The appellant, who was a constable in uniform, was some30 yards away from the entrance to a club, from which hesaw a man ejected. Shortly afterwards there was a fight C involving cries and screams and the man was beaten andkicked to death in the gutter outside the club. Theappellant pleaded not guilty to an indictment chargingmisconduct of an officer of justice in that he, being presentand a witness to the criminal offence of violent assault on theman by others, deliberately failed to carry out his duty as a police constable by wilfully omitting to take any steps topreserve the Queen's peace or to protect the person of the D man or to arrest his assailants or otherwise bring them tojustice. The appellant demurred to the indictment on theground that as laid it disclosed no offence, since misconductof an officer of justice involved malfeasance or at least a misfeasance involving an element of corruption and notmerely non-feasance as in the case of the appellant. Thejudge ruled against the demurrer. The defence was that theappellant had seen nothing more than that the man was E turned out of the club, and the jury were directed that thecrucial question was whether the appellant had seen theattack on the man. The appellant was convicted.

On appeal against conviction on the ground that the rulingon demurrer was wrong: —

Held, dismissing the appeal, that the offence of a publicofficer wilfully neglecting to perform a duty which he wasbound to perform by common law or by statute involved F that the neglect had to be wilful and not merely inadvertent,and had to be culpable in the sense of being without reasonableexcuse or justification; that the element of culpability was notrestricted to corruption or dishonesty but had to be of sucha degree that the misconduct impugned was calculated toinjure the public interest so as to call for condemnation andpunishment; that it was for the jury to decide whether theevidence revealed the necessary degree of culpability; and that, G since the allegation against the appellant was not of merenon-feasance but of deliberate failure and wilful neglect, theruling on demurrer was correct.

Reg. v. Wyat (1705) 1 Salk. 380; Rex v. Bembridge (1783)3 Doug. K.B. 327 and Reg. v. Llewellyn-Jones (1966) 51Cr.App.R. 4; [1968] 1 Q.B. 429, C.A. considered.

LI

The following cases are referred to in the judgment:

Reg. v. Llewellyn-Jones (1966) 51 Cr.App.R. 4; [1968] 1 Q.B. 429; [1967]

3 W.L.R. 1298; [1967] 3 All E.R. 225, C.A.

3747

7231 Q.B. Reg. v. Dytham (C.A.)

Reg. v. Quinn [1962] 2 Q.B. 245; [1961] 3 W.L.R. 611; [1961] 3 AllA E.R. 88, CCA.

Reg. v. Wyat (1705) 1 Salk.380; Fortes.Rep. 127; 2 Ld. Raym. 1189; subnom. Reg. v. Wiat, 11 Mod.Rep. 53.

Rex v. Bembridge (1783) 3 Doug. K.B. 327.

The following additional cases were cited in argument:

3 Crouther's Case (1599) Cro.Eliz. 654.Fentiman, Ex parte (1834) 2 Ad. & E. 127.Reg. v. Hall [1891] 1 Q.B. 747.Rex v. Borron (1820) 3 B. & Aid. 432.Rex v. Davie (1781) 2 Doug. K.B. 588.Rex v. Williams (1762) 3 Burr. 1317.

Q APPEAL against conviction.On October 10, 1978, at Liverpool Crown Court before Cantley J.

the appellant, Philip Thomas Dytham, on arraignment on an indictmentcharging misconduct of an officer of justice pleaded not guilty, and thetrial was adjourned. On November 7, 1978, at Liverpool Crown Court,Neill J. ruled against a demurrer to the indictment. On November 9 the appellant was convicted. He was fined £150, payable in four

D months, or three months' imprisonment in default, and he was orderedto pay £50 towards the legal aid costs of his defence. He appealedagainst conviction on the ground that the judge erred in ruling againstthe demurrer, in which it was contended that the indictment did notcharge an offence known to the law.

The facts are stated in the judgment.

EGerard Wright Q.C. and David Maddison for the appellant. It is

conceded that the appellant as a police constable holds a public office.It is further conceded that at common law there is a generic offence ofmisconduct or misbehaviour of a public officer. The question is what isthe nature and what are the ingredients of the offence.

The offence is confined to malfeasance, namely, doing somethingintrinsically wrong. It does not extend to misfeasance, namely, doingsomething, which one is entitled to do, badly or negligently, or to non-feasance, namely, failing to do something which the officer may, orshould, do. The indictment alleges non-feasance.

The argument for the appellant comprises nine stages. First, theorigins of the offence of misconduct in a public officer can probably be

G traced back to the jurisdiction of justices in Eyre in the 13th century:see History of English Law, Pollock and Maitland, 2nd ed. (1898), vol. 2,p. 520.

Secondly, one duty of the justices in Eyre is overseeing, control and,if need be, the punishment of local units of inhabitants, such as thetithing or the hundred. As jurisdiction evolves it covers officials of the

u tithing or hundred. That is an administrative function, and the justicesin Eyre are acting as an administrative arm of the Crown.

Thirdly, the exercise of this jurisdiction arises on the presentment ofmisdeeds or misdoings by the local inhabitants and, at a later stage, by

3746

724

Reg. v. Dytham (C.A.) [1979]

the " constable" appointed by the inhabitants, sometimes called the . tithings man, or borseholder: see the Statute of Winchester 1285; andalso A History of Police in England and Wales, T. A. Critchley, reviseded. (1978) p. 6.

Fourthly, in the course of time, the presentment procedure evolves onthe criminal side into the bill found by the grand jury. Later, the grandjury being abolished, the procedure becomes committal proceedings. Onthe administrative side development is through the prerogative writs, B mandamus for non-feasance, certiorari for misfeasance and malfeasancewould be dealt with by presentment of the grand jury's bill: see Hawkins's Pleas of the Crown, (1824 ed.), p. 412, c. 27; Rex V. Williams (1762) 3 Burr. 1317; Rex v. Davie (1781) 2 Doug.K.B. 588; Rex v. Bembridge (1783) 3 Doug.K.B. 327; Rex v. Borron (1820) 3 B. & Aid. 432; Ex parte Fentiman (1834) 2 Ad. & E. 127; Reg. V. Hall [1891] 1 Q.B. 747 and r

Reg. v. Llewellyn-Jones [ 1968] 1 Q.B. 429.Fifthly, one genus of public officer is the " constable," however named.

In fact that office so declines and the officials become so degraded thatthere is no authority regarding a police officer as such save Reg. V. Wyat (1705) 1 Salk. 380: see also Crouther's Case (1599) Cro.Eliz. 654.

Sixthly, the office of constable is resurrected and transformed bymodern statutes culminating in the Police Act 1964. D

Seventhly, the Police Act 1964 provides a code covering exclusivelyall matters of misfeasance or non-feasance in the exercise of a policeofficer's duty.

Eighthly, malfeasance is not dealt with by the Act of 1964 becausemalfeasance is something which any public official can commit and canbe dealt with by criminal proceedings. One would not expect the statute E to withdraw the liability of a police officer or treat him in any waydifferently from any other public officer so far as concerns malfeasance.

Ninthly, the only authority against the appellant's eighth submissionis Reg. v. Wyat, 1 Salk. 380, which is distinguishable and need not befollowed. Since the Act of 1964 provides a code of conduct, it is un-necessary to go back to ancient authority. A constable is not to bedistinguished from any other public servant.

T. P. Russell Q.C. and H. H. Andrew for the Crown. No attempt ismade to define the offence with which the appellant is charged. Notevery breach of the Code of Discipline for a police officer laid down inRegulations under the Police Act 1964 will necessarily be indictable. Itis for the jury to decide on the facts whether the misfeasance or non-feasance alleged is so wilful and culpable as to fall within the terms of G the offence charged in the indictment. Each offence has to be dealt withon its own facts. In the instant case the appellant deliberately shut hiseyes to the attack being committed in his presence.

Ample textbook authority exists to support the proposition that a constable who acts as the appellant acted commits an offence: see, e.g.,Stephen's Digest of the Criminal Law, 9th ed. (1950), p. 114, art. 145. J_JThe offence exists and has existed since the 18th century.

Wright Q.C. replied.Cur. adv. vult.

3745


July 18. LORD WIDGERY C.J. The judgment that I am about toread is the judgment of the court prepared by Shaw L.J.

The appellant was a police constable in Lancashire. On March 17,1977, at about 1 a.m. he was on duty in uniform and was standing by a hot dog stall in Duke Street, St. Helens. A Mr. Wincke was inside thestall and a Mr. Sothern was by it. Some 30 yards away was theentrance to Cindy's Club. A man named Stubbs was ejected from the

B club by a bouncer. A fight ensued in which a number of men joined.There arose cries and screams and other indications of great violence.Mr. Stubbs became the object of a murderous assault. He was beatenand kicked to death in the gutter outside the club. All this was audibleand visible to the three men at the hot dog stall. At no stage did theappellant make any move to intervene or any attempt to quell the

P disturbance or to stop the attack on the victim. When the hubbub haddied down he adjusted his helmet and drove away. According to theother two at the hot dog stall, he said that he was due off and wasgoing off.

His conduct was brought to the notice of the police authority. As a result he appeared on October 10, 1978, at the Crown Court at Liverpoolto answer an indictment which was in these terms:

" The charge against you is one of misconduct of an officer ofjustice, in that you. . . misconducted yourself whilst acting as anofficer of justice in that you being present and a witness to a criminal offence namely a violent assault upon one . . . Stubbs bythree others deliberately failed to carry out your duty as a policeconstable by wilfully omitting to take any steps to preserve the

E Queen's peace or to protect the person of the said.. . Stubbs or toarrest or otherwise bring to justice [his] assailants."

On arraignment the appellant pleaded not guilty and the trial wasadjourned to November 7. On that day, before the jury was empanelled,counsel for the appellant took an objection to the indictment by way ofdemurrer. The burden of that objection was that the indictment as laid

F disclosed no offence known to the law. Neill J. ruled against the objectionand the trial proceeded. The defence on the facts was that the appellanthad observed nothing more than that a man was turned out of the club.It was common ground that in that situation his duty would not haverequired him to take any action. The jury were directed that the crucialquestion for their consideration was whether the defendant had seen the

Q attack on the victim. If he had they could find him guilty of the offencecharged in the indictment. The jury did return a verdict of guilty. Hencethis appeal which is confined to the matters of law raised by the demurrerpleaded at the court of trial.

At the outset of his submissions in this court counsel for the appel-lant conceded two matters. The first was that a police constable is a public officer. The second was that there does exist at common law anoffence of misconduct in a public office.

From that point the argument was within narrow limits thoughit ran deep into constitutional and jurisprudential history. The effect of

3744

726Reg. v. Dytham (C.A.) [1979]

it was that not every failure to discharge a duty which devolved on a . person as the holder of a public office gave rise to the common lawoffence of misconduct in that office. As counsel for the appellant put it,non-feasance was not enough. There must be a malfeasance or atleast a misfeasance involving an element of corruption. In support ofthis contention a number of cases were cited from 18th and 19th centuryreports. It is the fact that in nearly all of them the misconduct assertedinvolved some corrupt taint; but this appears to have been an accident B of circumstance and not a necessary incident of the offence. Mis-conduct in a public office is more vividly exhibited where dishonesty isrevealed as part of the dereliction of duty. Indeed in some cases theconduct impugned cannot be shown to have been misconduct unless itwas done with a corrupt or oblique motive. This was the position forexample in Rex v. Bembridge (1783) 3 Doug.K.B. 327; and also in Q the modern case of Reg. v. Llewellyn-J ones [1968] 1 Q.B. 429. Therethe registrar of a county court was charged in a count which allegedthat he had made an order in relation to funds under his control " inthe expectation that he would gain personal advantage from the makingof such order."

On a motion to quash the count as disclosing no offence known tothe law I, as trial judge in the course of my ruling, made the following D pronouncement, (1966) 51 Cr.App.R. 4, 6:

" The authorities to which I have been referred show that there isa variety of ways in which the holder of a public office may beindicted under this principle for misconduct or misbehaviour. Itis clear that a culpable failure to exercise a public duty may, becausethe duty is a public one, lay the defaulter open to indictment for E criminal offences, whereas, had he been working for a privateemployer, his default would have been no more than a civil liability.Even so, it is not easy to lay down with precision the exact limitsof the kind of misconduct or misbehaviour which can result in anindictment under this rule. I have formed a clear view, but statedin hypothetical terms, that if the registrar of a county court when F

exercising his power to order payment out of court of money heldon behalf of a beneficiary were to make an order in expectation ofsome personal benefit which he hoped to obtain and in circum-stances where, had it not been for the personal benefit, he would nothave made the order, that would be an example of misconduct in a public duty sufficient to come within this rule. The reason why I feel that that would come within the rule is because in that hypo- G thetical case a public officer would be distorting the course ofjustice to meet his own personal ends and, in my opinion, it wouldbe sufficient to justify a conviction if it could be shown that he hadmade such an order with intent to obtain personal benefit for him-self and in circumstances in which there were no grounds forsupposing that he would not have made the order but for his „ personal interest and expectation. On the other hand, I havereached an equally clear view that it is not enough to bring a county court registrar within the principle merely to show that,

3743


. when making an order which was within his powers and whichhe could make for perfectly proper motives, he knew that by a side wind, as it were, he was going to gain some personal benefit.The mere fact that he knows of his personal interest is, in myview, a very good ground for his declining to exercise jurisdictionand for his arranging for someone else, such as the judge, to makean order for him. Everyone in judicial office knows how unwise

B it is to deal with a case in which personal interests are raised, butI would not be prepared to say that it would be misconduct for thispurpose for a registrar to make a decision which did affect hispersonal interests, merely because he knew that his interests were soinvolved, if the decision was made honestly and in a genuine beliefthat it was a proper exercise of his jurisdiction so far as the bene-

_ ficiaries and other persons concerned came into it." When one looks at the terms of count 1 as it now stands, it

seems to me that it alleges no more than knowledge on the part ofthe defendant that his personal interest was involved. For thereasons I have given, it is not enough to disclose an offence known tothe law and, if the matter rested there, that count and others to whichsimilar considerations apply would have to be quashed. On the

D other hand, it is not difficult to amend count 1 so as to introducethe vital element to which I have already referred and I amsatisfied that such an amendment can be made without injustice inthe circumstances of this case."

So also in Reg. v. Wyat (1705) 1 Salk. 380 it was held that " wherean officer " (in that case a constable) " neglects a duty incumbent on

E him, either by common law or statute, he is for his default indictable."Counsel for the appellant contended that this was too wide a statementof principle since it omitted any reference to corruption or fraud; butin Stephen's Digest of the Criminal Law, 9th ed. (1950), p. 114, art. 145are to be found these words:

" Every public officer commits a misdemeanour who wilfullyp neglects to perform any duty which he is bound either by common

law or by statute to perform provided that the discharge of suchduty is not attended with greater danger than a man of ordinaryfirmness and activity may be expected to encounter."

In support of this proposition Reg. v. Wyat is cited as well as Rex v.Bembridge, 3 Doug.K.B. 32, a judgment of Lord Mansfield. The neglect

G must be wilful and not merely inadvertent; and it must be culpable inthe sense that it is without reasonable excuse or justification.

In the present case it was not suggested that the appellant couldnot have summoned or sought assistance to help the victim or to arresthis assailants. The charge as framed left this answer open to him.Not surprisingly he did not seek to avail himself of it, for the facts

„ spoke strongly against any such answer. The allegation made was notof mere non-feasance but of deliberate failure and wilful neglect.

This involves an element of culpability which is not restricted tocorruption or dishonesty but which must be of such a degree that the

3742

728

Reg. v. Oytham (C.A.) [1979]

misconduct impugned is calculated to injure the public interest so as . to call for condemnation and punishment. Whether such a situationis revealed by the evidence is a matter that a jury has to decide. Itputs no heavier burden upon them than when in more familiar contextsthey are called upon to consider whether driving is dangerous or a publication is obscene or a place of public resort is a disorderly house:see Reg. v. Quinn [1962] 2 Q.B. 245.

The judge's ruling was correct. The appeal is dismissed. B

Appeal dismissed.

July 24. Application for a certificate under section 33 (2) of theCriminal Appeal Act 1968.

Application refused. C

Solicitors: Mace & Jones, Huyton; Director of Public Prosecutions.

L. N. W.

D

E

F

END OF VOLUME AND OF QUEEN'S BENCH SERIES FOR 1979.

G

H

3741

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3740

R. KANG-BROWN

Répertorié : R. Kang-BrownIndexed as: R. Kang-Brown

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Le juge LeBel LeBel J.

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Le juge Binnie Binnie J.

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3681

No. 2005/01839/C2

Neutral Citation Number: [2006] EWCA Crim 3427

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

The Strand

London

WC2A 2LL

Tuesday 14 February 2006

B e f o r e:

LORD JUSTICE MOSES

MR JUSTICE JACK

and

MR JUSTICE ROYCE

__________________

R E G I N A

− v −

YOHAN CLARKE

__________________

Computer Aided Transcription by

Smith Bernal, 190 Fleet Street, London EC4

Telephone 020−7421 4040

(Official Shorthand Writers to the Court)

__________________

MR D LOVELL PANK QC appeared on behalf of THE APPELLANT

MISS W R JOSEPH QC, MR I DARLING and MISS H STANGOE (14.02.06)

appeared on behalf of THE CROWN

____________________

Judgment

As Approved by the Court

Crown copyright©

____________________

3680

Tuesday 14 February 2006

LORD JUSTICE MOSES:

1. This appellant appeals against his conviction for murder and for arson with intent to

endanger life. He was convicted after a lengthy trial at Woolwich Crown Court, presided

over by His Honour Judge Dunn QC. He was sentenced to life imprisonment with a

minimum of seventeen years.

2. The nature of the appeal permits us to deal with the facts shortly. The prosecution case

was that the appellant went to a crack house, 6 Smithers House, Penge, in order to retrieve a

mobile telephone which another person had pawned in return for drugs. The flat was owned

by a Housing Association. The tenant was a user of cocaine, and it appears that most, if not

all, of the inhabitants dealt in, and used, drugs on those premises. It was alleged against the

appellant that he was armed with a petrol can and in the confined space of the hall poured a

quantity of petrol from it. He then lit that petrol, causing a fire which killed one 17 year old

in the flat and injured a number of others, including one who, at the time of the trial, was

suffering from brain damage. The deceased was seriously injured. He only regained

consciousness when he was removed from the scene of the fire. He remained in hospital for

two weeks. There was important evidence which showed that, when he was found by the fire

crew, he was wearing gloves. He was wearing gloves at the time of the fire, since burn

marks on his arms ended at the point where the gloves began and there were injuries to at

least one of his fingers through holes caused by the fire in the gloves.

3. There was a body of evidence from those within the flat who described the appellant

arriving with the petrol can. There was evidence from a man called Bull, who was a friend

of the girl alleged to have taken and pawned the appellant's mobile phone. He had a number

of serious previous convictions. The appellant contended that it was Bull who had brought

the petrol and ignited it in the flat, not the appellant.

4. There was also evidence which came from others who were not in the flat, which tended

to show that it was the appellant who had brought petrol to the flat and ignited it. In

particular there was the evidence of the gloves, and evidence from someone who had sold the

appellant a motor car the day before. In that motor car, so the vendor said, was a petrol can

similar to the one found at the scene of the fire. It was a very common make of petrol can

but it was not found in the car driven by the appellant after this incident.

5. There was DNA on the gloves matching that of the appellant, and also a handgun

(although a model) which the appellant said he had been given by Bull. He said that he had

taken it to the flat in case there should be trouble. Witnesses described him as wearing at the

time a three−quarter length jacket in which was a red lighter, a box of matches and another

disposable cigarette lighter.

6. There was forensic evidence as to the cause of the fire. The appellant not only said that

he did not light the fire, but his defence raised the issue as to whether anybody had

deliberately struck a match or lighter so as to ignite it. Expert evidence called by the Crown

suggested that it was not a realistic possibility that anything else could have ignited the

petrol; but there was canvassed the possibility that a lamp in the flat might, accidentally,

when it was switched off, have ignited the petrol. The prosecution experts denied that as a

3679

realistic possibility. One of them described it as merely remote, although another said that it

was possible to cause a spark if the switch of the lamp was on the floor and was pushed from

on to off.

7. The appellant accepted the motive which the prosecution sought to establish, namely

anger that his mobile phone had been pawned, but he denied that he had introduced the petrol

into the hallway. He said that it was the man Bull who carried a petrol can. He said that

there was an argument about the telephone. Dealers in the flat had lunged towards him after

he had shown them the model of the gun which he had been lent by Bull. There was a

scuffle against the wall, he said, and then "the whole thing went up". It was an important

plank of his case that he could not possibly be supposed to have ignited the petrol since he

himself was clearly going to be injured by it. There was some evidence that the door through

which he had entered had been locked.

8. The appellant also adduced evidence not only that the petrol can was very widely sold, but

from an expert who said that because the lamp had no earth it was very dangerous, and that a

spark from the switch, whilst unlikely, was very possible if there was a correct concentration

of vapour within the switch.

9. Those were the rival facts and contentions. As counsel for the defence at trial and in the

appeal before us, Mr Lovell−Pank QC submitted, there were three essential issues, the

resolution of which dictated the appropriate verdicts. Firstly, had the prosecution made the

jury sure that the appellant had the petrol can when he entered that flat, sprinkled petrol from

it into the hallway and deliberately ignited it? If they were sure of that, he was guilty of

murder. Secondly, if not sure of that, was the jury sure that the appellant sprinkled the petrol,

but nevertheless not sure whether or not the ignition was caused accidentally by a spark from

the lamp? If that was their state of mind −− in other words that it was not sure that he had

deliberately ignited the petrol, he was not guilty of murder but guilty of manslaughter. A

case could have been advanced by the Crown on the basis that the appellant was guilty of

murder if he had brought the petrol into the confined space of the hallway and sprinkled it on

the ground, if he had the necessary murderous intention, however it became ignited. But that

was not the way the prosecution put the case, and we need not deal with that possibility

further. Thirdly, if, as the appellant contended, the jury was not sure that he had the petrol

can and not sure that he ignited the vapour, he was not guilty of any offence.

10. We turn to the issues in this appeal. Although the judge's directions in law in relation to

murder and manslaughter formed the basis of criticism in this appeal under ground 2, Mr

Lovell−Pank QC advanced them first. He was right to do so since they colour the approach

that this court should take in relation to the summing−up as a whole and its effect upon the

safety of the jury's verdicts.

11. We turn to the judge's directions as to murder and manslaughter. It was fairly accepted

by Miss Joseph QC for the Crown (who also appeared at trial) that at the outset of his

summing−up the judge confused the meaning of murder and voluntary manslaughter in an

opening passage which not only served to confuse the jury, but was also wrong. It is

necessary to set out the whole of that passage so as properly to appreciate whether it

accurately conveyed to the jury the legal framework which they were bound to apply to the

facts which they found. It reads:

3678

"Murder has two elements, the first is that there is an

intentional and unlawful killing caused, or substantially caused,

by an act which sober and reasonable people would inevitably

realise must subject the victim to at least the risk of some harm,

not necessarily serious harm. Or articulated and expressed

another way, the first element in murder is this: that the

defendant carried out an intentional and unlawful act which

causes or substantially causes death and is an act which sober

and reasonable people would inevitably realise must subject

the victim to at least the risk of some harm, not necessarily

serious harm. Now, in this first leg of murder, the first element

of murder, intentional means an intentional and unlawful act.

Intentional means deliberate, not accidental. Unlawful means

without any lawful excuse. So, it is an intentional and

unlawful act, an act which sober and reasonable people would

inevitably realise must subject the victim to at least the risk of

some harm, not necessarily serious harm, it must be proved so

that you are sure. But remember that the defendant does not

say that he carried out the act of starting the fire, or that it was

not intentional, or that he carried out the act of starting the fire

lawfully, or that sober and reasonable people would not realise

that starting the fire must submit the victim to some harm; he

says he did not start the fire, or have anything to do with

starting the fire and that is the central issue in the case. Are

you satisfied so that you are sure that it was the defendant who

started the fire on January 7th 2004, on the third floor at 6

Smithers House? If you are sure, a fact for you, that it was the

defendant who started the fire, then it is fully open to you to

find that it was the defendant who started the fire, then it is

fully open to you to find that it was an intentional act and not

an accidental act. It is fully open to you to find that it was

unlawful, namely, with no lawful excuse and fully open to you

to find that it was an act which sober and reasonable people

would realise that it would subject the victim to at least some

harm. It is fully open to you, if you are sure that it was the

defendant who started that fire, to find that the intentional and

unlawful act caused the death of Lincoln Patrick Stewart. That

is the first element in murder, the intentional and unlawful and

dangerous act which caused, or substantially caused death.

The second element is that at the time of committing the

intentional and unlawful act which caused death, the defendant

had in his mind an intent or intention to cause death, or to

cause really serious physical harm. So there are two distinct

elements. If you are sure of the first, the unlawful and

deliberate act, which sober and reasonable people would

inevitably realise must subject the victim to the risk of some

3677

harm, which caused, or substantially caused death, if you are

sure of the first, but not the second element in murder, namely,

that at the time the defendant carried out the deliberate and

intentional and unlawful act which caused, or substantially

caused death, if you are not sure of the second element, that the

defendant had, at that time he lit the fire, an intention to kill, or

to cause really serious bodily harm, then your verdict should be

not guilty of murder but guilty of manslaughter. I hope I have

made that clear. If you are sure of the first, the unlawful and

deliberate and dangerous act, sprinkling the petrol and lighting

the fire, if you are sure of that, but not when he did that, but at

the time he did that he had it in his mind either to kill, or to

cause really serious bodily harm, then your verdict will be not

guilty of murder, but would be guilty of manslaughter."

This direction was wrong in a number of respects. Firstly, it repeatedly confused the actus

reus of murder with that which applies to involuntary manslaughter. It was wrong to refer to

an act which sober and reasonable people would inevitably realise must subject the victim to

at least the risk of some harm, although not necessarily serious harm. That direction was

repeated on a number of occasions. It has no place in the definition of murder.

12. Secondly, that repeated misdirection confused and undermined the direction as to the

intention which the Crown had to prove to establish murder. It is true that the judge sought

to distinguish between the first and second elements in murder, but his repeated references to

what sober and reasonable people must have realised becomes meaningless and confusing

when the jury turned to consider the second question, namely whether a murderous intention

had been proved. If the prosecution must prove an intention to kill or to cause really serious

bodily harm, the element erroneously introduced by the judge, requiring proof of what the

reasonable person would realise, makes no sense.

13. Thirdly, nowhere in the passage we have cited does the judge relate his directions to the

issues in the case. A recitation of the law of murder, without any relation to the facts in

issue, may often not amount to a misdirection, even though this court frequently emphasises

the need to relate directions to the facts of the case and omit directions which are irrelevant to

the issues. But in this case it was incumbent on the judge to explain the difference between

murder and manslaughter by reference to the issues raised by prosecution and defence.

Although the judge referred to the issue as to whether the Crown could prove that the

appellant had started the fire, he did not distinguish between proof that the appellant brought

the can into the house and sprinkled petrol in the hallway and proof that it was he who

ignited the petrol. This was a live issue. Although the appellant denied that it was he who

had brought a can of petrol into the house and sprinkled its contents, the jury had to consider

whether, even if he had done so, the Crown had proved that he had ignited it, or merely that

it had been ignited by an accidental spark from a lamp, as the defence contended was a

realistic possibility. The use of the expression "starting the fire" elides the two facts:

bringing petrol in, and igniting it.

3676

14. It was also suggested that the judge should not have used the word "intentional". It was

never suggested that if the appellant had brought in the can and sprinkled petrol from it, that

that was an accident. The only accident suggested was its ignition. If the summing−up had

tied the definition of murder and manslaughter to the facts, there was no possibility of being

misunderstood. But since the judge explained that intentional meant deliberate, we do not

agree that by his repeated use of the word "intentional" the judge may have confused the

jury, but he needed to say no more than that to prove murder the prosecution had to prove

that the appellant lit the petrol deliberately. The issues were clear. It was not difficult to

apply the law to them. By doing so, the judge could have achieved the clarity and accuracy

which this case demanded. We conclude that his directions as to murder and the distinction

between that of murder and manslaughter were wrong in serious and significant respects.

15. We turn to consider whether those defects were cured by what followed, as the Crown

contended. An agreed correct version of the distinction between murder and manslaughter

was handed up in writing by both counsel for the Crown and for the defence. Both of them

were concerned as to the directions of law on the first day. The direction on murder and

manslaughter were contained in a document headed "Directions on Murder and

Manslaughter". It reads:

"Count 1 involves two possible offences, murder and

manslaughter.

Murder is:

1) Causing the death of another person (in this case

Lincoln Stewart) by a deliberate and unlawful act

and −−

2) At the time of the act there is an intention to kill or to

cause really serious harm.

If you are sure of both of these things, the defendant is guilty

of murder.

If you are not sure he caused the death of Lincoln Stewart, then

he is not guilty of murder or manslaughter.

If you are sure he caused the death, but not sure he had the

necessary intent to kill or cause really serious harm, then

consider manslaughter.

The defendant is guilty of manslaughter it:

1) He deliberately did an unlawful act that caused, or was

a substantial cause of, the death of Lincoln Stewart,

and −−

3675

2) The act was one which all sober and reasonable people

would recognise as involving the risk of some physical

harm, even if not serious harm, and even if the

defendant did not recognise the risk."

For a reason which remains unexplained and inexplicable, the judge failed to follow the

advice of both counsel and declined to pass a written copy of those directions to the jury. It

is commonplace and much to be recommended that judges, however experienced, should

pass their written directions to the jury on issues such as the distinction between murder and

manslaughter, so long as they are couched in clear terms, shown to counsel in advance, and

are not too lengthy. This judge did not adopt that course, but he proceeded to give a further

direction on the issue. He said:

"Now, members of the jury, I will remind you that in murder

there are two elements, first: to cause an unlawful killing,

causing the death of another person, Lincoln Steward in this

case, by a deliberate, that is an intentional and unlawful act.

That is the first element, causing death by a deliberate and

unlawful act. The second is, that at the time of that act there is

an intention in the mind of the defendant to kill or to cause

really serious physical harm. If you are sure of both of those

matters the defendant is guilty of murder. If you are sure that

he caused, or substantially caused the death of Lincoln Stewart,

but not that he had the necessary intent to kill him, or to cause

him really serious bodily harm, then he is not guilty of murder,

but you consider manslaughter. I remind you that

manslaughter is committed if he deliberately did an unlawful

act which caused, or substantial caused the death of Lincoln

Stewart and that act, which was unlawful and deliberate and

caused or substantially caused the death of Lincoln Street, that

act was one which all sober and reasonable people would

recognise as involving the risk of some physical harm, even if

not serious harm and even if the defendant did not recognise

the risk. Now, I think yesterday I inadvertently transposed that

into the definition of murder. The requirement that all sober

and reasonable people would recognise the act as involving the

risk of some physical harm, even if not serious harm, is part of

the definition and meaning of manslaughter, it is not part of the

definition of murder. Murder are those two elements:

committing an act which causes the death of another person, or

substantially causing the death of another person by a

deliberate and unlawful act and secondly, at the time of that act

there was an intention to kill or to cause really serious harm.

Remember, of course, to consider each count quite separately.

First, count 1, and then whatever your verdict is on that: be it

3674

guilty of murder, not guilty of murder, but guilty of

manslaughter, you go on and consider quite separately count 2;

if he is guilty of that then you need not consider count 3. If he

is not guilty in your finding on count 2 then you have to go and

consider quite separately count 3."

The judge then attempted to relate those definitions to the issues in the case. He said:

"Now, members of the jury, I am moving now to review the

facts with you. They are for you and not for me. We have

been here quite a long time, there are quite a lot of facts. If I

leave out −− because I am not going to remind you of every

piece of evidence, or every fact −− evidence which you think is

important, you put it in and if I put in things which you think

are unimportant forget about them. Now, the central issue of

fact is this, are you satisfied so that you are sure that the

defendant started the fire by putting a lighter or a match to the

petrol or vapours of petrol? If yes, you are sure that he started

that fire by putting a lighter or match to the petrol or vapours of

the petrol, if the answer to that is yes, then it is fully open to

you to find him guilty of murder. If you are not sure that he

started the fire by a lighter or a match, then he is not guilty to

murder, because there is no sufficient evidence that he had an

intent in his mind to kill or to cause really serious bodily harm.

If you are sure that he poured, sprinkled or spread petrol on the

floor of the flat, then you have to consider manslaughter. Ask

yourselves whether in your judgment you are sure whether to

pour, sprinkle or spread petrol on the floor of a crack house

that it is unlawful, intentional and that sober and reasonable

people would inevitably realise it must subject others to at least

the risk of some harm, not necessarily serious harm. Was such

sprinkling, spreading or pouring of petrol a significant cause of

death? Even if you are not sure that the defendant was the

defendant who lit the petrol or petrol vapours, if you are

satisfied of those things then it is open to you to find him guilty

of manslaughter, namely, that he spread, poured, sprinkled

petrol on the floor of number 6 and in your judgment that is

unlawful and it is intentional, and sober and reasonable people

would inevitably realise must subject others to at least the risk

of some harm and such sprinkling, spreading or pouring of

petrol was a significant cause of death, even if you are not sure

that it was the defendant who lit the petrol. Those are all

questions of fact for you relating to the pouring of petrol, if you

are sure that he did sprinkle, spread or pour petrol."

3673

16. Taken on their own it seems to us that that was an adequate correction. However, there

was no issue but that if the jury was sure that the appellant had brought petrol into the house

and spread it into the hallway, he would be guilty of manslaughter. The repeated references

to what reasonable people would have realised, and the reference to whether such sprinkling

was a significant cause of death can hardly have clarified the issues in the mind of the jury.

It was unnecessary to repeat those references. It would have been more helpful to refer to the

facts and the way the prosecution relied upon them. The repetition of the mantra "reasonable

and sober people" was not calculated to assist the jury. All that was required was a clear

direction as to the different factual conclusions open to them on the evidence and their

consequences in law.

17. Not surprisingly, it appears that the jury remained unclear as to the distinction between

murder and manslaughter. After it had been sent out to consider its verdict, the jury returned

with a note enquiring whether the judge could redefine "murder and manslaughter, the intent

and the act". The judge attempted to do so. He said:

"Thank you, members of the jury, for your note enquiring to

redefine murder and manslaughter, the intend and the act. First

murder. There are two distinct and separate elements to the

crime of murder in the law of England. The first is an unlawful

and deliberate killing, or if you like, causing an unlawful and

deliberate killing. Unlawful means without any lawful

justification, such as self−defence −− no one suggests that

arises here. Deliberate means intentional, not accidental. So if

you cause or bring about an intentional and unlawful killing,

you have committed the first leg, the first element, in murder. I

should say that can be articulated −− it comes to the same thing

−− in a different way. The first element of murder is carrying

out an intentional and unlawful act which causes or

substantially causes death. That is two ways of saying the

same thing. To carry out a deliberate, intentional and unlawful

act, which causes or substantially causes death. That is the first

element.

In murder, the second element is that at the time of carrying out

such a deliberate and unlawful act which causes death, in the

mind of the person carrying out such a deliberate and unlawful

act, there is an intent either to kill, or to cause really serious

physical harm. I hope that is clear, that there are two elements

and both must be satisfied before anyone can be guilty of

murder.

Now, if you are satisfied of the first, namely the intention of

[an] unlawful act which causes death, but not the second,

namely an intent to kill or to cause really serious bodily harm,

then your verdict should be not guilty of murder, but guilty of

manslaughter. So manslaughter is the first element in murder,

3672

but not the second. In manslaughter, it does not have to be

proved that there is an intent to kill or to cause really serious

bodily harm, but in manslaughter there is the ingredient also

that it must be an act, in the first element, which sober and

reasonable people would inevitably realise must subject the

victim to at least the risk of some harm, but not necessarily

serious harm."

There may be a mistranscription in the words "Now, if you are satisfied of the first, namely

the intention of unlawful act which causes death", but in relation to the expression "So

manslaughter is the first element in murder, but not the second", that can only have confused

the jury. The further reference to the "sober and reasonable" man was unnecessary in the

context of the case. It made the overall effect of the summing−up unclear and obscured the

real issues, namely whether the jury was sure that the appellant had brought petrol into the

flat and ignited it, or whether it was only sure that he had brought petrol into the flat and

spread it but had not ignited it; or whether, thirdly, it remained unsure as to whether he had

brought petrol into the flat at all.

18. The Crown submits that by the end of those three attempts to direct the jury as to murder

and manslaughter it is not to be supposed that the jury can have been under any

misapprehension as to the possibilities. The addition of the unnecessary element appropriate

only to manslaughter cannot have confused the jury as to the essential issues.

19. Before we determine the crucial question as to whether the jury might have been left in

such a state of uncertainty and muddle as to the appropriate application of the law to the

issues so as to affect the safety of the verdict, it is necessary to look at the other ground in

relation to the character of the appellant. This formed the first ground of the appeal, which

was primarily related not so much to whether the evidence of the appellant's bad character

was admitted, but for what purpose, and as to the defects in the summing−up as to how the

jury should deploy that evidence.

20. The application to admit evidence of bad character related to five convictions of the

appellant. The first conviction was when he was much younger, in June 1998,

six−and−a−half years before this offence, to which he pleaded guilty. It was for having an

article with intent to damage or destroy property. The offence, contrary to the Criminal

Damage Act 1971, took place on 21 October 1977, and he was ordered to serve community

service for 180 hours. The second offence which the prosecution sought to adduce was for

burglary and theft from a dwelling, for which he was sentenced to imprisonment for nine

months. The third was for an offence of grievous bodily harm, to which he had pleaded not

guilty (although there was a dispute as to whether he had only disputed a charge under

section 18 of the Offences against the Person Act 1861); for that offence he was imprisoned

for 18 months. The third were offences of threats to kill and common assault (to which he

had pleaded not guilty), for which he was sent to prison for 18 months. The fourth was for

burglary and theft, for which he was sentenced to six months' imprisonment to run

concurrently with the sentences on the other offences to which he had pleaded guilty. The

fifth (to which he pleaded guilty) was for having an article with a blade, for which he was

3671

sent to prison for two months, and assisting an offender by impeding his apprehension (he

drove him off) for which he was sentenced to a concurrent sentence of six months.

21. In relation to the first conviction (having an article with intent to damage or destroy

property) there were agreed facts advanced. The appellant said that he was driving in a car

when someone else introduced into that car beer bottles containing petrol. Another person

had thrown them out of the car. The appellant expanded that account when he gave

evidence. The prosecution sought to adduce that conviction pursuant to section 101(1)(d) of

the Criminal Justice Act 2003, in other words that it was relevant to an important matter in

issue between the defence and the prosecution, namely whether the prosecution could prove

it was he and not Bull who had the possession of the petrol can.

22. For the purposes of this appeal a number of submissions were advanced as to the

propriety of introducing that conviction, having regard to the age of the appellant at the time,

the lapse of time between that offence and the offences the subject matter of the instant

appeal, and the fact that it was only one offence. But in the light of authority Mr

Lovell−Pank QC, sensibly, did not pursue that ground of the appeal, although he did not

abandon it.

23. The other offences, and the offence in relation to having possession of those bottles

containing petrol, were also introduced pursuant to section 101(1)(g) of the 2003 Act. They

were introduced because the appellant had attacked the character of Bull, introducing a

number of previous convictions of which he had been found guilty, as well as accusing him

of being responsible for introducing the petrol into that flat. The judge admitted all those

offences through both those gateways, and also ruled that it would not have such an adverse

effect on the fairness of the proceedings as to require him to exclude that evidence by virtue

of section 101(3). Absent his giving any reasons for his conclusion under section 101(3), we

naturally looked at the issue again, but we cannot say that it was outwith the range of

reasonable responses to the statutory question whether there was such an adverse effect on

the fairness of the proceedings that the judge was required to exclude the evidence (see

paragraph 15 of R v Hanson [2005] EWCA Crim 824). The judge did not have the benefit of

that decision but, in our judgment, Mr Lovell−Pank rightly recognised that the Crown was

entitled to introduce evidence of those previous offences. But the fact of the admission of

some offences of violence and some of dishonesty led to serious defects in the summing−up.

It is to those failures we now return.

24. The judge sought to direct the jury in relation to the convictions of the appellant in his

summing−up. He said:

"But dealing first of all with the relevance of the defendant's

convictions, the question you have got to ask yourselves is, do

any of the convictions of which you have heard throw light on

the issues in this case? Do they make the issues which you

have to try any clearer, knowing that he has these specific

convictions? You have to ask yourselves the question, do these

convictions show in any way that the defendant has a

propensity, a disposition, to commit any of the offences with

which he is charged and you have to consider very carefully

3670

the first conviction on 12th June 1998, at the Croydon Crown

Court, when he pleaded guilty to theft and was sentenced to

120 hours' community service and having an article with intent

to destroy or damage property. On 21st October 1997 he and

an associate were asked to assist somebody called Cray who

had run out of petrol in her boyfriend's car. He attended with a

petrol can, got the vehicle started, he then forced her into the

car and drove to Crystal Palace where he stole £3,500 worth of

stereo equipment from it. When her boyfriend discovered this

he went looking for the defendant and he was pointed out to

the police, stopped by the police and found to have two petrol

bombs, as they are called, in his vehicle. So you have to

consider that on what you know, in effect, that was possession

of not use of, he did not plead guilty to the use of petrol bombs,

but he pleaded guilty to having them in his car."

The judge returned to the issue of those previous convictions later in his summing−up when

dealing with the evidence of the appellant. He described the offence of causing grievous

bodily harm and then said:

"Does that throw any light on this matter? Does it give any

indication of a violent temperament? It is for you to say."

A little later the judge said:

"Well, I have already warned you, as carefully as I can,

members of the jury, that none of those convictions prove that

he committed this murder. The question is whether or not any

of them, or some of them, or all of them throw any light on the

disputed facts in this case, either by telling you anything about

his propensity and disposition for violence, or to dishonesty

and it is only if they throw light on these offences with which

he is charged on 7th January that they have any relevance at

all."

25. The defect in these directions, in our judgment, was in failing to direct the jury as to

which issues those disparate convictions went. It must be acknowledged in fairness to the

judge that he did not have the guidance now available in a number of decisions of this court,

but we have the benefit of those authorities: Hanson (to which we have already referred), R v

Highton [2005] EWCA Crim 1985, and R v Edwards [2005] EWCA Crim 1813. For the

3669

purposes of guiding a jury in relation to the relevance of the evidence of the bad character of

a defendant, the important statutory principle is that evidence is to be admitted in defined

circumstances which may assist the jury in reaching a conclusion. Evidence of bad character

is not admitted to prejudice the minds of the jury against the defendant. Part II of Chapter 1

of the 2003 Act establishes that principle by striking a balance between permitting a jury to

hear evidence which may be of assistance in determining guilt or innocence and assessing the

quality of the evidence, despite its obvious tendency to prejudice the minds of a jury, whilst

avoiding unnecessary prejudice (contrast section 101(1) with section 101(3)). In order to

achieve that aim judges must warn juries in the terms identified in Hanson at paragraph 18,

namely that undue reliance must not be placed on previous convictions. Evidence of bad

character cannot be used to bolster a weak case or to prejudice the minds of a jury against a

defendant. Further, in order to achieve that aim, as the court in Edwards teaches at paragraph

3, it must be explained to the jury why it has heard the evidence, and the ways in which it is

relevant. That crucial purpose cannot be achieved without both those two elements of the

directions given to the jury (see paragraph 3 in Edwards, and the summing−up of His Honour

Judge Mort cited at paragraph 77). Conversely, that purpose of avoiding prejudice is

undermined if no clear direction is given to the jury as to how to use the evidence of bad

character. Absent such guidance, the danger of prejudicing the minds of a jury against a

defendant merely because he has offended in the past remains and is not repressed. As

Highton explains (see paragraph 10), once evidence of bad character is admitted, it may go

not only to propensity but also to credit. In those circumstances the obligation to give careful

directions is all the more necessary (see paragraph 11 of Highton).

26. In the instant appeal some of the offences adduced went to propensity for violence. The

conviction for possession of the bottles containing petrol went also to the issue as to

possession of the petrol can. Other offences, particularly in relation to burglary, were

admitted pursuant to section 101(1)(g) because the appellant had attacked the character of

Bull and alleged that he was responsible for introducing the petrol into the hallway. Thus the

jury was entitled to assess the quality of the appellant's evidence in the light of the character

of the source of that evidence, as it had previously been entitled under the Criminal Evidence

Act 1898.

27. Hampered by lack of authority though the judge was, he failed to seek guidance from

counsel. The summing−up warned the jury on more than one occasion not to assume the

guilt of the appellant because of previous convictions, but the judge undermined those

warnings by his unfocused vituperation, referring on two occasions to the appellant's

"ruthless streak". The need to avoid unfair prejudice requires both counsel and the judge to

avoid inflammatory language. This judge did not. In so doing he encouraged the very

prejudice his warnings were designed to avoid.

28. That was not his only error. He sought, correctly, to distinguish in the first passage we

have cited between the burglary offences and the others, although he failed to mention that

the appellant had pleaded guilty to those offences. But there remained a serious flaw in these

directions. There was a live issue as to whether the appellant was guilty of manslaughter or

murder, notwithstanding that he had introduced petrol into the hallway, if the prosecution

case on that point was proved. The convictions for violence, let alone the other convictions,

could not assist on that important distinction between murder and manslaughter. Thus whilst

the convictions for violence might assist as to whether it was indeed the appellant who was

3668

responsible for introducing the petrol into the hallway, they could not assist as to whether he

ignited it or not. The jury should have been given a clear warning not to use the convictions

in a general way to resolve that issue. The resolution of that issue depended rather on their

view as to the expert evidence and also as to whether it was anything more than a fanciful

possibility that, having brought petrol into the house, having sprinkled it into the hallway, it

was a mere mischance that it ignited.

29. We conclude that the directions as to character were flawed. They prompted prejudice

in the language the judge adopted. They failed adequately to relate the particular offences to

relevant issues, and they failed to warn the jury that they could be of no assistance in

distinction between murder and manslaughter in the circumstances of this particular case. In

short, they failed to do that which every summing−up must do, namely guide the jury as to

how properly to deploy the evidence, whilst avoiding unnecessary prejudice.

30. We must now return to the effect of those defects. Had the misdirections as to murder

and manslaughter stood alone, we would not have concluded the verdicts were unsafe. By

the end the judge just about got them right. But when those defects are added to those in

relation to bad character, we take the view that the summing−up as a whole was so unfair as

to affect the safety of the verdicts. We acknowledge that the evidence against the appellant

was strong. Miss Joseph QC submitted that the jury cannot have convicted unless it was sure

that the appellant had introduced the petrol into the flat and had ignited it. But we cannot be

confident that the process by which the jury reached that conclusion remained unclouded by

the defects we have identified. Accordingly we allow this appeal.

31. The next question is as to disposition. We would propose, subject to submissions from

either side, to order a retrial.

32. MISS STANGOE: My Lord, that would be what I was seeking.

33. LORD JUSTICE MOSES: Mr Lovell−Pank?

34. MR LOVELL−PANK: My Lord, I do not think that there is any real argument that I

can advance properly to say that there should not be a retrial. I have thought about it.

35. LORD JUSTICE MOSES: Yes, quite. He is a young man.

36. MR LOVELL−PANK: I do not think I can advance a proper argument.

37. LORD JUSTICE MOSES: It is very difficult both for him and his family and for the

family of the victims. We shall quash both the counts on the indictment on which he was

convicted and order him to be retried on both, direct that a fresh indictment be preferred, and

that the defendant be arraigned on that fresh indictment within two months. Is there any

application for bail?

38. MR LOVELL−PANK: No, my Lord.

39. LORD JUSTICE MOSES: Will you need further representation orders?

3667

40. MR LOVELL−PANK: Yes, I think I will.

41. LORD JUSTICE MOSES: We will make them as they were before, for leading and

junior counsel and solicitors. We make the further order that the venue for the retrial should

be determined by the presiding judge of the circuit. There is no risk of the same judge trying

this again −− or any case, we gather. I do not think we need say more, except thank you to

both sides.

42. MR LOVELL−PANK: Thank you very much.

___________________

3666

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3665

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3628

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3627

Bundesgerichtshof judgment of 30th April 1953 – III ZR 204/52 (Hamm). BGH LM § 839 [Fg] BGB no 5

This case is first published in the German Law Archive courtesy of:

Translated German Cases and MaterialsUnder the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz

Translated by Mr Raymond Youngs, Southampton Institute1

Reasons:

The defendant asks first for a re-examination of the appeal court’s opinion that the police officers were

under an official duty to take action against the members of a gang of thieves, two of whom later

committed a break-in at the plaintiff’s. The appeal in law refers in this connection to the decision of the

11th June 1952 [reference omitted]. There is no ground to deviate from the principles set out in this

decision. Accordingly it cannot be doubted that the police officers were under a duty to take action

against those members of the gang who were known to them and who were committing crimes in their

area of operation. According to the indisputable facts of the case, it was known to H [one of the police

officers] that, amongst other things, N, who took part in the later break-in at the plaintiff’s, had committed

a burglary with two other people. However in his examination as a witness in the main proceedings

before theSchöffen Gericht (lay assessors court) because of this theft, he deliberately gave false

evidence in order to help N, who was in fact acquitted, as were the other perpetrators, for lack of

evidence. Shortly afterwards, K as well as H found out the names of all those involved in the burglary.

Both of them however still failed to bring a criminal charge. H and K therefore had definite knowledge of

the serious crimes committed by the gang and in particular of the co-perpetrators of the break-in later

committed at the plaintiff’s. This left them no room for discretion when deciding whether measures were

necessary against the perpetrators known to them. Criminal prosecution of law-breakers and preventing

crimes came within the scope of the official tasks of the two officers as police officers. Non-intervention

by them in the given situation could not be justified by any sort of objective or policing considerations.

Remaining inactive was unambiguously outside the boundary of discretion of “harmfulness”. A situation

of danger was present which made action by the police officers an unconditional duty.

The question was raised in the said decision of how the establishment of the boundaries of discretion of

“harmfulness” or of “excess” is to be treated in the individual case. Was it a pure issue of law and to be

undertaken by the court “in accordance with relevant considerations” [reference omitted]? Or was it a

question here of a “pure issue of discretion” to be decided by the appropriate authority, which the judge

cannot generally re-examine [reference omitted]? No final position needs to be taken here on this

question. Even if the establishment of the boundaries of discretion is in principle regarded as a “pure

issue of discretion” which cannot generally be re-examined judicially, the police officers involved were

still under a duty to take action. This is because we have a case here in which even a decision based on

discretion (which is not in principle subject to judicial re-examination) can still be subjected to such a re-

examination. The officers failure to act was not based on a weighing up of the arguments for and against

in accordance with objective considerations but was based exclusively on irrelevant and purely personal

grounds. They therefore have acted with such a high degree of impropriety that their behaviour – and

this needs no further explanation in the given circumstances – is irreconcilable with the requirements of

proper police administration and does not satisfy the needs of proper administration from any possible

point of view [references omitted].

�� !��" ��

3625

2. The further question of whether the official duty violated by the police officers by failing to act against

the gang also existed against the plaintiff as a “third party” in the sense of § 839 of the BGB, was

likewise correctly answered in the affirmative by the appeal court.

According to the case law of the Reichsgericht [reference omitted], which the Senate followed in

[reference omitted], the question of whether an official duty is owed by an official to a third party is to be

adjudged taking into consideration the officer’s official area of activity and the type of work which he is

carrying out. In this connection the main emphasis is on the purpose which the official duty is to serve. If

this is imposed on the officer in the interests of individual persons, everyone whose interests are,

according to the special nature of the official business, affected by it will be a third party. But if the

purpose of the official duty is only the maintenance of public order or the interest which the state has in

officials carrying out the responsibilities of their office properly, the official owes no duty to third parties,

even if there is indirect intrusion into the interests of third parties by the exercise of this duty. The task of

preventing crimes is not however owed by the police in the interest of the general public alone, but, as to

crimes which also intrude directly into the protected legal sphere of the individual, to the endangered

individuals as well. If the police do not properly fulfil this task, this not only violates a duty owed by the

police to the general public but also a duty owed by it to the endangered individuals.

The appeal in law refers in this connection to the decision of the Reichsgerichtin [reference omitted] in

which the duty imposed on the state prosecutor by § 152 (2) of the Criminal Procedure Code to

prosecute for crimes is described as a task serving exclusively the interests of the general public. It then

takes the view that in this respect the task of the police could not be regarded in any different way. But it

can be left open in this case whether and, if appropriate, how the area of responsibility of the state

prosecutor and of the police are to be judged differently in relation to the prosecution of crimes. This is

because the issue is not the duty of criminal prosecution incumbent on both authorities but the duty to

prevent crimes which falls on the police as a task arising directly from their duty of protection from

danger. For the state prosecutor a general direct responsibility to prevent crimes does not exist; at the

most it only arises insofar as the purpose of prosecution for crime is to prevent further crime. In this

respect therefore the reference to the decision of the Reichsgerichtmentioned above misses the point.

The appeal in law further takes the view, having regard to [references omitted], that the general duty of

protection by the police (and therefore also their duty to prevent crimes) is not a duty owed to third

parties but only to the general public. This would be so at least as long as no concrete relationship to a

definite third party has yet developed and the actual person harmed has not so far stood out from the

mass of people who could be harmed. In the present case, no such actual relationship to a particular

person harmed has yet been established. The possible crimes which lawbreakers known to police

officers might commit could have been directed against simply any inhabitant of the area concerned and

therefore against an entirely undetermined circle of people. The duty of the officers was only owed to the

general public and not the plaintiff as a member of a general public which should be protected. That

cannot however be agreed. A person who stands out from the mass of people at risk because he was

specially at risk is not the only person to be regarded as a third party to whom the police owe a duty to

prevent crimes, as was the case with the facts which formed the basis of the decision [reference

omitted]. The circle of third parties should be drawn much more widely. Thus theReichsgericht has,

amongst other things, regarded the fulfilment of the general protective duty of care (subject to the

prerequisite that exercise of public power is in question) as amongst the official duties which are owed

by an official to every third party [reference omitted] and confirmed that the official duty of a teacher

supervising a ball game is owed to anyone not participating who could come into the area of the game

[reference omitted]. Accordingly, the duty of an official to prevent improper use of service vehicles has

also been described by the Senate in the decision [reference omitted] as an official duty which exists

against every highway user with whom the vehicle could come in contact while it is being improperly

3624

used. Therefore the duty of the police to prevent crimes must also be regarded as an official duty which

is owed to anyone whose legal interests are endangered by a violation of this duty.

In the present case the following additional considerations also arise in this connection. All officials

entrusted with the exercise of public power have an official duty to refrain from any misuse of their office.

An official can make himself guilty of an improper exercise of office by omitting to act within the

framework of the public power entrusted to him. That is always the case when the official duty

unambiguously requires such action but the action does not take place because of completely irrelevant,

purely personal and reprehensible reasons. It needs no further discussion that the police officers H and

K have made themselves guilty in this respect of a misuse of office. However, the duty to refrain from

any misuse of office is owed by the officials to anyone who could be harmed by the misuse [references

omitted].

It cannot therefore be doubted that the official duty of the police officers to act as police against the gang

was also owed to the plaintiff.

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3623

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3622


St.GB 306Ziff. 1 Strafsenat Urt. Vom 22 February 1949 g.H.StS33/48

[excerpt from p. 317]

"It is correct that he assumed the duty as fire fighter leader voluntarily, and thereby obliged himself to take all necessary and appropriate measures to fight the fire. He thus violated a legal duty when not doing so, even though he could have."�

3615

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3593

PROTOCOLS

ADDITIONAL

TO THE GENEVA

CONVENTIONS

OF 12 AUGUST 1949

3592

Editor’s note

Upon completion of a procedure begun in 1989, a number of amendments to

Annex I to Protocol I (Regulations concerning identi�cation) were adopted

on 30 November 1993 and came into force on 1 March 1994.

�e present volume contains the amended text of Annex I.

Resolutions 17, 18 and 19 of the 1974-77 Diplomatic Conference and the

annexes thereto comprise or refer to Articles 3, 6, 7, 8, 9, 10 and 11 of the

original version of Annex I; these provisions are now Articles 4, 7, 8, 9, 10,

11 and 12 respectively.

Article 56 of Protocol I contains a reference to Article 16 of Annex I, which

is now Article 17.

3591

PROTOCOLS

ADDITIONAL

TO THE GENEVA

CONVENTIONS

OF 12 AUGUST 1949

3590

PROTOCOL ADDITIONAL TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949 83

PROTOCOL ADDITIONAL

TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949,

AND RELATING TO THE PROTECTION

OF VICTIMS OF NON-INTERNATIONAL ARMED CONFLICTS

(PROTOCOL II), OF 8 JUNE 1977

PREAMBLE

�e High Contracting Parties,

Recalling that the humanitarian principles enshrined in Article 3 common to

the Geneva Conventions of 12 August 1949, constitute the foundation of res-

pect for the human person in cases of armed con�ict not of an international

character,

Recalling furthermore that international instruments relating to human rights

o!er a basic protection to the human person,

Emphasizing the need to ensure a better protection for the victims of those

armed con�icts,

Recalling that, in cases not covered by the law in force, the human person

remains under the protection of the principles of humanity and the dictates

of the public conscience,

Have agreed on the following:

3589

84 ADDITIONAL PROTOCOL II OF 1977

PART I

SCOPE OF THIS PROTOCOL

Article 1 — Material !eld of application

1. "is Protocol, which develops and supplements Article 3 common

to the Geneva Conventions of 12 August 1949 without modifying its

existing conditions of applications, shall apply to all armed con�icts

which are not covered by Article 1 of the Protocol Additional to the Ge-

neva Conventions of 12 August 1949, and relating to the Protection of

Victims of International Armed Con�icts (Protocol I) and which take

place in the territory of a High Contracting Party between its armed

forces and dissident armed forces or other organized armed groups

which, under responsible command, exercise such control over a part

of its territory as to enable them to carry out sustained and concerted

military operations and to implement this Protocol.

2. "is Protocol shall not apply to situations of internal disturbances and

tensions, such as riots, isolated and sporadic acts of violence and other

acts of a similar nature, as not being armed con�icts.

Article 2 — Personal !eld of application

1. "is Protocol shall be applied without any adverse distinction founded

on race, colour, sex, language, religion or belief, political or other opin-

ion, national or social origin, wealth, birth or other status, or on any

other similar criteria (hereina#er referred to as “adverse distinction”)

to all persons a!ected by an armed con�ict as de$ned in Article 1.

2. At the end of the armed con�ict, all the persons who have been de-

prived of their liberty or whose liberty has been restricted for reasons

related to such con�ict, as well as those deprived of their liberty or

whose liberty is restricted a#er the con�ict for the same reasons, shall

enjoy the protection of Articles 5 and 6 until the end of such depriva-

tion or restriction of liberty.

Article 3 — Non-intervention

1. Nothing in this Protocol shall be invoked for the purpose of a!ecting

the sovereignty of a State or the responsibility of the government, by all

legitimate means, to maintain or re-establish law and order in the State

or to defend the national unity and territorial integrity of the State.

2. Nothing in this Protocol shall be invoked as a justi$cation for interven-

ing, directly or indirectly, for any reason whatever, in the armed con-

3588


�ict or in the internal or external a!airs of the High Contracting Party

in the territory of which that con�ict occurs.

PART II

HUMANE TREATMENT

Article 4 — Fundamental guarantees

1. All persons who do not take a direct part or who have ceased to take

part in hostilities, whether or not their liberty has been restricted, are

entitled to respect for their person, honour and convictions and reli-

gious practices. "ey shall in all circumstances be treated humanely,

without any adverse distinction. It is prohibited to order that there shall

be no survivors.

2. Without prejudice to the generality of the foregoing, the following acts

against the persons referred to in paragraph 1 are and shall remain pro-

hibited at any time and in any place whatsoever:

a) violence to the life, health and physical or mental well-being of per-

sons, in particular murder as well as cruel treatment such as torture,

mutilation or any form of corporal punishment;

b) collective punishments;

c) taking of hostages;

d) acts of terrorism;

e) outrages upon personal dignity, in particular humiliating and de-

grading treatment, rape, enforced prostitution and any form of in-

decent assault;

f) slavery and the slave trade in all their forms;

g) pillage;

h) threats to commit any of the foregoing acts.

3. Children shall be provided with the care and aid they require, and in

particular:

a) they shall receive an education, including religious and moral edu-

cation, in keeping with the wishes of their parents, or in the absence

of parents, of those responsible for their care;

b) all appropriate steps shall be taken to facilitate the reunion of fami-

lies temporarily separated;

c) children who have not attained the age of $#een years shall neither

be recruited in the armed forces or groups nor allowed to take part

in hostilities;

3587


d) the special protection provided by this Article to children who have

not attained the age of $#een years shall remain applicable to them

if they take a direct part in hostilities despite the provisions of sub-

paragraph c) and are captured;

e) measures shall be taken, if necessary, and whenever possible with

the consent of their parents or persons who by law or custom are

primarily responsible for their care, to remove children temporar-

ily from the area in which hostilities are taking place to a safer area

within the country and ensure that they are accompanied by per-

sons responsible for their safety and well-being.

Article 5 — Persons whose liberty has been restricted

1. In addition to the provisions of Article 4, the following provisions shall

be respected as a minimum with regard to persons deprived of their

liberty for reasons related to the armed con�ict, whether they are in-

terned or detained:

a) the wounded and the sick shall be treated in accordance with Ar-

ticle 7;

b) the persons referred to in this paragraph shall, to the same extent as

the local civilian population, be provided with food and drinking

water and be a!orded safeguards as regards health and hygiene and

protection against the rigours of the climate and the dangers of the

armed con�ict;

c) they shall be allowed to receive individual or collective relief;

d) they shall be allowed to practise their religion and, if requested and

appropriate, to receive spiritual assistance from persons, such as

chaplains, performing religious functions;

e) they shall, if made to work, have the bene$t of working conditions and

safeguards similar to those enjoyed by the local civilian population.

2. "ose who are responsible for the internment or detention of the per-

sons referred to in paragraph 1 shall also, within the limits of their

capabilities, respect the following provisions relating to such persons:

a) except when men and women of a family are accommodated to-

gether, women shall be held in quarters separated from those of

men and shall be under the immediate supervision of women;

b) they shall be allowed to send and receive letters and cards, the

number of which may be limited by competent authority if it deems

necessary;

c) places of internment and detention shall not be located close to the

combat zone. "e persons referred to in paragraph 1 shall be evacu-

3586


ated when the places where they are interned or detained become par-

ticularly exposed to danger arising out of the armed con�ict, if their

evacuation can be carried out under adequate conditions of safety;

d) they shall have the bene$t of medical examinations;

e) their physical or mental health and integrity shall not be endangered

by any unjusti$ed act or omission. Accordingly, it is prohibited to

subject the persons described in this Article to any medical procedure

which is not indicated by the state of health of the person concerned,

and which is not consistent with the generally accepted medical stan-

dards applied to free persons under similar medical circumstances.

3. Persons who are not covered by paragraph 1 but whose liberty has been

restricted in any way whatsoever for reasons related to the armed con-

�ict shall be treated humanely in accordance with Article 4 and with

paragraphs 1 a), c) and d), and 2 b) of this Article.

4. If it is decided to release persons deprived of their liberty, necessary

measures to ensure their safety shall be taken by those so deciding.

Article 6 — Penal prosecutions

1. "is Article applies to the prosecution and punishment of criminal of-

fences related to the armed con�ict.

2. No sentence shall be passed and no penalty shall be executed on a per-

son found guilty of an o!ence except pursuant to a conviction pro-

nounced by a court o!ering the essential guarantees of independence

and impartiality. In particular:

a) the procedure shall provide for an accused to be informed without

delay of the particulars of the o!ence alleged against him and shall

a!ord the accused before and during his trial all necessary rights

and means of defence;

b) no one shall be convicted of an o!ence except on the basis of indi-

vidual penal responsibility;

c) no one shall be held guilty of any criminal o!ence on account of any

act or omission which did not constitute a criminal o!ence, under

the law, at the time when it was committed; nor shall a heavier pen-

alty be imposed than that which was applicable at the time when

the criminal o!ence was committed; if, a#er the commission of the

o!ence, provision is made by law for the imposition of a lighter pen-

alty, the o!ender shall bene$t thereby;

d) anyone charged with an o!ence is presumed innocent until proved

guilty according to law;

3585


e) anyone charged with an o!ence shall have the right to be tried in his

presence;

f) no one shall be compelled to testify against himself or to confess

guilt.

3. A convicted person shall be advised on conviction of his judicial

and other remedies and of the time-limits within which they may be

exercised.

4. "e death penalty shall not be pronounced on persons who were under

the age of eighteen years at the time of the o!ence and shall not be car-

ried out on pregnant women or mothers of young children.

5. At the end of hostilities, the authorities in power shall endeavour to

grant the broadest possible amnesty to persons who have participated

in the armed con�ict, or those deprived of their liberty for reasons re-

lated to the armed con�ict, whether they are interned or detained.

PART III

WOUNDED, SICK AND SHIPWRECKED

Article 7 — Protection and care

1. All the wounded, sick and shipwrecked, whether or not they have taken

part in the armed con�ict, shall be respected and protected.

2. In all circumstances they shall be treated humanely and shall receive, to

the fullest extent practicable and with the least possible delay, the medi-

cal care and attention required by their condition. "ere shall be no dis-

tinction among them founded on any grounds other than medical ones.

Article 8 — Search

Whenever circumstances permit, and particularly a#er an engagement, all

possible measures shall be taken, without delay, to search for and collect

the wounded, sick and shipwrecked, to protect them against pillage and ill-

treatment, to ensure their adequate care, and to search for the dead, prevent

their being despoiled, and decently dispose of them.

Article 9 — Protection of medical and religious personnel

1. Medical and religious personnel shall be respected and protected and

shall be granted all available help for the performance of their duties.

"ey shall not be compelled to carry out tasks which are not compatible

with their humanitarian mission.

3584


2. In the performance of their duties medical personnel may not be re-

quired to give priority to any person except on medical grounds.

Article 10 — General protection of medical duties

1. Under no circumstances shall any person be punished for having car-

ried out medical activities compatible with medical ethics, regardless of

the person bene$ting therefrom.

2. Persons engaged in medical activities shall neither be compelled to per-

form acts or to carry out work contrary to, nor be compelled to refrain

from acts required by, the rules of medical ethics or other rules de-

signed for the bene$t of the wounded and sick, or this Protocol.

3. "e professional obligations of persons engaged in medical activities

regarding information which they may acquire concerning the wound-

ed and sick under their care shall, subject to national law, be respected.

4. Subject to national law, no person engaged in medical activities may be

penalized in any way for refusing or failing to give information con-

cerning the wounded and sick who are, or who have been, under his

care.

Article 11 — Protection of medical units and transports

1. Medical units and transports shall be respected and protected at all

times and shall not be the object of attack.

2. "e protection to which medical units and transports are entitled shall

not cease unless they are used to commit hostile acts, outside their hu-

manitarian function. Protection may, however, cease only a#er a warn-

ing has been given setting, whenever appropriate, a reasonable time-

limit, and a#er such warning has remained unheeded.

Article 12 — "e distinctive emblem

Under the direction of the competent authority concerned, the distinctive

emblem of the red cross, red crescent or red lion and sun on a white ground

shall be displayed by medical and religious personnel and medical units,

and on medical transports. It shall be respected in all circumstances. It shall

not be used improperly.

3583


PART IV

CIVILIAN POPULATION

Article 13 — Protection of the civilian population

1. "e civilian population and individual civilians shall enjoy general

protection against the dangers arising from military operations. To

give e!ect to this protection, the following rules shall be observed in all

circumstances.

2. "e civilian population as such, as well as individual civilians, shall not

be the object of attack. Acts or threats of violence the primary purpose of

which is to spread terror among the civilian population are prohibited.

3. Civilians shall enjoy the protection a!orded by this Part, unless and for

such time as they take a direct part in hostilities.

Article 14 — Protection of objects indispensable to the survival of

the civilian population

Starvation of civilians as a method of combat is prohibited. It is therefore

prohibited to attack, destroy, remove or render useless, for that purpose, ob-

jects indispensable to the survival of the civilian population, such as food-

stu!s, agricultural areas for the production of foodstu!s, crops, livestock,

drinking water installations and supplies and irrigation works.

Article 15 — Protection of works and installations containing

dangerous forces

Works or installations containing dangerous forces, namely dams, dykes

and nuclear electrical generating stations, shall not be made the object of

attack, even where these objects are military objectives, if such attack may

cause the release of dangerous forces and consequent severe losses among

the civilian population.

Article 16 — Protection of cultural objects and of places of worship

Without prejudice to the provisions of the Hague Convention for the Protec-

tion of Cultural Property in the Event of Armed Con�ict of 14 May 1954, it

is prohibited to commit any acts of hostility directed against historic monu-

ments, works of art or places of worship which constitute the cultural or spir-

itual heritage of peoples, and to use them in support of the military e!ort.

3582


Article 17 — Prohibition of forced movement of civilians

1. "e displacement of the civilian population shall not be ordered for rea-

sons related to the con�ict unless the security of the civilians involved

or imperative military reasons so demand. Should such displacements

have to be carried out, all possible measures shall be taken in order that

the civilian population may be received under satisfactory conditions

of shelter, hygiene, health, safety and nutrition.

2. Civilians shall not be compelled to leave their own territory for reasons

connected with the con�ict.

Article 18 — Relief societies and relief actions

1. Relief societies located in the territory of the High Contracting Party,

such as Red Cross (Red Crescent, Red Lion and Sun) organizations,

may o!er their services for the performance of their traditional func-

tions in relation to the victims of the armed con�ict. "e civilian popu-

lation may, even on its own initiative, o!er to collect and care for the

wounded, sick and shipwrecked.

2. If the civilian population is su!ering undue hardship owing to a lack

of the supplies essential for its survival, such as foodstu!s and medical

supplies, relief actions for the civilian population which are of an ex-

clusively humanitarian and impartial nature and which are conducted

without any adverse distinction shall be undertaken subject to the con-

sent of the High Contracting Party concerned.

PART V

FINAL PROVISIONS

Article 19 — Dissemination

"is Protocol shall be disseminated as widely as possible.

Article 20 — Signature

"is Protocol shall be open for signature by the Parties to the Conventions

six months a#er the signing of the Final Act and will remain open for a pe-

riod of twelve months.

3581


Article 21 — Rati!cation

"is Protocol shall be rati$ed as soon as possible. "e instruments of rati$-

cation shall be deposited with the Swiss Federal Council, depositary of the

Conventions.

Article 22 — Accession

"is Protocol shall be open for accession by any Party to the Conventions

which has not signed it. "e instruments of accession shall be deposited with

the depositary.

Article 23 — Entry into force

1. "is Protocol shall enter into force six months a#er two instruments of

rati$cation or accession have been deposited.

2. For each Party to the Conventions therea#er ratifying or acceding to

this Protocol, it shall enter into force six months a#er the deposit by

such Party of its instrument of rati$cation or accession.

Article 24 — Amendment

1. Any High Contracting Party may propose amendments to this Protocol.

"e text of any proposed amendment shall be communicated to the de-

positary which shall decide, a#er consultation with all the High Contract-

ing Parties and the International Committee of the Red Cross, whether a

conference should be convened to consider the proposed amendment.

2. "e depositary shall invite to that conference all the High Contracting

Parties as well as the Parties to the Conventions, whether or not they

are signatories of this Protocol.

Article 25 — Denunciation

1. In case a High Contracting Party should denounce this Protocol, the

denunciation shall only take e!ect six months a#er receipt of the in-

strument of denunciation. If, however, on the expiry of six months, the

denouncing Party is engaged in the situation referred to in Article 1, the

denunciation shall not take e!ect before the end of the armed con�ict.

Persons who have been deprived of liberty, or whose liberty has been

restricted, for reasons related to the con�ict shall nevertheless continue

to bene$t from the provisions of this Protocol until their $nal release.

2. "e denunciation shall be noti$ed in writing to the depositary, which

shall transmit it to all the High Contracting Parties.

3580


Article 26 — Noti!cations

"e depositary shall inform the High Contracting Parties as well as the Parties

to the Conventions, whether or not they are signatories of this Protocol, of:

a) signatures a&xed to this Protocol and the deposit of instruments of

rati$cation and accession under Articles 21 and 22;

b) the date of entry into force of this Protocol under Article 23; and

c) communications and declarations received under Article 24.

Article 27 — Registration

1. A#er its entry into force, this Protocol shall be transmitted by the deposi-

tary to the Secretariat of the United Nations for registration and publica-

tion, in accordance with Article 102 of the Charter of the United Nations.

2. "e depositary shall also inform the Secretariat of the United Nations

of all rati$cations and accessions received by it with respect to this

Protocol.

Article 28 — Authentic texts

"e original of this Protocol, of which the Arabic, Chinese, English, French,

Russian and Spanish texts are equally authentic, shall be deposited with the

depositary, which shall transmit certi$ed true copies thereof to all the Par-

ties to the Conventions.

3579

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3578

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3550

International Convention on the Elimination of All Forms of Racial Discrimination

Adopted and opened for signature and ratification by General Assembly resolution 2106 (XX) of 21 December 1965

entry into force 4 January 1969, in accordance with Article 19

The States Parties to this Convention, Considering that the Charter of the United Nations is based on the principles of the dignity and equality inherent in all human beings, and that all Member States have pledged themselves to take joint and separate action, in co-operation with the Organization, for the achievement of one of the purposes of the United Nations which is to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion, Considering that the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set out therein, without distinction of any kind, in particular as to race, colour or national origin, Considering that all human beings are equal before the law and are entitled to equal protection of the law against any discrimination and against any incitement to discrimination, Considering that the United Nations has condemned colonialism and all practices of segregation and discrimination associated therewith, in whatever form and wherever they exist, and that the Declaration on the Granting of Independence to Colonial Countries and Peoples of 14 December 1960 (General Assembly resolution 1514 (XV)) has affirmed and solemnly proclaimed the necessity of bringing them to a speedy and unconditional end, Considering that the United Nations Declaration on the Elimination of All Forms of Racial Discrimination of 20 November 1963 (General Assembly resolution 1904 (XVIII)) solemnly affirms the necessity of speedily eliminating racial discrimination throughout the world in all its forms and manifestations and of securing understanding of and respect for the dignity of the human person, Convinced that any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination, in theory or in practice, anywhere, Reaffirming that discrimination between human beings on the grounds of race, colour or ethnic origin is an obstacle to friendly and peaceful relations among nations and is capable of disturbing peace and security among peoples and the harmony of persons living side by side even within one and the same State, Convinced that the existence of racial barriers is repugnant to the ideals of any human society, Alarmed by manifestations of racial discrimination still in evidence in some areas of the world and by governmental policies based on racial superiority or hatred, such as policies of apartheid, segregation or separation, Resolved to adopt all necessary measures for speedily eliminating racial discrimination in all its forms and manifestations, and to prevent and combat racist doctrines and practices in order to promote understanding between races and to build an international community free from all forms of racial segregation and racial discrimination, Bearing in mind the Convention concerning Discrimination in respect of Employment and Occupation adopted by the International Labour Organisation in 1958, and the Convention against Discrimination in Education adopted by the United Nations Educational, Scientific and Cultural Organization in 1960,

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Desiring to implement the principles embodied in the United Nations Declaration on the Elimination of Al l Forms of Racial Discrimination and to secure the earliest adoption of practical measures to that end, Have agreed as follows:

PART I Article 1 1. In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. 2. This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens. 3. Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality. 4. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved. Article 2 1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: (a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to en sure that all public authorities and public institutions, national and local, shall act in conformity with this obligation; (b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations; (c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists; (d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization; (e) Each State Party undertakes to encourage, where appropriate, integrationist multiracial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division. 2. States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case en tail as a con sequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.

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Article 3 States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction. Article 4 States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia: (a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof; (b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law; (c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination. Article 5 In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (a) The right to equal treatment before the tribunals and all other organs administering justice; (b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution; (c) Political rights, in particular the right to participate in elections-to vote and to stand for election-on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service; (d) Other civil rights, in particular: (i) The right to freedom of movement and residence within the border of the State; (ii) The right to leave any country, including one's own, and to return to one's country; (iii) The right to nationality; (iv) The right to marriage and choice of spouse; (v) The right to own property alone as well as in association with others; (vi) The right to inherit; (vii) The right to freedom of thought, conscience and religion;

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(viii) The right to freedom of opinion and expression; (ix) The right to freedom of peaceful assembly and association; (e) Economic, social and cultural rights, in particular: (i) The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration; (ii) The right to form and join trade unions; (iii) The right to housing; (iv) The right to public health, medical care, social security and social services; (v) The right to education and training; (vi) The right to equal participation in cultural activities; (f) The right of access to any place or service intended for use by the general public, such as transport hotels, restaurants, cafes, theatres and parks. Article 6 States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination. Article 7 States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention.

PART II Article 8 1. There shall be established a Committee on the Elimination of Racial Discrimination (hereinafter referred to as the Committee) consisting of eighteen experts of high moral standing and acknowledged impartiality elected by States Parties from among their nationals, who shall serve in their personal capacity, consideration being given to equitable geographical distribution and to the representation of the different forms of civilization as well as of the principal legal systems. 2. The members of the Committee shall be elected by secret ballot from a list of persons nominated by the States Parties. Each State Party may nominate one person from among its own nationals. 3. The initial election shall be held six months after the date of the entry into force of this Convention. At least three months before the date of each election the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within two months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties which have nominated them, and shall submit it to the States Parties.

3546

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4. Elections of the members of the Committee shall be held at a meeting of States Parties convened by the Secretary-General at United Nations Headquarters. At that meeting, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be nominees who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting. 5. (a) The members of the Committee shall be elected for a term of four years. However, the terms of nine of the members elected at the first election shall expire at the end of two years; immediately after the first election the names of these nine members shall be chosen by lot by the Chairman of the Committee; (b) For the filling of casual vacancies, the State Party whose expert has ceased to function as a member of the Committee shall appoint another expert from among its nationals, subject to the approval of the Committee. 6. States Parties shall be responsible for the expenses of the members of the Committee while they are in performance of Committee duties. Article 9 1. States Parties undertake to submit to the Secretary-General of the United Nations, for consideration by the Committee, a report on the legislative, judicial, administrative or other measures which they have adopted and which give effect to the provisions of this Convention: (a) within one year after the entry into force of the Convention for the State concerned; and (b) thereafter every two years and whenever the Committee so requests. The Committee may request further information from the States Parties. 2. The Committee shall report annually, through the Secretary General, to the General Assembly of the United Nations on its activities and may make suggestions and general recommendations based on the examination of the reports and information received from the States Parties. Such suggestions and general recommendations shall be reported to the General Assembly together with comments, if any, from States Parties. Article 10 1. The Committee shall adopt its own rules of procedure. 2. The Committee shall elect its officers for a term of two years. 3. The secretariat of the Committee shall be provided by the Secretary General of the United Nations. 4. The meetings of the Committee shall normally be held at United Nations Headquarters. Article 11 1. If a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may bring the matter to the attention of the Committee. The Committee shall then transmit the communication to the State Party concerned. Within three months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State. 2. If the matter is not adjusted to the satisfaction of both parties, either by bilateral negotiations or by any other procedure open to them, within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter again to the Committee by notifying the Committee and also the other State. 3. The Committee shall deal with a matter referred to it in accordance with paragraph 2 of this article after it has ascertained that all available domestic remedies have been invoked and exhausted in the

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case, in conformity with the generally recognized principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged. 4. In any matter referred to it, the Committee may call upon the States Parties concerned to supply any other relevant information. 5. When any matter arising out of this article is being considered by the Committee, the States Parties concerned shall be entitled to send a representative to take part in the proceedings of the Committee, without voting rights, while the matter is under consideration. Article 12 1. (a) After the Committee has obtained and collated all the information it deems necessary, the Chairman shall appoint an ad hoc Conciliation Commission (hereinafter referred to as the Commission) comprising five persons who may or may not be members of the Committee. The members of the Commission shall be appointed with the unanimous consent of the parties to the dispute, and its good offices shall be made available to the States concerned with a view to an amicable solution of the matter on the basis of respect for this Convention; (b) If the States parties to the dispute fail to reach agreement within three months on all or part of the composition of the Commission, the members of the Commission not agreed upon by the States parties to the dispute shall be elected by secret ballot by a two-thirds majority vote of the Committee from among its own members. 2. The members of the Commission shall serve in their personal capacity. They shall not be nationals of the States parties to the dispute or of a State not Party to this Convention. 3. The Commission shall elect its own Chairman and adopt its own rules of procedure. 4. The meetings of the Commission shall normally be held at United Nations Headquarters or at any other convenient place as determined by the Commission. 5. The secretariat provided in accordance with article 10, paragraph 3, of this Convention shall also service the Commission whenever a dispute among States Parties brings the Commission into being. 6. The States parties to the dispute shall share equally all the expenses of the members of the Commission in accordance with estimates to be provided by the Secretary-General of the United Nations. 7. The Secretary-General shall be empowered to pay the expenses of the members of the Commission, if necessary, before reimbursement by the States parties to the dispute in accordance with paragraph 6 of this article. 8. The information obtained and collated by the Committee shall be made available to the Commission, and the Commission may call upon the States concerned to supply any other relevant information. Article 13 1. When the Commission has fully considered the matter, it shall prepare and submit to the Chairman of the Committee a report embodying its findings on all questions of fact relevant to the issue between the parties and containing such recommendations as it may think proper for the amicable solution of the dispute. 2. The Chairman of the Committee shall communicate the report of the Commission to each of the States parties to the dispute. These States shall, within three months, inform the Chairman of the Committee whether or not they accept the recommendations contained in the report of the Commission. 3. After the period provided for in paragraph 2 of this article, the Chairman of the Committee shall communicate the report of the Commission and the declarations of the States Parties concerned to the other States Parties to this Convention. Article 14

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1. A State Party may at any time declare that it recognizes the competence of the Committee to receive and consider communications from individuals or groups of individuals within its jurisdiction claiming to be victims of a violation by that State Party of any of the rights set forth in this Convention. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration. 2. Any State Party which makes a declaration as provided for in paragraph I of this article may establish or indicate a body within its national legal order which shall be competent to receive and consider petitions from individuals and groups of individuals within its jurisdiction who claim to be victims of a violation of any of the rights set forth in this Convention and who have exhausted other available local remedies. 3. A declaration made in accordance with paragraph 1 of this article and the name of any body established or indicated in accordance with paragraph 2 of this article shall be deposited by the State Party concerned with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General, but such a withdrawal shall not affect communications pending before the Committee. 4. A register of petitions shall be kept by the body established or indicated in accordance with paragraph 2 of this article, and certified copies of the register shall be filed annually through appropriate channels with the Secretary-General on the understanding that the contents shall not be publicly disclosed. 5. In the event of failure to obtain satisfaction from the body established or indicated in accordance with paragraph 2 of this article, the petitioner shall have the right to communicate the matter to the Committee within six months. 6. (a) The Committee shall confidentially bring any communication referred to it to the attention of the State Party alleged to be violating any provision of this Convention, but the identity of the individual or groups of individuals concerned shall not be revealed without his or their express consent. The Committee shall not receive anonymous communications; (b) Within three months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State. 7. (a) The Committee shall consider communications in the light of all information made available to it by the State Party concerned and by the petitioner. The Committee shall not consider any communication from a petitioner unless it has ascertained that the petitioner has exhausted all available domestic remedies. However, this shall not be the rule where the application of the remedies is unreasonably prolonged; (b) The Committee shall forward its suggestions and recommendations, if any, to the State Party concerned and to the petitioner. 8. The Committee shall include in its annual report a summary of such communications and, where appropriate, a summary of the explanations and statements of the States Parties concerned and of its own suggestions and recommendations. 9. The Committee shall be competent to exercise the functions provided for in this article only when at least ten States Parties to this Convention are bound by declarations in accordance with paragraph I of this article. Article 15 1 . Pending the achievement of the objectives of the Declaration on the Granting of Independence to Colonial Countries and Peoples, contained in General Assembly resolution 1514 (XV) of 14 December 1960, the provisions of this Convention shall in no way limit the right of petition granted to these peoples by other international instruments or by the United Nations and its specialized agencies. 2.

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(a) The Committee established under article 8, paragraph 1, of this Convention shall receive copies of the petitions from, and submit expressions of opinion and recommendations on these petitions to, the bodies of the United Nations which deal with matters directly related to the principles and objectives of this Convention in their consideration of petitions from the inhabitants of Trust and Non-Self-Governing Territories and all other territories to which General Assembly resolution 1514 (XV) applies, relating to matters covered by this Convention which are before these bodies; (b) The Committee shall receive from the competent bodies of the United Nations copies of the reports concerning the legislative, judicial, administrative or other measures directly related to the principles and objectives of this Convention applied by the administering Powers within the Territories mentioned in subparagraph (a) of this paragraph, and shall express opinions and make recommendations to these bodies. 3. The Committee shall include in its report to the General Assembly a summary of the petitions and reports it has received from United Nations bodies, and the expressions of opinion and recommendations of the Committee relating to the said petitions and reports. 4. The Committee shall request from the Secretary-General of the United Nations all information relevant to the objectives of this Convention and available to him regarding the Territories mentioned in paragraph 2 (a) of this article. Article 16 The provisions of this Convention concerning the settlement of disputes or complaints shall be applied without prejudice to other procedures for settling disputes or complaints in the field of discrimination laid down in the constituent instruments of, or conventions adopted by, the United Nations and its specialized agencies, and shall not prevent the States Parties from having recourse to other procedures for settling a dispute in accordance with general or special international agreements in force between them.

PART III Article 17 1. This Convention is open for signature by any State Member of the United Nations or member of any of its specialized agencies, by any State Party to the Statute of the International Court of Justice, and by any other State which has been invited by the General Assembly of the United Nations to become a Party to this Convention. 2. This Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations. Article 18 1. This Convention shall be open to accession by any State referred to in article 17, paragraph 1, of the Convention. 2. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations. Article 19 1. This Convention shall enter into force on the thirtieth day after the date of the deposit with the Secretary-General of the United Nations of the twenty-seventh instrument of ratification or instrument of accession. 2. For each State ratifying this Convention or acceding to it after the deposit of the twenty-seventh instrument of ratification or instrument of accession, the Convention shall enter into force on the thirtieth day after the date of the deposit of its own instrument of ratification or instrument of accession. Article 20

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1. The Secretary-General of the United Nations shall receive and circulate to all States which are or may become Parties to this Convention reservations made by States at the time of ratification or accession. Any State which objects to the reservation shall, within a period of ninety days from the date of the said communication, notify the Secretary-General that it does not accept it. 2. A reservation incompatible with the object and purpose of this Convention shall not be permitted, nor shall a reservation the effect of which would inhibit the operation of any of the bodies established by this Convention be allowed. A reservation shall be considered incompatible or inhibitive if at least two thirds of the States Parties to this Convention object to it. 3. Reservations may be withdrawn at any time by notification to this effect addressed to the Secretary-General. Such notification shall take effect on the date on which it is received. Article 21 A State Party may denounce this Convention by written notification to the Secretary-General of the United Nations. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary General. Article 22 Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement. Article 23 1. A request for the revision of this Convention may be made at any time by any State Party by means of a notification in writing addressed to the Secretary-General of the United Nations. 2. The General Assembly of the United Nations shall decide upon the steps, if any, to be taken in respect of such a request. Article 24 The Secretary-General of the United Nations shall inform all States referred to in article 17, paragraph 1, of this Convention of the following particulars: (a) Signatures, ratifications and accessions under articles 17 and 18; (b) The date of entry into force of this Convention under article 19; (c) Communications and declarations received under articles 14, 20 and 23; (d) Denunciations under article 21. Article 25 1. This Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations. 2. The Secretary-General of the United Nations shall transmit certified copies of this Convention to all States belonging to any of the categories mentioned in article 17, paragraph 1, of the Convention.

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3516

European Convention on Human Rights

as amended by Protocols Nos. 11 and 14

supplemented by Protocols Nos. 1, 4, 6, 7, 12 and 13

3515

3

The text of the Convention is presented as amended by the provisions of Protocol No. 14 (CETS no. 194) as from its entry into force on 1 June 2010. The text of the Convention had previously been amended according to the provisions of Protocol No. 3 (ETS no. 45), which entered into force on 21 September 1970, of Protocol No. 5 (ETS no. 55), which entered into force on 20 December 1971, and of Protocol No. 8 (ETS no. 118), which entered into force on 1 January 1990, and comprised also the text of Protocol No. 2 (ETS no. 44) which, in accordance with Article 5 § 3 thereof, had been an integral part of the Convention since its entry into force on 21 September 1970. All provisions which had been amended or added by these Protocols were replaced by Protocol No. 11 (ETS no. 155), as from the date of its entry into force on 1 November 1998. As from that date, Protocol No. 9 (ETS no. 140), which entered into force on 1 October 1994, was repealed and Protoco No. 10 (ETS no. 146) lost its purpose.

The current state of signatures and rati!cations of the Convention and its Protocols as well as the complete list of declarations and reservations are available at www.conventions.coe.int.

Only the English and French versions of the Convention are authentic.

European Court of Human Rights

Council of Europe

F-67075 Strasbourg cedex

www.echr.coe.int

CONTENTS

Convention for the Protection of Human Rights and Fundamental Freedoms ............................................5

Protocol ......................................................................31

Protocol No. 4.............................................................34

Protocol No. 6.............................................................38

Protocol No. 7.............................................................42

Protocol No. 12...........................................................48

Protocol No. 13...........................................................52

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Convention for the Protection of Human Rights

and Fundamental FreedomsRome, 4.XI.1950

THE GOVERNMENTS SIGNATORY HERETO, being members of the Council of Europe,

Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10th December 1948;

Considering that this Declaration aims at securing the universal and effective recognition and observance of the Rights therein declared;

Considering that the aim of the Council of Europe is the achievement of greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of human rights and fundamental freedoms;

Reaf!rming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend;

Being resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the !rst steps for the collective enforcement of certain of the rights stated in the Universal Declaration,

Have agreed as follows:

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ARTICLE 1

Obligation to respect human rights

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms de!ned in Section I of this Convention.

SECTION I RIGHTS AND FREEDOMS

ARTICLE 2

Right to life

1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as in"icted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

ARTICLE 3

Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

ARTICLE 4

Prohibition of slavery and forced labour

1. No one shall be held in slavery or servitude.

2. No one shall be required to perform forced or compulsory labour.

3. For the purpose of this Article the term “forced or compulsory labour” shall not include:

(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;

(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;

(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the com-munity;

(d) any work or service which forms part of normal civic obligations.

ARTICLE 5

Right to liberty and security

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non--compliance with the lawful order of a court or in order to secure the ful!lment of any obligation prescribed by law;

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(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or "eeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other of!cer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

ARTICLE 6

Right to a fair trial

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not suf!cient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

3511

10 11

ARTICLE 7

No punishment without law

1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.

ARTICLE 8

Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

ARTICLE 9

Freedom of thought, conscience and religion

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and

in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

ARTICLE 10

Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in con!dence, or for maintaining the authority and impartiality of the judiciary.

ARTICLE 11

Freedom of assembly and association

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

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12 13

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

ARTICLE 12

Right to marry

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

ARTICLE 13

Right to an effective remedy

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an of!cial capacity.

ARTICLE 14

Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

ARTICLE 15

Derogation in time of emergency

1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.

3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.

ARTICLE 16

Restrictions on political activity of aliens

Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.

ARTICLE 17

Prohibition of abuse of rights

Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and

3509

14 15

freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

ARTICLE 18

Limitation on use of restrictions on rights

The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.

SECTION II EUROPEAN COURT OF HUMAN RIGHTS

ARTICLE 19

Establishment of the Court

To ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto, there shall be set up a European Court of Human Rights, hereinafter referred to as “the Court”. It shall function on a permanent basis.

ARTICLE 20

Number of judges

The Court shall consist of a number of judges equal to that of the High Contracting Parties.

ARTICLE 21

Criteria for of!ce

1. The judges shall be of high moral character and must either possess the quali!cations required for appointment to high judicial of!ce or be jurisconsults of recognised competence.

2. The judges shall sit on the Court in their individual capacity.

3. During their term of of!ce the judges shall not engage in any activity which is incompatible with their independence, impartiality or with the demands of a full-time of!ce; all questions arising from the application of this paragraph shall be decided by the Court.

ARTICLE 22

Election of judges

The judges shall be elected by the Parliamentary Assembly with respect to each High Contracting Party by a majority of votes cast from a list of three candidates nominated by the High Contracting Party.

ARTICLE 23

Terms of of!ce and dismissal

1. The judges shall be elected for a period of nine years. They may not be re-elected.

2. The terms of of!ce of judges shall expire when they reach the age of 70.

3. The judges shall hold of!ce until replaced. They shall, however, continue to deal with such cases as they already have under consi-deration.

3508

16 17

4. No judge may be dismissed from of!ce unless the other judges decide by a majority of two-thirds that that judge has ceased to ful!l the required conditions.

ARTICLE 24

Registry and rapporteurs

1. The Court shall have a Registry, the functions and organisation of which shall be laid down in the rules of the Court.

2. When sitting in a single-judge formation, the Court shall be assisted by rapporteurs who shall function under the authority of the President of the Court. They shall form part of the Court’s Registry.

ARTICLE 25

Plenary Court

The plenary Court shall

(a) elect its President and one or two Vice-Presidents for a period of three years; they may be re-elected;

(b) set up Chambers, constituted for a !xed period of time;

(c) elect the Presidents of the Chambers of the Court; they may be re-elected;

(d) adopt the rules of the Court;

(e) elect the Registrar and one or more Deputy Registrars;

(f) make any request under Article 26, paragraph 2.

ARTICLE 26

Single-judge formation, Committees, Chambers and Grand Chamber

1. To consider cases brought before it, the Court shall sit in a single-judge formation, in committees of three judges, in

Chambers of seven judges and in a Grand Chamber of seventeen judges. The Court’s Chambers shall set up committees for a !xed period of time.

2. At the request of the plenary Court, the Committee of Ministers may, by a unanimous decision and for a !xed period, reduce to !ve the number of judges of the Chambers.

3. When sitting as a single judge, a judge shall not examine any application against the High Contracting Party in respect of which that judge has been elected.

4. There shall sit as an ex-of�cio member of the Chamber and the Grand Chamber the judge elected in respect of the High Contracting Party concerned. If there is none or if that judge is unable to sit, a person chosen by the President of the Court from a list submitted in advance by that Party shall sit in the capacity of judge.

5. The Grand Chamber shall also include the President of the Court, the Vice-Presidents, the Presidents of the Chambers and other judges chosen in accordance with the rules of the Court. When a case is referred to the Grand Chamber under Article 43, no judge from the Chamber which rendered the judgment shall sit in the Grand Chamber, with the exception of the President of the Chamber and the judge who sat in respect of the High Contracting Party concerned.

ARTICLE 27

Competence of single judges

1. A single judge may declare inadmissible or strike out of the Court’s list of cases an application submitted under Article 34, where such a decision can be taken without further examination.

2. The decision shall be !nal.

3507

18 19

3. If the single judge does not declare an application inadmissible or strike it out, that judge shall forward it to a committee or to a Chamber for further examination.

ARTICLE 28

Competence of Committees

1. In respect of an application submitted under Article 34, a committee may, by a unanimous vote,

(a) declare it inadmissible or strike it out of its list of cases, where such decision can be taken without further examination; or

(b) declare it admissible and render at the same time a judgment on the merits, if the underlying question in the case, concerning the interpretation or the application of the Convention or the Protocols thereto, is already the subject of well-established case-law of the Court.

2. Decisions and judgments under paragraph 1 shall be !nal.

3. If the judge elected in respect of the High Contracting Party concerned is not a member of the committee, the committee may at any stage of the proceedings invite that judge to take the place of one of the members of the committee, having regard to all relevant factors, including whether that Party has contested the application of the procedure under paragraph 1.b.

ARTICLE 29

Decisions by Chambers on admissibility and merits

1. If no decision is taken under Article 27 or 28, or no judgment rendered under Article 28, a Chamber shall decide on the admissibility and merits of individual applications submitted under Article 34. The decision on admissibility may be taken separately.

2. A Chamber shall decide on the admissibility and merits of inter-State applications submitted under Article 33. The decision on admissibility shall be taken separately unless the Court, in exceptional cases, decides otherwise.

ARTICLE 30

Relinquishment of jurisdiction to the Grand Chamber

Where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the Protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court, the Chamber may, at any time before it has rendered its judgment, relinquish jurisdiction in favour of the Grand Chamber, unless one of the parties to the case objects.

ARTICLE 31

Powers of the Grand Chamber

The Grand Chamber shall

(a) determine applications submitted either under Article 33 or Article 34 when a Chamber has relinquished jurisdiction under Article 30 or when the case has been referred to it under Article 43;

(b) decide on issues referred to the Court by the Committee of Ministers in accordance with Article 46, paragraph 4; and

(c) consider requests for advisory opinions submitted under Article 47.

3506

20 21

ARTICLE 32

Jurisdiction of the Court

1. The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the Protocols thereto which are referred to it as provided in Articles 33, 34, 46 and 47.

2. In the event of dispute as to whether the Court has jurisdiction, the Court shall decide.

ARTICLE 33

Inter-State cases

Any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party.

ARTICLE 34

Individual applications

The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.

ARTICLE 35

Admissibility criteria

1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally reco-gnised rules of international law, and within a period of six months from the date on which the !nal decision was taken.

2. The Court shall not deal with any application submitted under Article 34 that

(a) is anonymous; or

(b) is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information.

3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

(a) the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of individual application; or

(b) the applicant has not suffered a signi!cant disadvantage, unless respect for human rights as de!ned in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.

4. The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.

ARTICLE 36

Third party intervention

1. In all cases before a Chamber or the Grand Chamber, a High Contracting Party one of whose nationals is an applicant shall have the right to submit written comments and to take part in hearings.

2. The President of the Court may, in the interest of the proper administration of justice, invite any High Contracting Party which is not a party to the proceedings or any person concerned who

3505

22 23

is not the applicant to submit written comments or take part in hearings.

3. In all cases before a Chamber or the Grand Chamber, the Council of Europe Commissioner for Human Rights may submit written comments and take part in hearings.

ARTICLE 37

Striking out applications

1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved; or

(c) for any other reason established by the Court, it is no longer justi!ed to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as de!ned in the Convention and the Protocols thereto so requires.

2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.

ARTICLE 38

Examination of the case

The Court shall examine the case together with the representatives of the parties and, if need be, undertake an investigation, for the effective conduct of which the High Contracting Parties concerned shall furnish all neces-sary facilities.

ARTICLE 39

Friendly settlements

1. At any stage of the proceedings, the Court may place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights as de!ned in the Convention and the Protocols thereto.

2. Proceedings conducted under paragraph 1 shall be con!dential.

3. If a friendly settlement is effected, the Court shall strike the case out of its list by means of a decision which shall be con!ned to a brief statement of the facts and of the solution reached.

4. This decision shall be transmitted to the Committee of Ministers, which shall supervise the execution of the terms of the friendly settlement as set out in the decision.

ARTICLE 40

Public hearings and access to documents

1. Hearings shall be in public unless the Court in exceptional circumstances decides otherwise.

2. Documents deposited with the Registrar shall be accessible to the public unless the President of the Court decides otherwise.

ARTICLE 41

Just satisfaction

If the Court !nds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if neces-sary, afford just satisfaction to the injured party.

3504

24 25

ARTICLE 42

Judgments of Chambers

Judgments of Chambers shall become !nal in accordance with the provisions of Article 44, paragraph 2.

ARTICLE 43

Referral to the Grand Chamber

1. Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber.

2. A panel of !ve judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of gen-eral importance.

3. If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgment.

ARTICLE 44

Final judgments

1. The judgment of the Grand Chamber shall be !nal.

2. The judgment of a Chamber shall become !nal

(a) when the parties declare that they will not request that the case be referred to the Grand Chamber; or

(b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or

(c) when the panel of the Grand Chamber rejects the request to refer under Article 43.

3. The !nal judgment shall be published.

ARTICLE 45

Reasons for judgments and decisions

1. Reasons shall be given for judgments as well as for decisions declaring applications admissible or inadmissible.

2. If a judgment does not represent, in whole or in part, the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion.

ARTICLE 46

Binding force and execution of judgments

1. The High Contracting Parties undertake to abide by the !nal judgment of the Court in any case to which they are parties.

2. The !nal judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.

3. If the Committee of Ministers considers that the supervision of the execution of a !nal judgment is hindered by a problem of interpretation of the judgment, it may refer the matter to the Court for a ruling on the question of interpretation. A referral decision shall require a majority vote of two thirds of the representatives entitled to sit on the committee.

4. If the Committee of Ministers considers that a High Contracting Party refuses to abide by a !nal judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the committee, refer to the Court the question whether that Party has failed to ful!l its obligation under paragraph1.

5. If the Court !nds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken. If the Court !nds no violation of

3503

26 27

paragraph 1, it shall refer the case to the Committee of Ministers, which shall close its examination of the case.

ARTICLE 47

Advisory opinions

1. The Court may, at the request of the Committee of Ministers, give advisory opinions on legal questions concerning the interpretation of the Convention and the Protocols thereto.

2. Such opinions shall not deal with any question relating to the content or scope of the rights or freedoms de!ned in Section I of the Convention and the Protocols thereto, or with any other question which the Court or the Committee of Ministers might have to consider in consequence of any such proceedings as could be institut-ed in accordance with the Convention.

3. Decisions of the Committee of Ministers to request an advisory opinion of the Court shall require a majority vote of the representatives entitled to sit on the committee.

ARTICLE 48

Advisory jurisdiction of the Court

The Court shall decide whether a request for an advisory opinion submitted by the Committee of Ministers is within its competence as de!ned in Article 47.

ARTICLE 49

Reasons for advisory opinions

1. Reasons shall be given for advisory opinions of the Court.

2. If the advisory opinion does not represent, in whole or in part, the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion.

3. Advisory opinions of the Court shall be communicated to the Committee of Ministers.

ARTICLE 50

Expenditure on the Court

The expenditure on the Court shall be borne by the Council of Europe.

ARTICLE 51

Privileges and immunities of judges

The judges shall be entitled, during the exercise of their functions, to the privileges and immunities provided for in Article 40 of the Statute of the Council of Europe and in the agreements made thereunder.

SECTION III MISCELLANEOUS PROVISIONS

ARTICLE 52

Inquiries by the Secretary General

On receipt of a request from the Secretary General of the Council of Europe any High Contracting Party shall furnish an explanation of the manner in which its internal law ensures the effective implementation of any of the provisions of the Convention.

ARTICLE 53

Safeguard for existing human rights

Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental

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28 29

freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a party.

ARTICLE 54

Powers of the Committee of Ministers

Nothing in this Convention shall prejudice the powers conferred on the Committee of Ministers by the Statute of the Council of Europe.

ARTICLE 55

Exclusion of other means of dispute settlement

The High Contracting Parties agree that, except by special agreement, they will not avail themselves of treaties, conventions or declarations in force between them for the purpose of submitting, by way of petition, a dispute arising out of the interpretation or application of this Convention to a means of settlement other than those provided for in this Convention.

ARTICLE 56

Territorial application

1. Any State may at the time of its rati!cation or at any time thereafter declare by noti!cation addressed to the Secretary General of the Council of Europe that the present Convention shall, subject to paragraph 4 of this Article, extend to all or any of the territories for whose international relations it is responsible.

2. The Convention shall extend to the territory or territories named in the noti!cation as from the thirtieth day after the receipt of this noti!cation by the Secretary General of the Council of Europe.

3. The provisions of this Convention shall be applied in such territories with due regard, however, to local requirements.

4. Any State which has made a declaration in accordance with paragraph 1 of this Article may at any time thereafter declare on behalf of one or more of the territories to which the declaration relates that it accepts the competence of the Court to receive applications from individuals, non-governmental organisations or groups of individuals as provided by Article 34 of the Convention.

ARTICLE 57

Reservations

1. Any State may, when signing this Convention or when depositing its instrument of rati!cation, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision. Reservations of a general character shall not be permitted under this Article.

2. Any reservation made under this Article shall contain a brief statement of the law concerned.

ARTICLE 58

Denunciation

1. A High Contracting Party may denounce the present Convention only after the expiry of !ve years from the date on which it became a party to it and after six months’ notice contained in a noti!cation addressed to the Secretary General of the Council of Europe, who shall inform the other High Contracting Parties.

2. Such a denunciation shall not have the effect of releasing the High Contracting Party concerned from its obligations under this Convention in respect of any act which, being capable of constituting a violation of such obligations, may have been

3501

30 31

performed by it before the date at which the denunciation became effective.

3. Any High Contracting Party which shall cease to be a member of the Council of Europe shall cease to be a Party to this Convention under the same conditions.

4. The Convention may be denounced in accordance with the provisions of the preceding paragraphs in respect of any territory to which it has been declared to extend under the terms of Article 56.

ARTICLE 59

Signature and rati!cation

1. This Convention shall be open to the signature of the members of the Council of Europe. It shall be rati!ed. Rati!cations shall be deposited with the Secretary General of the Council of Europe.

2. The European Union may accede to this Convention.

3. The present Convention shall come into force after the deposit of ten instruments of rati!cation.

4. As regards any signatory ratifying subsequently, the Convention shall come into force at the date of the deposit of its instrument of rati!cation.

5. The Secretary General of the Council of Europe shall notify all the members of the Council of Europe of the entry into force of the Convention, the names of the High Contracting Parties who have rati!ed it, and the de-posit of all instruments of rati!cation which may be effected subsequently.

DONE AT ROME THIS 4TH DAY OF NOVEMBER 1950, in English and French, both texts being equally authentic, in a single copy which shall remain deposited in the archives of the Council of Europe. The Secretary General shall transmit certi!ed copies to each of the signatories.

Protocol

to the Convention for the Protection of Human Rights

and Fundamental FreedomsParis, 20.III.1952

THE GOVERNMENTS SIGNATORY HERETO, being members of the Council of Europe,

Being resolved to take steps to ensure the collective enforcement of certain rights and freedoms other than those already included in Section I of the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter referred to as “the Convention”),

Have agreed as follows:

ARTICLE 1

Protection of property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

3500

�� !��"��!��#��$��%��#��&�

'&� ��

3499

THE GENEVA

CONVENTIONS

OF 12 AUGUST 1949

3498

THE GENEVA

CONVENTIONS

OF 12 AUGUST 1949

3496

THE GENEVA CONVENTIONS OF 1949 151

PART I

GENERAL PROVISIONS

Article 1

!e High Contracting Parties undertake to respect and to ensure respect for

the present Convention in all circumstances.

Article 2

In addition to the provisions which shall be implemented in peacetime, the

present Convention shall apply to all cases of declared war or of any other

armed con"ict which may arise between two or more of the High Contract-

ing Parties, even if the state of war is not recognized by one of them.

!e Convention shall also apply to all cases of partial or total occupation of

the territory of a High Contracting Party, even if the said occupation meets

with no armed resistance.

Although one of the Powers in con"ict may not be a party to the present

Convention, the Powers who are parties thereto shall remain bound by it in

their mutual relations. !ey shall furthermore be bound by the Convention

in relation to the said Power, if the latter accepts and applies the provisions

thereof.

Article 3

In the case of armed con"ict not of an international character occurring in

the territory of one of the High Contracting Parties, each Party to the con"ict

shall be bound to apply, as a minimum, the following provisions:

1) Persons taking no active part in the hostilities, including members of

armed forces who have laid down their arms and those placed hors de

combat by sickness, wounds, detention, or any other cause, shall in all

circumstances be treated humanely, without any adverse distinction

GENEVA CONVENTION

RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS

IN TIME OF WAR OF 12 AUGUST 1949

!e undersigned Plenipotentiaries of the Governments represented at the Diplomatic

Conference held at Geneva from April 21 to August 12, 1949, for the purpose of establishing

a Convention for the Protection of Civilian Persons in Time of War, have agreed as follows:

1 !e marginal notes or titles of articles have been dra#ed by the Swiss Federal Department of

Foreign A$airs.

Respect

for the

Convention1

Con�icts

not of an

international

character

Application

of the

Convention

3495

152 FOURTH CONVENTION

founded on race, colour, religion or faith, sex, birth or wealth, or any

other similar criteria.

To this end, the following acts are and shall remain prohibited at any time

and in any place whatsoever with respect to the above-mentioned persons:

a) violence to life and person, in particular murder of all kinds, mutila-

tion, cruel treatment and torture;

b) taking of hostages;

c) outrages upon personal dignity, in particular humiliating and de-

grading treatment;

d) the passing of sentences and the carrying out of executions without

previous judgment pronounced by a regularly constituted court, af-

fording all the judicial guarantees which are recognized as indispens-

able by civilized peoples.

2) !e wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee

of the Red Cross, may o$er its services to the Parties to the con"ict.

!e Parties to the con"ict should further endeavour to bring into force,

by means of special agreements, all or part of the other provisions of the

present Convention.

!e application of the preceding provisions shall not a$ect the legal sta-

tus of the Parties to the con"ict.

Article 4

Persons protected by the Convention are those who at a given moment and in

any manner whatsoever, %nd themselves, in case of a con"ict or occupation,

in the hands of persons a Party to the con"ict or Occupying Power of which

they are not nationals.

Nationals of a State which is not bound by the Convention are not protected

by it. Nationals of a neutral State who %nd themselves in the territory of a

belligerent State, and nationals of a co-belligerent State, shall not be regarded

as protected persons while the State of which they are nationals has normal

diplomatic representation in the State in whose hands they are.

!e provisions of Part II are, however, wider in application, as de%ned in

Article 13.

Persons protected by the Geneva Convention for the Amelioration of the

Condition of the Wounded and Sick in Armed Forces in the Field of August

12, 1949, or by the Geneva Convention for the Amelioration of the Condition

of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of

August 12, 1949, or by the Geneva Convention relative to the Treatment of

De!nition

of protected

persons

3494


Prisoners of War of August 12, 1949, shall not be considered as protected

persons within the meaning of the present Convention.

Article 5

Where, in the territory of a Party to the con"ict, the latter is satis%ed that an

individual protected person is de%nitely suspected of or engaged in activities

hostile to the security of the State, such individual person shall not be entitled

to claim such rights and privileges under the present Convention as would, if

exercised in the favour of such individual person, be prejudicial to the secu-

rity of such State.

Where in occupied territory an individual protected person is detained as a

spy or saboteur, or as a person under de%nite suspicion of activity hostile to

the security of the Occupying Power, such person shall, in those cases where

absolute military security so requires, be regarded as having forfeited rights

of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity, and in

case of trial, shall not be deprived of the rights of fair and regular trial prescribed

by the present Convention. !ey shall also be granted the full rights and privi-

leges of a protected person under the present Convention at the earliest date

consistent with the security of the State or Occupying Power, as the case may be.

Article 6

!e present Convention shall apply from the outset of any con"ict or occupa-

tion mentioned in Article 2.

In the territory of Parties to the con"ict, the application of the present

Convention shall cease on the general close of military operations.

In the case of occupied territory, the application of the present Convention

shall cease one year a#er the general close of military operations; however,

the Occupying Power shall be bound, for the duration of the occupation, to

the extent that such Power exercises the functions of government in such ter-

ritory, by the provisions of the following Articles of the present Convention:

1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143.

Protected persons whose release, repatriation or re-establishment may take place

a#er such dates shall meanwhile continue to bene%t by the present Convention.

Article 7

In addition to the agreements expressly provided for in Articles 11, 14, 15, 17,

36, 108, 109, 132, 133 and 149, the High Contracting Parties may conclude

other special agreements for all matters concerning which they may deem it

suitable to make separate provision. No special agreement shall adversely af-

Derogations

Beginning

and end of

application

Special

agreements

3493


fect the situation of protected persons, as de%ned by the present Convention,

nor restrict the rights which it confers upon them.

Protected persons shall continue to have the bene%t of such agreements as

long as the Convention is applicable to them, except where express provisions

to the contrary are contained in the aforesaid or in subsequent agreements, or

where more favourable measures have been taken with regard to them by one

or other of the Parties to the con"ict.

Article 8

Protected persons may in no circumstances renounce in part or in entirety

the rights secured to them by the present Convention, and by the special

agreements referred to in the foregoing Article, if such there be.

Article 9

!e present Convention shall be applied with the co-operation and under the

scrutiny of the Protecting Powers whose duty it is to safeguard the interests

of the Parties to the con"ict. For this purpose, the Protecting Powers may ap-

point, apart from their diplomatic or consular sta$, delegates from amongst

their own nationals or the nationals of other neutral Powers. !e said del-

egates shall be subject to the approval of the Power with which they are to

carry out their duties.

!e Parties to the con"ict shall facilitate to the greatest extent possible the

task of the representatives or delegates of the Protecting Powers.

!e representatives or delegates of the Protecting Powers shall not in any case

exceed their mission under the present Convention. !ey shall, in particular,

take account of the imperative necessities of security of the State wherein they


Article 10

!e provisions of the present Convention constitute no obstacle to the hu-

manitarian activities which the International Committee of the Red Cross or

any other impartial humanitarian organization may, subject to the consent of

the Parties to the con"ict concerned, undertake for the protection of civilian

persons and for their relief.

Article 11

!e High Contracting Parties may at any time agree to entrust to an interna-

tional organization which o$ers all guarantees of impartiality and e&cacy the

duties incumbent on the Protecting Powers by virtue of the present Convention.

When persons protected by the present Convention do not bene%t or cease

to bene%t, no matter for what reason, by the activities of a Protecting Power

Protecting

Powers

Activities of

the Interna-

tional Com-

mittee of the

Red Cross

Substitutes

for Protect-

ing Powers

Non-renun-

ciation of

rights

3492


or of an organization provided for in the %rst paragraph above, the Detaining

Power shall request a neutral State, or such an organization, to undertake the

functions performed under the present Convention by a Protecting Power

designated by the Parties to a con"ict.

If protection cannot be arranged accordingly, the Detaining Power shall re-

quest or shall accept, subject to the provisions of this Article, the o$er of the

services of a humanitarian organization, such as the International Committee

of the Red Cross, to assume the humanitarian functions performed by

Protecting Powers under the present Convention.

Any neutral Power or any organization invited by the Power concerned or

o$ering itself for these purposes, shall be required to act with a sense of re-

sponsibility towards the Party to the con"ict on which persons protected by

the present Convention depend, and shall be required to furnish su&cient

assurances that it is in a position to undertake the appropriate functions and

to discharge them impartially.

No derogation from the preceding provisions shall be made by special agree-

ments between Powers one of which is restricted, even temporarily, in its

freedom to negotiate with the other Power or its allies by reason of military

events, more particularly where the whole, or a substantial part, of the terri-

tory of the said Power is occupied.

Whenever in the present Convention mention is made of a Protecting Power,

such mention applies to substitute organizations in the sense of the present

Article.

!e provisions of this Article shall extend and be adapted to cases of nationals

of a neutral State who are in occupied territory or who %nd themselves in the

territory of a belligerent State in which the State of which they are nationals

has not normal diplomatic representation.

Article 12

In cases where they deem it advisable in the interest of protected persons,

particularly in cases of disagreement between the Parties to the con"ict as to

the application or interpretation of the provisions of the present Convention,

the Protecting Powers shall lend their good o&ces with a view to settling the

disagreement.

For this purpose, each of the Protecting Powers may, either at the invitation

of one Party or on its own initiative, propose to the Parties to the con"ict a

meeting of their representatives, and in particular of the authorities respon-

sible for protected persons, possibly on neutral territory suitably chosen. !e

Parties to the con"ict shall be bound to give e$ect to the proposals made to

them for this purpose. !e Protecting Powers may, if necessary, propose for

approval by the Parties to the con"ict, a person belonging to a neutral Power

Conciliation

procedure

3491


or delegated by the International Committee of the Red Cross, who shall be

invited to take part in such a meeting.

PART II

GENERAL PROTECTION OF POPULATIONS

AGAINST CERTAIN CONSEQUENCES OF WAR

Article 13

!e provisions of Part II cover the whole of the populations of the countries

in con"ict, without any adverse distinction based, in particular, on race, na-

tionality, religion or political opinion, and are intended to alleviate the su$er-

ings caused by war.

Article 14

In time of peace, the High Contracting Parties and, a#er the outbreak of hos-

tilities, the Parties thereto, may establish in their own territory and, if the need

arises, in occupied areas, hospital and safety zones and localities so organized

as to protect from the e$ects of war, wounded, sick and aged persons, chil-

dren under %#een, expectant mothers and mothers of children under seven.

Upon the outbreak and during the course of hostilities, the Parties concerned

may conclude agreements on mutual recognition of the zones and localities

they have created. !ey may for this purpose implement the provisions of the

Dra# Agreement annexed to the present Convention, with such amendments

as they may consider necessary.

!e Protecting Powers and the International Committee of the Red Cross

are invited to lend their good o&ces in order to facilitate the institution and

recognition of these hospital and safety zones and localities.

Article 15

Any Party to the con"ict may, either direct or through a neutral State or some

humanitarian organization, propose to the adverse Party to establish, in the

regions where %ghting is taking place, neutralized zones intended to shelter

from the e$ects of war the following persons, without distinction:

a) wounded and sick combatants or non-combatants;

b) civilian persons who take no part in hostilities, and who, while they

reside in the zones, perform no work of a military character.

When the Parties concerned have agreed upon the geographical position, ad-

ministration, food supply and supervision of the proposed neutralized zone,

a written agreement shall be concluded and signed by the representatives of

the Parties to the con"ict. !e agreement shall %x the beginning and the dura-

tion of the neutralization of the zone.

Hospital and

safety zones

and localities

Field of

application

of Part II

Neutralized

zones

3490


Wounded

and sick

I. General

protection

Article 16

!e wounded and sick, as well as the in%rm, and expectant mothers, shall be

the object of particular protection and respect.

As far as military considerations allow, each Party to the con"ict shall fa-

cilitate the steps taken to search for the killed and wounded, to assist the

shipwrecked and other persons exposed to grave danger, and to protect them

against pillage and ill-treatment.

Article 17

!e Parties to the con"ict shall endeavour to conclude local agreements for the

removal from besieged or encircled areas, of wounded, sick, in%rm, and aged

persons, children and maternity cases, and for the passage of ministers of all re-

ligions, medical personnel and medical equipment on their way to such areas.

Article 18

Civilian hospitals organized to give care to the wounded and sick, the in%rm

and maternity cases, may in no circumstances be the object of attack, but shall

at all times be respected and protected by the Parties to the con"ict.

States which are Parties to a con"ict shall provide all civilian hospitals with

certi%cates showing that they are civilian hospitals and that the buildings

which they occupy are not used for any purpose which would deprive these

hospitals of protection in accordance with Article 19.

Civilian hospitals shall be marked by means of the emblem provided for in

Article 38 of the Geneva Convention for the Amelioration of the Condition of

the Wounded and Sick in Armed Forces in the Field of August 12, 1949, but

only if so authorized by the State.

!e Parties to the con"ict shall, in so far as military considerations permit,

take the necessary steps to make the distinctive emblems indicating civilian

hospitals clearly visible to the enemy land, air and naval forces in order to

obviate the possibility of any hostile action.

In view of the dangers to which hospitals may be exposed by being close to

military objectives, it is recommended that such hospitals be situated as far as

possible from such objectives.

Article 19

!e protection to which civilian hospitals are entitled shall not cease unless

they are used to commit, outside their humanitarian duties, acts harmful to

the enemy. Protection may, however, cease only a#er due warning has been

given, naming, in all appropriate cases, a reasonable time limit, and a#er such

warning has remained unheeded.

II. Evacuation

III. Protection

of hospitals

IV. Discon-

tinuance of

protection

of hospitals

3489


!e fact that sick or wounded members of the armed forces are nursed in

these hospitals, or the presence of small arms and ammunition taken from

such combatants and not yet handed to the proper service, shall not be con-

sidered to be acts harmful to the enemy.

Article 20

Persons regularly and solely engaged in the operation and administration of

civilian hospitals, including the personnel engaged in the search for, removal

and transporting of and caring for wounded and sick civilians, the in%rm and

maternity cases, shall be respected and protected.

In occupied territory and in zones of military operations, the above person-

nel shall be recognizable by means of an identity card certifying their status,

bearing the photograph of the holder and embossed with the stamp of the

responsible authority, and also by means of a stamped, water-resistant armlet

which they shall wear on the le# arm while carrying out their duties. !is

armlet shall be issued by the State and shall bear the emblem provided for in

Article 38 of the Geneva Convention for the Amelioration of the Condition

of the Wounded and Sick in Armed Forces in the Field of August 12, 1949.

Other personnel who are engaged in the operation and administration of ci-

vilian hospitals shall be entitled to respect and protection and to wear the

armlet, as provided in and under the conditions prescribed in this Article,

while they are employed on such duties. !e identity card shall state the du-

ties on which they are employed.

!e management of each hospital shall at all times hold at the disposal of the

competent national or occupying authorities an up-to-date list of such personnel.

Article 21

Convoys of vehicles or hospital trains on land or specially provided vessels on

sea, conveying wounded and sick civilians, the in%rm and maternity cases,

shall be respected and protected in the same manner as the hospitals pro-

vided for in Article 18, and shall be marked, with the consent of the State, by

the display of the distinctive emblem provided for in Article 38 of the Geneva

Convention for the Amelioration of the Condition of the Wounded and Sick

in Armed Forces in the Field of August 12, 1949.

Article 22

Aircra# exclusively employed for the removal of wounded and sick civilians,

the in%rm and maternity cases, or for the transport of medical personnel

and equipment, shall not be attacked, but shall be respected while "ying at

heights, times and on routes speci%cally agreed upon between all the Parties

to the con"ict concerned.

VI. Land and

sea transport

VII. Air

transport

V. Hospital

sta"

3488


!ey may be marked with the distinctive emblem provided for in Article

38 of the Geneva Convention for the Amelioration of the Condition of the

Wounded and Sick in Armed Forces in the Field of August 12, 1949.

Unless agreed otherwise, "ights over enemy or enemy-occupied territory are

prohibited.

Such aircra# shall obey every summons to land. In the event of a landing thus

imposed, the aircra# with its occupants may continue its "ight a#er examina-

tion, if any.

Article 23

Each High Contracting Party shall allow the free passage of all consignments

of medical and hospital stores and objects necessary for religious worship in-

tended only for civilians of another High Contracting Party, even if the latter

is its adversary. It shall likewise permit the free passage of all consignments of

essential foodstu$s, clothing and tonics intended for children under %#een,

expectant mothers and maternity cases.

!e obligation of a High Contracting Party to allow the free passage of the

consignments indicated in the preceding paragraph is subject to the condi-

tion that this Party is satis%ed that there are no serious reasons for fearing:

a) that the consignments may be diverted from their destination,

b) that the control may not be e$ective, or

c) that a de%nite advantage may accrue to the military e$orts or economy

of the enemy through the substitution of the above-mentioned con-

signments for goods which would otherwise be provided or produced

by the enemy or through the release of such material, services or facili-

ties as would otherwise be required for the production of such goods.

!e Power which allows the passage of the consignments indicated in the

%rst paragraph of this Article may make such permission conditional on the

distribution to the persons bene%ted thereby being made under the local su-

pervision of the Protecting Powers.

Such consignments shall be forwarded as rapidly as possible, and the Power

which permits their free passage shall have the right to prescribe the technical

arrangements under which such passage is allowed.

Article 24

!e Parties to the con"ict shall take the necessary measures to ensure that

children under %#een, who are orphaned or are separated from their fami-

lies as a result of the war, are not le# to their own resources, and that their

maintenance, the exercise of their religion and their education are facilitated

in all circumstances. !eir education shall, as far as possible, be entrusted to

persons of a similar cultural tradition.

Measures

relating to

child welfare

Consign-

ments of

medical

supplies,

food and

clothing

3487


!e Parties to the con"ict shall facilitate the reception of such children in a

neutral country for the duration of the con"ict with the consent of the Pro-

tecting Power, if any, and under due safeguards for the observance of the

principles stated in the %rst paragraph.

!ey shall, furthermore, endeavour to arrange for all children under twelve to

be identi%ed by the wearing of identity discs, or by some other means.

Article 25

All persons in the territory of a Party to the con"ict, or in a territory occupied

by it, shall be enabled to give news of a strictly personal nature to members

of their families, wherever they may be, and to receive news from them. !is

correspondence shall be forwarded speedily and without undue delay.

If, as a result of circumstances, it becomes di&cult or impossible to exchange

family correspondence by the ordinary post, the Parties to the con"ict con-

cerned shall apply to a neutral intermediary, such as the Central Agency

provided for in Article 140, and shall decide in consultation with it how to

ensure the ful%lment of their obligations under the best possible conditions,

in particular with the co-operation of the National Red Cross (Red Crescent,

Red Lion and Sun) Societies.

If the Parties to the con"ict deem it necessary to restrict family correspon-

dence, such restrictions shall be con%ned to the compulsory use of standard

forms containing twenty-%ve freely chosen words, and to the limitation of the

number of these forms despatched to one each month.

Article 26

Each Party to the con"ict shall facilitate enquiries made by members of fami-

lies dispersed owing to the war, with the object of renewing contact with one

another and of meeting, if possible. It shall encourage, in particular, the work

of organizations engaged on this task provided they are acceptable to it and

conform to its security regulations.

Dispersed

families

Family news

3486


Treatment

I. General

observations

PART III

STATUS AND TREATMENT OF PROTECTED PERSONS

SECTION I

Provisions common to the territories of the parties

to the con!ict and to occupied territories

Article 27

Protected persons are entitled, in all circumstances, to respect for their per-

sons, their honour, their family rights, their religious convictions and prac-

tices, and their manners and customs. !ey shall at all times be humanely

treated, and shall be protected especially against all acts of violence or threats

thereof and against insults and public curiosity.

Women shall be especially protected against any attack on their honour, in

particular against rape, enforced prostitution, or any form of indecent assault.

Without prejudice to the provisions relating to their state of health, age and

sex, all protected persons shall be treated with the same consideration by the

Party to the con"ict in whose power they are, without any adverse distinction

based, in particular, on race, religion or political opinion.

However, the Parties to the con"ict may take such measures of control and se-

curity in regard to protected persons as may be necessary as a result of the war.

Article 28

!e presence of a protected person may not be used to render certain points

or areas immune from military operations.

Article 29

!e Party to the con"ict in whose hands protected persons may be, is re-

sponsible for the treatment accorded to them by its agents, irrespective of any

individual responsibility which may be incurred.

Article 30

Protected persons shall have every facility for making application to the Pro-

tecting Powers, the International Committee of the Red Cross, the National

Red Cross (Red Crescent, Red Lion and Sun) Society of the country where

they may be, as well as to any organization that might assist them.

!ese several organizations shall be granted all facilities for that purpose by

the authorities, within the bounds set by military or security considerations.

Apart from the visits of the delegates of the Protecting Powers and of the

International Committee of the Red Cross, provided for by Article 143, the

Detaining or Occupying Powers shall facilitate as much as possible visits to

Application

to Protecting

Powers and

relief organi-

zations

III. Responsi-

bilities

II. Danger

zones

3485


protected persons by the representatives of other organizations whose object

is to give spiritual aid or material relief to such persons.

Article 31

No physical or moral coercion shall be exercised against protected persons, in

particular to obtain information from them or from third parties.

Article 32

!e High Contracting Parties speci%cally agree that each of them is prohib-

ited from taking any measure of such a character as to cause the physical

su$ering or extermination of protected persons in their hands. !is prohibi-

tion applies not only to murder, torture, corporal punishment, mutilation and

medical or scienti%c experiments not necessitated by the medical treatment

of a protected person, but also to any other measures of brutality whether ap-

plied by civilian or military agents.

Article 33

No protected person may be punished for an o$ence he or she has not per-

sonally committed. Collective penalties and likewise all measures of intimi-

dation or of terrorism are prohibited.

Pillage is prohibited.

Reprisals against protected persons and their property are prohibited.

Article 34

!e taking of hostages is prohibited.

SECTION II

Aliens in the territory of a party to the conflict

Article 35

All protected persons who may desire to leave the territory at the outset of, or

during a con"ict, shall be entitled to do so, unless their departure is contrary

to the national interests of the State. !e applications of such persons to leave

shall be decided in accordance with regularly established procedures and the

decision shall be taken as rapidly as possible. !ose persons permitted to leave

may provide themselves with the necessary funds for their journey and take

with them a reasonable amount of their e$ects and articles of personal use.

If any such person is refused permission to leave the territory, he shall be entitled

to have such refusal reconsidered as soon as possible by an appropriate court or

administrative board designated by the Detaining Power for that purpose.

Hostages

Right to

leave the

territory

Individual

responsibil-

ity, collective

penalties,

pillage,

reprisals

Prohibition

of coercion

Prohibition

of corporal

punishment,

torture, etc.

3484


Method of

repatriation

Upon request, representatives of the Protecting Power shall, unless reasons

of security prevent it, or the persons concerned object, be furnished with the

reasons for refusal of any request for permission to leave the territory and be

given, as expeditiously as possible, the names of all persons who have been

denied permission to leave.

Article 36

Departures permitted under the foregoing Article shall be carried out in sat-

isfactory conditions as regards safety, hygiene, sanitation and food. All costs

in connection therewith, from the point of exit in the territory of the Detain-

ing Power, shall be borne by the country of destination, or, in the case of

accommodation in a neutral country, by the Power whose nationals are ben-

e%ted. !e practical details of such movements may, if necessary, be settled by

special agreements between the Powers concerned.

!e foregoing shall not prejudice such special agreements as may be conclud-

ed between Parties to the con"ict concerning the exchange and repatriation

of their nationals in enemy hands.

Article 37

Protected persons who are con%ned pending proceedings or serving a sentence

involving loss of liberty, shall during their con%nement be humanely treated.

As soon as they are released, they may ask to leave the territory in conformity

with the foregoing Articles.

Article 38

With the exception of special measures authorized by the present Convention,

in particular by Articles 27 and 41 thereof, the situation of protected persons

shall continue to be regulated, in principle, by the provisions concerning al-

iens in time of peace. In any case, the following rights shall be granted to them:

1) !ey shall be enabled to receive the individual or collective relief that

may be sent to them.

2) !ey shall, if their state of health so requires, receive medical attention

and hospital treatment to the same extent as the nationals of the State

concerned.

3) !ey shall be allowed to practise their religion and to receive spiritual

assistance from ministers of their faith.

4) If they reside in an area particularly exposed to the dangers of war, they

shall be authorized to move from that area to the same extent as the na-

tionals of the State concerned.

Persons in

con!nement

Non-

repatriated

persons

I. General

observations

3483


5) Children under %#een years, pregnant women and mothers of children

under seven years shall bene%t by any preferential treatment to the same

extent as the nationals of the State concerned.

Article 39

Protected persons who, as a result of the war, have lost their gainful employ-

ment, shall be granted the opportunity to %nd paid employment. !at op-

portunity shall, subject to security considerations and to the provisions of

Article 40, be equal to that enjoyed by the nationals of the Power in whose

territory they are.

Where a Party to the con"ict applies to a protected person methods of control

which result in his being unable to support himself, and especially if such a

person is prevented for reasons of security from %nding paid employment on

reasonable conditions, the said Party shall ensure his support and that of his

dependents.

Protected persons may in any case receive allowances from their home coun-

try, the Protecting Power, or the relief societies referred to in Article 30.

Article 40

Protected persons may be compelled to work only to the same extent as na-

tionals of the Party to the con"ict in whose territory they are.

If protected persons are of enemy nationality, they may only be compelled to

do work which is normally necessary to ensure the feeding, sheltering, cloth-

ing, transport and health of human beings and which is not directly related to

the conduct of military operations.

In the cases mentioned in the two preceding paragraphs, protected persons

compelled to work shall have the bene%t of the same working conditions and

of the same safeguards as national workers, in particular as regards wages,

hours of labour, clothing and equipment, previous training and compensa-

tion for occupational accidents and diseases.

If the above provisions are infringed, protected persons shall be allowed to

exercise their right of complaint in accordance with Article 30.

Article 41

Should the Power in whose hands protected persons may be consider the

measures of control mentioned in the present Convention to be inadequate,

it may not have recourse to any other measure of control more severe than

that of assigned residence or internment, in accordance with the provisions

of Articles 42 and 43.

III.

Employment

IV. Assigned

residence.

Internment

II. Means of

existence

3482


V. Grounds for

internment

or assigned

residence.

Voluntary

internment

In applying the provisions of Article 39, second paragraph, to the cases of per-

sons required to leave their usual places of residence by virtue of a decision

placing them in assigned residence elsewhere, the Detaining Power shall be

guided as closely as possible by the standards of welfare set forth in Part III,

Section IV of this Convention.

Article 42

!e internment or placing in assigned residence of protected persons may be

ordered only if the security of the Detaining Power makes it absolutely necessary.

If any person, acting through the representatives of the Protecting Power, vol-

untarily demands internment, and if his situation renders this step necessary,

he shall be interned by the Power in whose hands he may be.

Article 43

Any protected person who has been interned or placed in assigned residence

shall be entitled to have such action reconsidered as soon as possible by an

appropriate court or administrative board designated by the Detaining Power

for that purpose. If the internment or placing in assigned residence is main-

tained, the court or administrative board shall periodically, and at least twice

yearly, give consideration to his or her case, with a view to the favourable

amendment of the initial decision, if circumstances permit.

Unless the protected persons concerned object, the Detaining Power shall,

as rapidly as possible, give the Protecting Power the names of any protected

persons who have been interned or subjected to assigned residence, or who

have been released from internment or assigned residence. !e decisions of

the courts or boards mentioned in the %rst paragraph of the present Article

shall also, subject to the same conditions, be noti%ed as rapidly as possible to

the Protecting Power.

Article 44

In applying the measures of control mentioned in the present Convention,

the Detaining Power shall not treat as enemy aliens exclusively on the basis of

their nationality de jure of an enemy State, refugees who do not, in fact, enjoy

the protection of any government.

Article 45

Protected persons shall not be transferred to a Power which is not a party to

the Convention.

!is provision shall in no way constitute an obstacle to the repatriation of

protected persons, or to their return to their country of residence a#er the

cessation of hostilities.

VII. Refugees

VIII. Transfer

to another

Power

VI. Procedure

3481


Protected persons may be transferred by the Detaining Power only to a Power

which is a party to the present Convention and a#er the Detaining Power has

satis%ed itself of the willingness and ability of such transferee Power to ap-

ply the present Convention. If protected persons are transferred under such

circumstances, responsibility for the application of the present Convention

rests on the Power accepting them, while they are in its custody. Nevertheless,

if that Power falls to carry out the provisions of the present Convention in

any important respect, the Power by which the protected persons were trans-

ferred shall, upon being so noti%ed by the Protecting Power, take e$ective

measures to correct the situation or shall request the return of the protected

persons. Such request must be complied with.

In no circumstances shall a protected person be transferred to a country

where he or she may have reason to fear persecution for his or her political

opinions or religious beliefs.

!e provisions of this Article do not constitute an obstacle to the extradition,

in pursuance of extradition treaties concluded before the outbreak of hostili-

ties, of protected persons accused of o$ences against ordinary criminal law.

Article 46

In so far as they have not been previously withdrawn, restrictive measures

taken regarding protected persons shall be cancelled as soon as possible a#er

the close of hostilities.

Restrictive measures a$ecting their property shall be cancelled, in accordance

with the law of the Detaining Power, as soon as possible a#er the close of

hostilities.

SECTION III

Occupied territories

Article 47

Protected persons who are in occupied territory shall not be deprived, in any

case or in any manner whatsoever, of the bene%ts of the present Convention

by any change introduced, as the result of the occupation of a territory, into

the institutions or government of the said territory, nor by any agreement

concluded between the authorities of the occupied territories and the Occu-

pying Power, nor by any annexation by the latter of the whole or part of the

occupied territory.

Inviolability

of rights

Cancellation

of restrictive

measures

3480


Special cases

of

repatriation

Deportations,

transfers,

evacuations

Article 48

Protected persons who are not nationals of the Power whose territory is oc-

cupied, may avail themselves of the right to leave the territory subject to the

provisions of Article 35, and decisions thereon shall be taken according to the

procedure which the Occupying Power shall establish in accordance with the

said Article.

Article 49

Individual or mass forcible transfers, as well as deportations of protected per-

sons from occupied territory to the territory of the Occupying Power or to that

of any other country, occupied or not, are prohibited, regardless of their motive.

Nevertheless, the Occupying Power may undertake total or partial evacua-

tion of a given area if the security of the population or imperative military

reasons so demand. Such evacuations may not involve the displacement of

protected persons outside the bounds of the occupied territory except when

for material reasons it is impossible to avoid such displacement. Persons thus

evacuated shall be transferred back to their homes as soon as hostilities in the

area in question have ceased.

!e Occupying Power undertaking such transfers or evacuations shall ensure,

to the greatest practicable extent, that proper accommodation is provided to

receive the protected persons, that the removals are e$ected in satisfactory

conditions of hygiene, health, safety and nutrition, and that members of the

same family are not separated.

!e Protecting Power shall be informed of any transfers and evacuations as

soon as they have taken place.

!e Occupying Power shall not detain protected persons in an area particu-

larly exposed to the dangers of war unless the security of the population or

imperative military reasons so demand.

!e Occupying Power shall not deport or transfer parts of its own civilian

population into the territory it occupies.

Article 50

!e Occupying Power shall, with the co-operation of the national and local

authorities, facilitate the proper working of all institutions devoted to the care

and education of children.

!e Occupying Power shall take all necessary steps to facilitate the identi%ca-

tion of children and the registration of their parentage. It may not, in any case,

change their personal status, nor enlist them in formations or organizations

subordinate to it.

Children

3479


Should the local institutions be inadequate for the purpose, the Occupying

Power shall make arrangements for the maintenance and education, if pos-

sible by persons of their own nationality, language and religion, of children

who are orphaned or separated from their parents as a result of the war and

who cannot be adequately cared for by a near relative or friend.

A special section of the Bureau set up in accordance with Article 136 shall be

responsible for taking all necessary steps to identify children whose identity

is in doubt. Particulars of their parents or other near relatives should always

be recorded if available.

!e Occupying Power shall not hinder the application of any preferential

measures in regard to food, medical care and protection against the e$ects of

war, which may have been adopted prior to the occupation in favour of chil-

dren under %#een years, expectant mothers, and mothers of children under

seven years.

Article 51

!e Occupying Power may not compel protected persons to serve in its

armed or auxiliary forces. No pressure or propaganda which aims at securing

voluntary enlistment is permitted.

!e Occupying Power may not compel protected persons to work unless they

are over eighteen years of age, and then only on work which is necessary

either for the needs of the army of occupation, or for the public utility ser-

vices, or for the feeding, sheltering, clothing, transportation or health of the

population of the occupied country. Protected persons may not be compelled

to undertake any work which would involve them in the obligation of taking

part in military operations. !e Occupying Power may not compel protected

persons to employ forcible means to ensure the security of the installations

where they are performing compulsory labour.

!e work shall be carried out only in the occupied territory where the per-

sons whose services have been requisitioned are. Every such person shall, so

far as possible, be kept in his usual place of employment. Workers shall be

paid a fair wage and the work shall be proportionate to their physical and in-

tellectual capacities. !e legislation in force in the occupied country concern-

ing working conditions, and safeguards as regards, in particular, such matters

as wages, hours of work, equipment, preliminary training and compensation

for occupational accidents and diseases, shall be applicable to the protected

persons assigned to the work referred to in this Article.

In no case shall requisition of labour lead to a mobilization of workers in an

organization of a military or semi-military character.

Enlistment.

Labour

3478


Protection

of workers

Prohibited

destruction

Judges

and public

o#cials

Article 52

No contract, agreement or regulation shall impair the right of any worker,

whether voluntary or not and wherever he may be, to apply to the representa-

tives of the Protecting Power in order to request the said Power’s intervention.

All measures aiming at creating unemployment or at restricting the opportu-

nities o$ered to workers in an occupied territory, in order to induce them to

work for the Occupying Power, are prohibited.

Article 53

Any destruction by the Occupying Power of real or personal property belong-

ing individually or collectively to private persons, or to the State, or to other

public authorities, or to social or co-operative organizations, is prohibited,

except where such destruction is rendered absolutely necessary by military

operations.

Article 54

!e Occupying Power may not alter the status of public o&cials or judges in

the occupied territories, or in any way apply sanctions to or take any meas-

ures of coercion or discrimination against them, should they abstain from

ful%lling their functions for reasons of conscience.

!is prohibition does not prejudice the application of the second paragraph

of Article 51. It does not a$ect the right of the Occupying Power to remove

public o&cials from their posts.

Article 55

To the fullest extent of the means available to it, the Occupying Power has the

duty of ensuring the food and medical supplies of the population; it should, in

particular, bring in the necessary foodstu$s, medical stores and other articles

if the resources of the occupied territory are inadequate.

!e Occupying Power may not requisition foodstu$s, articles or medical

supplies available in the occupied territory, except for use by the occupation

forces and administration personnel, and then only if the requirements of the

civilian population have been taken into account. Subject to the provisions of

other international Conventions, the Occupying Power shall make arrange-

ments to ensure that fair value is paid for any requisitioned goods.

!e Protecting Power shall, at any time, be at liberty to verify the state of the

food and medical supplies in occupied territories, except where temporary

restrictions are made necessary by imperative military requirements.

Food and

medical

supplies

for the

population

3477


Article 56

To the fullest extent of the means available to it, the Occupying Power has

the duty of ensuring and maintaining, with the co-operation of national and

local authorities, the medical and hospital establishments and services, public

health and hygiene in the occupied territory, with particular reference to the

adoption and application of the prophylactic and preventive measures nec-

essary to combat the spread of contagious diseases and epidemics. Medical

personnel of all categories shall be allowed to carry out their duties.

If new hospitals are set up in occupied territory and if the competent organs

of the occupied State are not operating there, the occupying authorities shall,

if necessary, grant them the recognition provided for in Article 18. In similar

circumstances, the occupying authorities shall also grant recognition to hospi-

tal personnel and transport vehicles under the provisions of Articles 20 and 21.

In adopting measures of health and hygiene and in their implementation, the

Occupying Power shall take into consideration the moral and ethical suscep-

tibilities of the population of the occupied territory.

Article 57

!e Occupying Power may requisition civilian hospitals only temporarily and

only in cases of urgent necessity for the care of military wounded and sick,

and then on condition that suitable arrangements are made in due time for

the care and treatment of the patients and for the needs of the civilian popula-

tion for hospital accommodation.

!e material and stores of civilian hospitals cannot be requisitioned so long as

they are necessary for the needs of the civilian population.

Article 58

!e Occupying Power shall permit ministers of religion to give spiritual as-

sistance to the members of their religious communities.

!e Occupying Power shall also accept consignments of books and articles

required for religious needs and shall facilitate their distribution in occupied

territory.

Article 59

If the whole or part of the population of an occupied territory is inadequately

supplied, the Occupying Power shall agree to relief schemes on behalf of the

said population, and shall facilitate them by all the means at its disposal.

Such schemes, which may be undertaken either by States or by impartial hu-

manitarian organizations such as the International Committee of the Red

Cross, shall consist, in particular, of the provision of consignments of food-

stu$s, medical supplies and clothing.

Relief

I. Collective

relief

Spiritual

assistance

Hygiene and

public health

Requisition

of hospitals

3476


II. Responsi-

bilities of the

Occupying

Power

III.

Distribution

All Contracting Parties shall permit the free passage of these consignments

and shall guarantee their protection.

A Power granting free passage to consignments on their way to territory oc-

cupied by an adverse Party to the con"ict shall, however, have the right to

search the consignments, to regulate their passage according to prescribed

times and routes, and to be reasonably satis%ed through the Protecting Power

that these consignments are to be used for the relief of the needy population

and are not to be used for the bene%t of the Occupying Power.

Article 60

Relief consignments shall in no way relieve the Occupying Power of any of its

responsibilities under Articles 55, 56 and 59. !e Occupying Power shall in no

way whatsoever divert relief consignments from the purpose for which they

are intended, except in cases of urgent necessity, in the interests of the popula-

tion of the occupied territory and with the consent of the Protecting Power.

Article 61

!e distribution of the relief consignments referred to in the foregoing Arti-

cles shall be carried out with the co-operation and under the supervision of

the Protecting Power. !is duty may also be delegated, by agreement between

the Occupying Power and the Protecting Power, to a neutral Power, to the

International Committee of the Red Cross or to any other impartial humani-

tarian body.

Such consignments shall be exempt in occupied territory from all charges,

taxes or customs duties unless these are necessary in the interests of the econ-

omy of the territory. !e Occupying Power shall facilitate the rapid distribu-

tion of these consignments.

All Contracting Parties shall endeavour to permit the transit and transport,

free of charge, of such relief consignments on their way to occupied territories.

Article 62

Subject to imperative reasons of security, protected persons in occupied ter-

ritories shall be permitted to receive the individual relief consignments sent

to them.

Article 63

Subject to temporary and exceptional measures imposed for urgent reasons

of security by the Occupying Power:

a) recognized National Red Cross (Red Crescent, Red Lion and Sun)

Societies shall be able to pursue their activities in accordance with

Red Cross Principles, as de%ned by the International Red Cross Con-

IV. Individual

relief

National Red

Cross and

other relief

societies

3475


ferences. Other relief societies shall be permitted to continue their

humanitarian activities under similar conditions;

b) the Occupying Power may not require any changes in the personnel

or structure of these societies, which would prejudice the aforesaid

activities.

!e same principles shall apply to the activities and personnel of special or-

ganizations of a non-military character, which already exist or which may be

established, for the purpose of ensuring the living conditions of the civilian

population by the maintenance of the essential public utility services, by the

distribution of relief and by the organization of rescues.

Article 64

!e penal laws of the occupied territory shall remain in force, with the excep-

tion that they may be repealed or suspended by the Occupying Power in cases

where they constitute a threat to its security or an obstacle to the application

of the present Convention. Subject to the latter consideration and to the ne-

cessity for ensuring the e$ective administration of justice, the tribunals of the

occupied territory shall continue to function in respect of all o$ences covered

by the said laws.

!e Occupying Power may, however, subject the population of the occupied

territory to provisions which are essential to enable the Occupying Power to

ful%l its obligations under the present Convention, to maintain the orderly gov-

ernment of the territory, and to ensure the security of the Occupying Power,

of the members and property of the occupying forces or administration, and

likewise of the establishments and lines of communication used by them.

Article 65

!e penal provisions enacted by the Occupying Power shall not come into

force before they have been published and brought to the knowledge of the

inhabitants in their own language. !e e$ect of these penal provisions shall

not be retroactive.

Article 66

In case of a breach of the penal provisions promulgated by it by virtue of the

second paragraph of Article 64, the Occupying Power may hand over the ac-

cused to its properly constituted, non-political military courts, on condition

that the said courts sit in the occupied country. Courts of appeal shall prefer-

ably sit in the occupied country.

Article 67

!e courts shall apply only those provisions of law which were applicable

prior to the o$ence, and which are in accordance with general principles of

IV. Applicable

provisions

III. Compe-

tent courts

Penal

legislation

I. General

observations

II. Publication

3474


V. Penalties.

Death

penalty

law, in particular the principle that the penalty shall be proportionate to the

o$ence. !ey shall take into consideration the fact that the accused is not a

national of the Occupying Power.

Article 68

Protected persons who commit an o$ence which is solely intended to harm

the Occupying Power, but which does not constitute an attempt on the life or

limb of members of the occupying forces or administration, nor a grave col-

lective danger, nor seriously damage the property of the occupying forces or

administration or the installations used by them, shall be liable to internment

or simple imprisonment, provided the duration of such internment or im-

prisonment is proportionate to the o$ence committed. Furthermore, intern-

ment or imprisonment shall, for such o$ences, be the only measure adopted

for depriving protected persons of liberty. !e courts provided for under Ar-

ticle 66 of the present Convention may at their discretion convert a sentence

of imprisonment to one of internment for the same period.

!e penal provisions promulgated by the Occupying Power in accordance

with Articles 64 and 65 may impose the death penalty on a protected person

only in cases where the person is guilty of espionage, of serious acts of sabo-

tage against the military installations of the Occupying Power or of inten-

tional o$ences which have caused the death of one or more persons, provided

that such o$ences were punishable by death under the law of the occupied

territory in force before the occupation began.

!e death penalty may not be pronounced against a protected person unless

the attention of the court has been particularly called to the fact that since the

accused is not a national of the Occupying Power, he is not bound to it by any

duty of allegiance.

In any case, the death penalty may not be pronounced against a protected

person who was under eighteen years of age at the time of the o$ence.

Article 69

In all cases, the duration of the period during which a protected person ac-

cused of an o$ence is under arrest awaiting trial or punishment shall be de-

ducted from any period of imprisonment awarded.

Article 70

Protected persons shall not be arrested, prosecuted or convicted by the

Occupying Power for acts committed or for opinions expressed before the

occupation, or during a temporary interruption thereof, with the exception

of breaches of the laws and customs of war.

VI. Deduction

from sentence

of period

spent under

arrest

VII. O"ences

committed

before

occupation

3473


Nationals of the Occupying Power who, before the outbreak of hostilities,

have sought refuge in the territory of the occupied State, shall not be arrested,

prosecuted, convicted or deported from the occupied territory, except for of-

fences committed a#er the outbreak of hostilities, or for o$ences under com-

mon law committed before the outbreak of hostilities which, according to the

law of the occupied State, would have justi%ed extradition in time of peace.

Article 71

No sentence shall be pronounced by the competent courts of the Occupying

Power except a#er a regular trial.

Accused persons who are prosecuted by the Occupying Power shall be

promptly informed, in writing, in a language which they understand, of

the particulars of the charges preferred against them, and shall be brought

to trial as rapidly as possible. !e Protecting Power shall be informed of all

proceedings instituted by the Occupying Power against protected persons in

respect of charges involving the death penalty or imprisonment for two years

or more; it shall be enabled, at any time, to obtain information regarding the

state of such proceedings. Furthermore, the Protecting Power shall be en-

titled, on request, to be furnished with all particulars of these and of any other

proceedings instituted by the Occupying Power against protected persons.

!e noti%cation to the Protecting Power, as provided for in the second

paragraph above, shall be sent immediately, and shall in any case reach the

Protecting Power three weeks before the date of the %rst hearing. Unless,

at the opening of the trial, evidence is submitted that the provisions of this

Article are fully complied with, the trial shall not proceed. !e noti%cation

shall include the following particulars:

a) description of the accused;

b) place of residence or detention;

c) speci%cation of the charge or charges (with mention of the penal pro-

visions under which it is brought);

d) designation of the court which will hear the case;

e) place and date of the %rst hearing.

Article 72

Accused persons shall have the right to present evidence necessary to their

defence and may, in particular, call witnesses. !ey shall have the right to be

assisted by a quali%ed advocate or counsel of their own choice, who shall be

able to visit them freely and shall enjoy the necessary facilities for preparing

the defence.

Failing a choice by the accused, the Protecting Power may provide him with

an advocate or counsel. When an accused person has to meet a serious charge

II. Right of

defence

Penal

procedure

I. General

observations

3472


III. Right of

appeal

IV. Assistance

by the

Protecting

Power

and the Protecting Power is not functioning, the Occupying Power, subject to

the consent of the accused, shall provide an advocate or counsel.

Accused persons shall, unless they freely waive such assistance, be aided by

an interpreter, both during preliminary investigation and during the hearing

in court. !ey shall have the right at any time to object to the interpreter and

to ask for his replacement.

Article 73

A convicted person shall have the right of appeal provided for by the laws ap-

plied by the court. He shall be fully informed of his right to appeal or petition

and of the time limit within which he may do so.

!e penal procedure provided in the present Section shall apply, as far as it

is applicable, to appeals. Where the laws applied by the court make no provi-

sion for appeals, the convicted person shall have the right to petition against

the %nding and sentence to the competent authority of the Occupying Power.

Article 74

Representatives of the Protecting Power shall have the right to attend the trial

of any protected person, unless the hearing has, as an exceptional measure,

to be held in camera in the interests of the security of the Occupying Power,

which shall then notify the Protecting Power. A noti%cation in respect of the

date and place of trial shall be sent to the Protecting Power.

Any judgment involving a sentence of death, or imprisonment for two years

or more, shall be communicated, with the relevant grounds, as rapidly as pos-

sible to the Protecting Power. !e noti%cation shall contain a reference to the

noti%cation made under Article 71, and, in the case of sentences of imprison-

ment, the name of the place where the sentence is to be served. A record of

judgments other than those referred to above shall be kept by the court and

shall be open to inspection by representatives of the Protecting Power. Any

period allowed for appeal in the case of sentences involving the death pen-

alty, or imprisonment of two years or more, shall not run until noti%cation of

judgment has been received by the Protecting Power.

Article 75

In no case shall persons condemned to death be deprived of the right of peti-

tion for pardon or reprieve.

No death sentence shall be carried out before the expiration of a period of at

least six months from the date of receipt by the Protecting Power of the noti-

%cation of the %nal judgment con%rming such death sentence, or of an order

denying pardon or reprieve.

V. Death

sentence

3471


!e six months period of suspension of the death sentence herein prescribed

may be reduced in individual cases in circumstances of grave emergency in-

volving an organized threat to the security of the Occupying Power or its

forces, provided always that the Protecting Power is noti%ed of such reduc-

tion and is given reasonable time and opportunity to make representations

to the competent occupying authorities in respect of such death sentences.

Article 76

Protected persons accused of o$ences shall be detained in the occupied coun-

try, and if convicted they shall serve their sentences therein. !ey shall, if

possible, be separated from other detainees and shall enjoy conditions of food

and hygiene which will be su&cient to keep them in good health, and which

will be at least equal to those obtaining in prisons in the occupied country.

!ey shall receive the medical attention required by their state of health.

!ey shall also have the right to receive any spiritual assistance which they

may require.

Women shall be con%ned in separate quarters and shall be under the direct

supervision of women.

Proper regard shall be paid to the special treatment due to minors.

Protected persons who are detained shall have the right to be visited by del-

egates of the Protecting Power and of the International Committee of the Red

Cross, in accordance with the provisions of Article 143.

Such persons shall have the right to receive at least one relief parcel monthly.

Article 77

Protected persons who have been accused of o$ences or convicted by the

courts in occupied territory, shall be handed over at the close of occupation,

with the relevant records, to the authorities of the liberated territory.

Article 78

If the Occupying Power considers it necessary, for imperative reasons of secu-

rity, to take safety measures concerning protected persons, it may, at the most,

subject them to assigned residence or to internment.

Decisions regarding such assigned residence or internment shall be made ac-

cording to a regular procedure to be prescribed by the Occupying Power in

accordance with the provisions of the present Convention. !is procedure

shall include the right of appeal for the parties concerned. Appeals shall be

decided with the least possible delay. In the event of the decision being up-

held, it shall be subject to periodical review, if possible every six months, by a

competent body set up by the said Power.

Security

measures.

Internment

and assigned

residence.

Right of

appeal

Treatment

of detainees

Handing over

of detainees

at the close of

occupation

3470


Cases of

internment

and applicable

provisions

Civil capacity

Maintenance

Protected persons made subject to assigned residence and thus required

to leave their homes shall enjoy the full bene%t of Article 39 of the present

Convention.

SECTION IV

Regulations for the treatment of internees

CHAPTER I

General Provisions

Article 79

!e Parties to the con"ict shall not intern protected persons, except in ac-

cordance with the provisions of Articles 41, 42, 43, 68 and 78.

Article 80

Internees shall retain their full civil capacity and shall exercise such attendant

rights as may be compatible with their status.

Article 81

Parties to the con"ict who intern protected persons shall be bound to provide

free of charge for their maintenance, and to grant them also the medical at-

tention required by their state of health.

No deduction from the allowances, salaries or credits due to the internees

shall be made for the repayment of these costs.

!e Detaining Power shall provide for the support of those dependent on the

internees, if such dependents are without adequate means of support or are

unable to earn a living.

Article 82

!e Detaining Power shall, as far as possible, accommodate the internees

according to their nationality, language and customs. Internees who are na-

tionals of the same country shall not be separated merely because they have

di$erent languages.

!roughout the duration of their internment, members of the same family,

and in particular parents and children, shall be lodged together in the same

place of internment, except when separation of a temporary nature is neces-

sitated for reasons of employment or health or for the purposes of enforce-

ment of the provisions of Chapter IX of the present Section. Internees may

request that their children who are le# at liberty without parental care shall

be interned with them.

Grouping of

internees

3469


Wherever possible, interned members of the same family shall be housed in

the same premises and given separate accommodation from other internees,

together with facilities for leading a proper family life.

CHAPTER II

Places of Internment

Article 83

!e Detaining Power shall not set up places of internment in areas particu-

larly exposed to the dangers of war.

!e Detaining Power shall give the enemy Powers, through the intermediary

of the Protecting Powers, all useful information regarding the geographical

location of places of internment.

Whenever military considerations permit, internment camps shall be indi-

cated by the letters IC, placed so as to be clearly visible in the daytime from

the air. !e Powers concerned may, however, agree upon any other system of

marking. No place other than an internment camp shall be marked as such.

Article 84

Internees shall be accommodated and administered separately from prison-

ers of war and from persons deprived of liberty for any other reason.

Article 85

!e Detaining Power is bound to take all necessary and possible measures

to ensure that protected persons shall, from the outset of their internment,

be accommodated in buildings or quarters which a$ord every possible safe-

guard as regards hygiene and health, and provide e&cient protection against

the rigours of the climate and the e$ects of the war. In no case shall perma-

nent places of internment be situated in unhealthy areas or in districts the

climate of which is injurious to the internees. In all cases where the district,

in which a protected person is temporarily interned, is in an unhealthy area

or has a climate which is harmful to his health, he shall be removed to a more

suitable place of internment as rapidly as circumstances permit.

!e premises shall be fully protected from dampness, adequately heated and

lighted, in particular between dusk and lights out. !e sleeping quarters shall

be su&ciently spacious and well ventilated, and the internees shall have suit-

able bedding and su&cient blankets, account being taken of the climate, and

the age, sex, and state of health of the internees.

Internees shall have for their use, day and night, sanitary conveniences which

conform to the rules of hygiene and are constantly maintained in a state of

Accommoda-

tion, hygiene

Location of

places of

internment.

Marking

of camps

Separate

internment

3468


Premises

for religions

services

Canteens

cleanliness. !ey shall be provided with su&cient water and soap for their

daily personal toilet and for washing their personal laundry; installations

and facilities necessary for this purpose shall be granted to them. Showers or

baths shall also be available. !e necessary time shall be set aside for washing

and for cleaning.

Whenever it is necessary, as an exceptional and temporary measure, to accom-

modate women internees who are not members of a family unit in the same

place of internment as men, the provision of separate sleeping quarters and

sanitary conveniences for the use of such women internees shall be obligatory.

Article 86

!e Detaining Power shall place at the disposal of interned persons, of what-

ever denomination, premises suitable for the holding of their religious services.

Article 87

Canteens shall be installed in every place of internment, except where other

suitable facilities are available. !eir purpose shall be to enable internees to

make purchases, at prices not higher than local market prices, of foodstu$s

and articles of everyday use, including soap and tobacco, such as would in-

crease their personal well-being and comfort.

Pro%ts made by canteens shall be credited to a welfare fund to be set up for each

place of internment, and administered for the bene%t of the internees attached

to such place of internment. !e Internee Committee provided for in Article 102

shall have the right to check the management of the canteen and of the said fund.

When a place of internment is closed down, the balance of the welfare fund

shall be transferred to the welfare fund of a place of internment for internees

of the same nationality, or, if such a place does not exist, to a central welfare

fund which shall be administered for the bene%t of all internees remaining

in the custody of the Detaining Power. In case of a general release, the said

pro%ts shall be kept by the Detaining Power, subject to any agreement to the

contrary between the Powers concerned.

Article 88

In all places of internment exposed to air raids and other hazards of war,

shelters adequate in number and structure to ensure the necessary protection

shall be installed. In case of alarms, the internees shall be free to enter such

shelters as quickly as possible, excepting those who remain for the protection

of their quarters against the aforesaid hazards. Any protective measures taken

in favour of the population shall also apply to them.

All due precautions must be taken in places of internment against the danger

of %re.

Air raid

shelters.

Protective

measures

3467


CHAPTER III

Food and Clothing

Article 89

Daily food rations for internees shall be su&cient in quantity, quality and va-

riety to keep internees in a good state of health and prevent the development

of nutritional de%ciencies. Account shall also be taken of the customary diet

of the internees.

Internees shall also be given the means by which they can prepare for them-

selves any additional food in their possession.

Su&cient drinking water shall be supplied to internees. !e use of tobacco

shall be permitted.

Internees who work shall receive additional rations in proportion to the kind

of labour which they perform.

Expectant and nursing mothers and children under %#een years of age shall

be given additional food, in proportion to their physiological needs.

Article 90

When taken into custody, internees shall be given all facilities to provide them-

selves with the necessary clothing, footwear and change of underwear, and later

on, to procure further supplies if required. Should any internees not have suf-

%cient clothing, account being taken of the climate, and be unable to procure

any, it shall be provided free of charge to them by the Detaining Power.

!e clothing supplied by the Detaining Power to internees and the outward

markings placed on their own clothes shall not be ignominious nor expose

them to ridicule.

Workers shall receive suitable working out%ts, including protective clothing,

whenever the nature of their work so requires.

CHAPTER IV

Hygiene and Medical Attention

Article 91

Every place of internment shall have an adequate in%rmary, under the di-

rection of a quali%ed doctor, where internees may have the attention they

require, as well as an appropriate diet. Isolation wards shall be set aside for

cases of contagious or mental diseases.

Maternity cases and internees su$ering from serious diseases, or whose condi-

tion requires special treatment, a surgical operation or hospital care, must be

Medical

attention

Food

Clothing

3466


Medical

inspections

Religious

duties

admitted to any institution where adequate treatment can be given and shall

receive care not inferior to that provided for the general population.

Internees shall, for preference, have the attention of medical personnel of

their own nationality.

Internees may not be prevented from presenting themselves to the medical

authorities for examination. !e medical authorities of the Detaining Power

shall, upon request, issue to every internee who has undergone treatment an

o&cial certi%cate showing the nature of his illness or injury, and the duration

and nature of the treatment given. A duplicate of this certi%cate shall be for-

warded to the Central Agency provided for in Article 140.

Treatment, including the provision of any apparatus necessary for the main-

tenance of internees in good health, particularly dentures and other arti%cial

appliances and spectacles, shall be free of charge to the internee.

Article 92

Medical inspections of internees shall be made at least once a month. !eir

purpose shall be, in particular, to supervise the general state of health, nutri-

tion and cleanliness of internees, and to detect contagious diseases, especially

tuberculosis, malaria, and venereal diseases. Such inspections shall include,

in particular, the checking of weight of each internee and, at least once a year,

radioscopic examination.

CHAPTER V

Religious, Intellectual and Physical Activities

Article 93

Internees shall enjoy complete latitude in the exercise of their religious du-

ties, including attendance at the services of their faith, on condition that they

comply with the disciplinary routine prescribed by the detaining authorities.

Ministers of religion who are interned shall be allowed to minister freely to

the members of their community. For this purpose, the Detaining Power shall

ensure their equitable allocation amongst the various places of internment in

which there are internees speaking the same language and belonging to the

same religion. Should such ministers be too few in number, the Detaining

Power shall provide them with the necessary facilities, including means of

transport, for moving from one place to another, and they shall be authorized

to visit any internees who are in hospital. Ministers of religion shall be at

liberty to correspond on matters concerning their ministry with the religious

authorities in the country of detention and, as far as possible, with the in-

ternational religious organizations of their faith. Such correspondence shall

3465


not be considered as forming a part of the quota mentioned in Article 107. It

shall, however, be subject to the provisions of Article 112.

When internees do not have at their disposal the assistance of ministers of

their faith, or should these latter be too few in number, the local religious

authorities of the same faith may appoint, in agreement with the Detaining

Power, a minister of the internees’ faith or, if such a course is feasible from

a denominational point of view, a minister of similar religion or a quali%ed

layman. !e latter shall enjoy the facilities granted to the ministry he has as-

sumed. Persons so appointed shall comply with all regulations laid down by

the Detaining Power in the interests of discipline and security.

Article 94

!e Detaining Power shall encourage intellectual, educational and recrea-

tional pursuits, sports and games amongst internees, whilst leaving them free

to take part in them or not. It shall take all practicable measures to ensure the

exercise thereof, in particular by providing suitable premises.

All possible facilities shall be granted to internees to continue their studies

or to take up new subjects. !e education of children and young people shall

be ensured; they shall be allowed to attend schools either within the place of

internment or outside.

Internees shall be given opportunities for physical exercise, sports and out-

door games. For this purpose, su&cient open spaces shall be set aside in all

places of internment. Special playgrounds shall be reserved for children and

young people.

Article 95

!e Detaining Power shall not employ internees as workers, unless they so

desire. Employment which, if undertaken under compulsion by a protected

person not in internment, would involve a breach of Articles 40 or 51 of the

present Convention, and employment on work which is of a degrading or

humiliating character are in any case prohibited.

A#er a working period of six weeks, internees shall be free to give up work at

any moment, subject to eight days’ notice.

!ese provisions constitute no obstacle to the right of the Detaining Power

to employ interned doctors, dentists and other medical personnel in their

professional capacity on behalf of their fellow internees, or to employ intern-

ees for administrative and maintenance work in places of internment and to

detail such persons for work in the kitchens or for other domestic tasks, or

to require such persons to undertake duties connected with the protection of

internees against aerial bombardment or other war risks. No internee may,

Recreation,

study, sports

and games

Working

conditions

3464


Labour

detachments

however, be required to perform tasks for which he is, in the opinion of a

medical o&cer, physically unsuited.

!e Detaining Power shall take entire responsibility for all working condi-

tions, for medical attention, for the payment of wages, and for ensuring that

all employed internees receive compensation for occupational accidents and

diseases. !e standards prescribed for the said working conditions and for

compensation shall be in accordance with the national laws and regulations,

and with the existing practice; they shall in no case be inferior to those ob-

taining for work of the same nature in the same district. Wages for work done

shall be determined on an equitable basis by special agreements between the

internees, the Detaining Power, and, if the case arises, employers other than

the Detaining Power, due regard being paid to the obligation of the Detaining

Power to provide for free maintenance of internees and for the medical atten-

tion which their state of health may require. Internees permanently detailed

for categories of work mentioned in the third paragraph of this Article shall

be paid fair wages by the Detaining Power. !e working conditions and the

scale of compensation for occupational accidents and diseases to internees,

thus detailed, shall not be inferior to those applicable to work of the same

nature in the same district.

Article 96

All labour detachments shall remain part of and dependent upon a place of

internment. !e competent authorities of the Detaining Power and the com-

mandant of a place of internment shall be responsible for the observance in

a labour detachment of the provisions of the present Convention. !e com-

mandant shall keep an up-to-date list of the labour detachments subordinate

to him and shall communicate it to the delegates of the Protecting Power,

of the International Committee of the Red Cross and of other humanitarian

organizations who may visit the places of internment.

CHAPTER VI

Personal Property and Financial Resources

Article 97

Internees shall be permitted to retain articles of personal use. Monies,

cheques, bonds, etc., and valuables in their possession may not be taken from

them except in accordance with established procedure. Detailed receipts shall

be given therefor.

!e amounts shall be paid into the account of every internee as provided for

in Article 98. Such amounts may not be converted into any other currency

Valuables

and personal

e"ects

3463


unless legislation in force in the territory in which the owner is interned so

requires or the internee gives his consent.

Articles which have above all a personal or sentimental value may not be

taken away.

A woman internee shall not be searched except by a woman.

On release or repatriation, internees shall be given all articles, monies or oth-

er valuables taken from them during internment and shall receive in currency

the balance of any credit to their accounts kept in accordance with Article 98,

with the exception of any articles or amounts withheld by the Detaining

Power by virtue of its legislation in force. If the property of an internee is so

withheld, the owner shall receive a detailed receipt.

Family or identity documents in the possession of internees may not be taken

away without a receipt being given. At no time shall internees be le# with-

out identity documents. If they have none, they shall be issued with special

documents drawn up by the detaining authorities, which will serve as their

identity papers until the end of their internment.

Internees may keep on their persons a certain amount of money, in cash or in

the shape of purchase coupons, to enable them to make purchases.

Article 98

All internees shall receive regular allowances, su&cient to enable them to

purchase goods and articles, such as tobacco, toilet requisites, etc. Such al-

lowances may take the form of credits or purchase coupons.

Furthermore, internees may receive allowances from the Power to which they

owe allegiance, the Protecting Powers, the organizations which may assist them,

or their families, as well as the income on their property in accordance with the

law of the Detaining Power. !e amount of allowances granted by the Power

to which they owe allegiance shall be the same for each category of internees

(in%rm, sick, pregnant women, etc.), but may not be allocated by that Power

or distributed by the Detaining Power on the basis of discriminations between

internees which are prohibited by Article 27 of the present Convention.

!e Detaining Power shall open a regular account for every internee, to which

shall be credited the allowances named in the present Article, the wages earned

and the remittances received, together with such sums taken from him as may

be available under the legislation in force in the territory in which he is in-

terned. Internees shall be granted all facilities consistent with the legislation in

force in such territory to make remittances to their families and to other de-

pendants. !ey may draw from their accounts the amounts necessary for their

personal expenses, within the limits %xed by the Detaining Power. !ey shall

at all times be a$orded reasonable facilities for consulting and obtaining copies

Financial

resources

and

individual

accounts

3462


Camp admin-

istration.

Posting

of the

Convention

and of orders

General

discipline

of their accounts. A statement of accounts shall be furnished to the Protecting

Power on request, and shall accompany the internee in case of transfer.

CHAPTER VII

Administration and Discipline

Article 99

Every place of internment shall be put under the authority of a responsible

o&cer, chosen from the regular military forces or the regular civil administra-

tion of the Detaining Power. !e o&cer in charge of the place of internment

must have in his possession a copy of the present Convention in the o&cial

language, or one of the o&cial languages, of his country and shall be respon-

sible for its application. !e sta$ in control of internees shall be instructed in

the provisions of the present Convention and of the administrative measures

adopted to ensure its application.

!e text of the present Convention and the texts of special agreements con-

cluded under the said Convention shall be posted inside the place of in-

ternment, in a language which the internees understand, or shall be in the

possession of the Internee Committee.

Regulations, orders, notices and publications of every kind shall be commu-

nicated to the internees and posted inside the places of internment, in a lan-

guage which they understand.

Every order and command addressed to internees individually must likewise

be given in a language which they understand.

Article 100

!e disciplinary regime in places of internment shall be consistent with hu-

manitarian principles, and shall in no circumstances include regulations

imposing on internees any physical exertion dangerous to their health or

involving physical or moral victimization. Identi%cation by tattooing or im-

printing signs or markings on the body, is prohibited.

In particular, prolonged standing and roll-calls, punishment drill, military

drill and manœuvres, or the reduction of food rations, are prohibited.

Article 101

Internees shall have the right to present to the authorities in whose power

they are, any petition with regard to the conditions of internment to which

they are subjected.

!ey shall also have the right to apply without restriction through the Internee

Committee or, if they consider it necessary, direct to the representatives of the

Complaints

and petitions

3461


Protecting Power, in order to indicate to them any points on which they may

have complaints to make with regard to the conditions of internment.

Such petitions and complaints shall be transmitted forthwith and without al-

teration, and even if the latter are recognized to be unfounded, they may not

occasion any punishment.

Periodic reports on the situation in places of internment and as to the needs

of the internees may be sent by the Internee Committees to the representa-

tives of the Protecting Powers.

Article 102

In every place of internment, the internees shall freely elect by secret ballot

every six months, the members of a Committee empowered to represent them

before the Detaining and the Protecting Powers, the International Commit-

tee of the Red Cross and any other organization which may assist them. !e

members of the Committee shall be eligible for re-election.

Internees so elected shall enter upon their duties a#er their election has been

approved by the detaining authorities. !e reasons for any refusals or dis-

missals shall be communicated to the Protecting Powers concerned.

Article 103

!e Internee Committees shall further the physical, spiritual and intellectual

well-being of the internees.

In case the internees decide, in particular, to organize a system of mutual

assistance amongst themselves, this organization would be within the com-

petence of the Committees in addition to the special duties entrusted to them

under other provisions of the present Convention.

Article 104

Members of Internee Committees shall not be required to perform any other

work, if the accomplishment of their duties is rendered more di&cult thereby.

Members of Internee Committees may appoint from amongst the internees

such assistants as they may require. All material facilities shall be granted to

them, particularly a certain freedom of movement necessary for the accom-

plishment of their duties (visits to labour detachments, receipt of supplies, etc.).

All facilities shall likewise be accorded to members of Internee Committees

for communication by post and telegraph with the detaining authorities,

the Protecting Powers, the International Committee of the Red Cross and

their delegates, and with the organizations which give assistance to intern-

ees, Committee members in labour detachments shall enjoy similar facili-

ties for communication with their Internee Committee in the principal place

Internee

Committees

I. Election of

members

II. Duties

III.

Prerogatives

3460


Internment

card

Correspon-

dence

Noti!cation

of measures

taken

of internment. Such communications shall not be limited, nor considered as

forming a part of the quota mentioned in Article 107.

Members of Internee Committees who are transferred shall be allowed a rea-

sonable time to acquaint their successors with current a$airs.

CHAPTER VIII

Relations with the Exterior

Article 105

Immediately upon interning protected persons, the Detaining Powers shall

inform them, the Power to which they owe allegiance and their Protect-

ing Power of the measures taken for executing the provisions of the present

Chapter. !e Detaining Powers shall likewise inform the Parties concerned of

any subsequent modi%cations of such measures.

Article 106

As soon as he is interned, or at the latest not more than one week a#er his ar-

rival in a place of internment, and likewise in cases of sickness or transfer to

another place of internment or to a hospital, every internee shall be enabled

to send direct to his family, on the one hand, and to the Central Agency pro-

vided for by Article 140, on the other, an internment card similar, if possible,

to the model annexed to the present Convention, informing his relatives of

his detention, address and state of health. !e said cards shall be forwarded

as rapidly as possible and may not be delayed in any way.

Article 107

Internees shall be allowed to send and receive letters and cards. If the Detain-

ing Power deems it necessary to limit the number of letters and cards sent by

each internee, the said number shall not be less than two letters and four cards

monthly; these shall be drawn up so as to conform as closely as possible to the

models annexed to the present Convention. If limitations must be placed on

the correspondence addressed to internees, they may be ordered only by the

Power to which such internees owe allegiance, possibly at the request of the

Detaining Power. Such letters and cards must be conveyed with reasonable

despatch; they may not be delayed or retained for disciplinary reasons.

Internees who have been a long time without news, or who %nd it impossible

to receive news from their relatives, or to give them news by the ordinary

postal route, as well as those who are at a considerable distance from their

homes, shall be allowed to send telegrams, the charges being paid by them in

the currency at their disposal. !ey shall likewise bene%t by this provision in

cases which are recognized to be urgent.

3459


As a rule, internees’ mail shall be written in their own language. !e Parties to

the con"ict may authorize correspondence in other languages.

Article 108

Internees shall be allowed to receive, by post or by any other means, individual

parcels or collective shipments containing in particular foodstu$s, clothing,

medical supplies, as well as books and objects of a devotional, educational or

recreational character which may meet their needs. Such shipments shall in

no way free the Detaining Power from the obligations imposed upon it by

virtue of the present Convention.

Should military necessity require the quantity of such shipments to be lim-

ited, due notice thereof shall be given to the Protecting Power and to the

International Committee of the Red Cross, or to any other organization giv-

ing assistance to the internees and responsible for the forwarding of such

shipments.

!e conditions for the sending of individual parcels and collective shipments

shall, if necessary, be the subject of special agreements between the Powers

concerned, which may in no case delay the receipt by the internees of relief

supplies. Parcels of clothing and foodstu$s may not include books. Medical

relief supplies shall, as a rule, be sent in collective parcels.

Article 109

In the absence of special agreements between Parties to the con"ict regarding

the conditions for the receipt and distribution of collective relief shipments,

the regulations concerning collective relief which are annexed to the present

Convention shall be applied.

!e special agreements provided for above shall in no case restrict the right

of Internee Committees to take possession of collective relief shipments in-

tended for internees, to undertake their distribution and to dispose of them

in the interests of the recipients.

Nor shall such agreements restrict the right of representatives of the Protecting

Powers, the International Committee of the Red Cross, or any other organiza-

tion giving assistance to internees and responsible for the forwarding of col-

lective shipments, to supervise their distribution to the recipients.

Article 110

All relief shipments for internees shall be exempt from import, customs and

other dues.

All matter sent by mail, including relief parcels sent by parcel post and remit-

tances of money, addressed from other countries to internees or despatched

by them through the post o&ce, either direct or through the Information

III. Exemp-

tion from

postal and

transport

charges

Relief

shipments

I. General

principles

II. Collective

relief

3458


Special

means of

transport

Bureaux provided for in Article 136 and the Central Information Agency

provided for in Article 140, shall be exempt from all postal dues both in the

countries of origin and destination and in intermediate countries. To this end,

in particular, the exemption provided by the Universal Postal Convention of

1947 and by the agreements of the Universal Postal Union in favour of ci-

vilians of enemy nationality detained in camps or civilian prisons, shall be

extended to the other interned persons protected by the present Convention.

!e countries not signatory to the above-mentioned agreements shall be

bound to grant freedom from charges in the same circumstances.

!e cost of transporting relief shipments which are intended for internees and

which, by reason of their weight or any other cause, cannot be sent through

the post o&ce, shall be borne by the Detaining Power in all the territories

under its control. Other Powers which are Parties to the present Convention

shall bear the cost of transport in their respective territories.

Costs connected with the transport of such shipments, which are not covered

by the above paragraphs, shall be charged to the senders.

!e High Contracting Parties shall endeavour to reduce, so far as possible,

the charges for telegrams sent by internees, or addressed to them.

Article 111

Should military operations prevent the Powers concerned from ful%lling their

obligation to ensure the conveyance of the mail and relief shipments provided for

in Articles 106,107, 108 and 113, the Protecting Powers concerned, the Interna-

tional Committee of the Red Cross or any other organization duly approved by

the Parties to the con"ict may undertake the conveyance of such shipments by

suitable means (rail, motor vehicles, vessels or aircra#, etc.). For this purpose, the

High Contracting Parties shall endeavour to supply them with such transport,

and to allow its circulation, especially by granting the necessary safe-conducts.

Such transport may also be used to convey:

a) correspondence, lists and reports exchanged between the Central

Information Agency referred to in Article 140 and the National Bu-

reaux referred to in Article 136;

b) correspondence and reports relating to internees which the Protect-

ing Powers, the International Committee of the Red Cross or any

other organization assisting the internees exchange either with their

own delegates or with the Parties to the con"ict.

!ese provisions in no way detract from the right of any Party to the con"ict

to arrange other means of transport if it should so prefer, nor preclude the

granting of safe-conducts, under mutually agreed conditions, to such means

of transport.

3457


!e costs occasioned by the use of such means of transport shall be borne, in

proportion to the importance of the shipments, by the Parties to the con"ict

whose nationals are bene%ted thereby.

Article 112

!e censoring of correspondence addressed to internees or despatched by

them shall be done as quickly as possible.

!e examination of consignments intended for internees shall not be carried

out under conditions that will expose the goods contained in them to deteriora-

tion. It shall be done in the presence of the addressee, or of a fellow-internee

duly delegated by him. !e delivery to internees of individual or collective con-

signments shall not be delayed under the pretext of di&culties of censorship.

Any prohibition of correspondence ordered by the Parties to the con"ict ei-

ther for military or political reasons, shall be only temporary and its duration

shall be as short as possible.

Article 113

!e Detaining Powers shall provide all reasonable facilities for the transmis-

sion, through the Protecting Power or the Central Agency provided for in

Article 140, or as otherwise required, of wills, powers of attorney, letters of au-

thority, or any other documents intended for internees or despatched by them.

In all cases the Detaining Powers shall facilitate the execution and authentica-

tion in due legal form of such documents on behalf of internees, in particular

by allowing them to consult a lawyer.

Article 114

!e Detaining Power shall a$ord internees all facilities to enable them to

manage their property, provided this is not incompatible with the conditions

of internment and the law which is applicable. For this purpose, the said Pow-

er may give them permission to leave the place of internment in urgent cases

and if circumstances allow.

Article 115

In all cases where an internee is a party to proceedings in any court, the De-

taining Power shall, if he so requests, cause the court to be informed of his

detention and shall, within legal limits, ensure that all necessary steps are

taken to prevent him from being in any way prejudiced, by reason of his in-

ternment, as regards the preparation and conduct of his case or as regards the

execution of any judgment of the court.

Censorship

and

examination

Execution

and

transmission

of legal

documents

Management

of property

Facilities for

preparation

and conduct

of cases

3456


General

provisions.

Applicable

legislation

Penalties

Visits

Article 116

Every internee shall be allowed to receive visitors, especially near relatives, at

regular intervals and as frequently as possible.

As far as is possible, internees shall be permitted to visit their homes in urgent

cases, particularly in cases of death or serious illness of relatives.

CHAPTER IX

Penal and Disciplinary Sanctions

Article 117

Subject to the provisions of the present Chapter, the laws in force in the terri-

tory in which they are detained will continue to apply to internees who com-

mit o$ences during internment.

If general laws, regulations or orders declare acts committed by internees to be

punishable, whereas the same acts are not punishable when committed by per-

sons who are not internees, such acts shall entail disciplinary punishments only.

No internee may be punished more than once for the same act, or on the

same count.

Article 118

!e courts or authorities shall in passing sentence take as far as possible into

account the fact that the defendant is not a national of the Detaining Power.

!ey shall be free to reduce the penalty prescribed for the o$ence with which

the internee is charged and shall not be obliged, to this end, to apply the mini-

mum sentence prescribed.

Imprisonment in premises without daylight, and, in general, all forms of cru-

elty without exception are forbidden.

Internees who have served disciplinary or judicial sentences shall not be

treated di$erently from other internees.

!e duration of preventive detention undergone by an internee shall be de-

ducted from any disciplinary or judicial penalty involving con%nement to

which he may be sentenced.

Internee Committees shall be informed of all judicial proceedings instituted

against internees whom they represent, and of their result.

3455


Article 119

!e disciplinary punishments applicable to internees shall be the following:

1) A %ne which shall not exceed 50 per cent of the wages which the internee

would otherwise receive under the provisions of Article 95 during a pe-

riod of not more than thirty days.

2) Discontinuance of privileges granted over and above the treatment pro-

vided for by the present Convention.

3) Fatigue duties, not exceeding two hours daily, in connection with the

maintenance of the place of internment.

4) Con%nement.

In no case shall disciplinary penalties be inhuman, brutal or dangerous for

the health of internees. Account shall be taken of the internee’s age, sex and

state of health.

!e duration of any single punishment shall in no case exceed a maximum of

thirty consecutive days, even if the internee is answerable for several breaches

of discipline when his case is dealt with, whether such breaches are connected

or not.

Article 120

Internees who are recaptured a#er having escaped or when attempting to es-

cape, shall be liable only to disciplinary punishment in respect of this act,

even if it is a repeated o$ence.

Article 118, paragraph 3, notwithstanding, internees punished as a result of

escape or attempt to escape, may be subjected to special surveillance, on con-

dition that such surveillance does not a$ect the state of their health, that it is

exercised in a place of internment and that it does not entail the abolition of

any of the safeguards granted by the present Convention.

Internees who aid and abet an escape, or attempt to escape, shall be liable on

this count to disciplinary punishment only.

Article 121

Escape, or attempt to escape, even if it is a repeated o$ence, shall not be

deemed an aggravating circumstance in cases where an internee is prosecuted

for o$ences committed during his escape.

!e Parties to the con"ict shall ensure that the competent authorities exercise

leniency in deciding whether punishment in"icted for an o$ence shall be of a

disciplinary or judicial nature, especially in respect of acts committed in con-

nection with an escape, whether successful or not.

Disciplinary

punishments

Escapes

Connected

o"ences

3454


Investi-

gations.

Con!nement

awaiting

hearing

Competent

authorities.

Procedure

Premises for

disciplinary

punishments

Article 122

Acts which constitute o$ences against discipline shall be investigated imme-

diately. !is rule shall be applied, in particular, in cases of escape or attempt to

escape. Recaptured internees shall be handed over to the competent authori-

ties as soon as possible.

In case of o$ences against discipline, con%nement awaiting trial shall be reduced

to an absolute minimum for all internees, and shall not exceed fourteen days.

Its duration shall in any case be deducted from any sentence of con%nement.

!e provisions of Articles 124 and 125 shall apply to internees who are in

con%nement awaiting trial for o$ences against discipline.

Article 123

Without prejudice to the competence of courts and higher authorities, dis-

ciplinary punishment may be ordered only by the commandant of the place

of internment, or by a responsible o&cer or o&cial who replaces him, or to

whom he has delegated his disciplinary powers.

Before any disciplinary punishment is awarded, the accused internee shall be

given precise information regarding the o$ences of which he is accused, and

given an opportunity of explaining his conduct and of defending himself. He

shall be permitted, in particular, to call witnesses and to have recourse, if neces-

sary, to the services of a quali%ed interpreter. !e decision shall be announced

in the presence of the accused and of a member of the Internee Committee.

!e period elapsing between the time of award of a disciplinary punishment

and its execution shall not exceed one month.

When an internee is awarded a further disciplinary punishment, a period of

at least three days shall elapse between the execution of any two of the pun-

ishments, if the duration of one of these is ten days or more.

A record of disciplinary punishments shall be maintained by the comman-

dant of the place of internment and shall be open to inspection by representa-

tives of the Protecting Power.

Article 124

Internees shall not in any case be transferred to penitentiary establishments

(prisons, penitentiaries, convict prisons, etc.) to undergo disciplinary punish-

ment therein.

!e premises in which disciplinary punishments are undergone shall con-

form to sanitary requirements; they shall in particular be provided with ad-

equate bedding. Internees undergoing punishment shall be enabled to keep

themselves in a state of cleanliness.

3453


Women internees undergoing disciplinary punishment shall be con%ned in

separate quarters from male internees and shall be under the immediate su-

pervision of women.

Article 125

Internees awarded disciplinary punishment shall be allowed to exercise and

to stay in the open air at least two hours daily.

!ey shall be allowed, if they so request, to be present at the daily medical in-

spections. !ey shall receive the attention which their state of health requires

and, if necessary, shall be removed to the in%rmary of the place of internment

or to a hospital.

!ey shall have permission to read and write, likewise to send and receive let-

ters. Parcels and remittances of money, however, may be withheld from them

until the completion of their punishment; such consignments shall mean-

while be entrusted to the Internee Committee, who will hand over to the

in%rmary the perishable goods contained in the parcels.

No internee given a disciplinary punishment may be deprived of the bene%t

of the provisions of Articles 107 and 143 of the present Convention.

Article 126

!e provisions of Articles 71 to 76 inclusive shall apply, by analogy, to proceed-

ings against internees who are in the national territory of the Detaining Power.

CHAPTER X

Transfers of Internees

Article 127

!e transfer of internees shall always be e$ected humanely. As a general rule,

it shall be carried out by rail or other means of transport, and under condi-

tions at least equal to those obtaining for the forces of the Detaining Power

in their changes of station. If, as an exceptional measure, such removals have

to be e$ected on foot, they may not take place unless the internees are in a

%t state of health, and may not in any case expose them to excessive fatigue.

!e Detaining Power shall supply internees during transfer with drinking

water and food su&cient in quantity, quality and variety to maintain them

in good health, and also with the necessary clothing, adequate shelter and

the necessary medical attention. !e Detaining Power shall take all suitable

precautions to ensure their safety during transfer, and shall establish before

their departure a complete list of all internees transferred.

Essential

safeguards

Provisions

applicable

to judicial

proceedings

Conditions

3452


Wills. Death

certi!cates

Method

Sick, wounded or in%rm internees and maternity cases shall not be trans-

ferred if the journey would be seriously detrimental to them, unless their

safety imperatively so demands.

If the combat zone draws close to a place of internment, the internees in the

said place shall not be transferred unless their removal can be carried out in

adequate conditions of safety, or unless they are exposed to greater risks by

remaining on the spot than by being transferred.

When making decisions regarding the transfer of internees, the Detaining

Power shall take their interests into account and, in particular, shall not do

anything to increase the di&culties of repatriating them or returning them to

their own homes.

Article 128

In the event of transfer, internees shall be o&cially advised of their departure

and of their new postal address. Such noti%cation shall be given in time for

them to pack their luggage and inform their next of kin.

!ey shall be allowed to take with them their personal e$ects, and the cor-

respondence and parcels which have arrived for them. !e weight of such

baggage may be limited if the conditions of transfer so require, but in no case

to less than twenty-%ve kilograms per internee.

Mail and parcels addressed to their former place of internment shall be for-

warded to them without delay.

!e commandant of the place of internment shall take, in agreement with

the Internee Committee, any measures needed to ensure the transport of the

internees’ community property and of the luggage the internees are unable

to take with them in consequence of restrictions imposed by virtue of the

second paragraph.

CHAPTER XI

Deaths

Article 129

!e wills of internees shall be received for safekeeping by the responsible au-

thorities; and in the event of the death of an internee his will shall be trans-

mitted without delay to a person whom he has previously designated.

Deaths of internees shall be certi%ed in every case by a doctor, and a death

certi%cate shall be made out, showing the causes of death and the conditions

under which it occurred.

3451


An o&cial record of the death, duly registered, shall be drawn up in accor-

dance with the procedure relating thereto in force in the territory where the

place of internment is situated, and a duly certi%ed copy of such record shall

be transmitted without delay to the Protecting Power as well as to the Central

Agency referred to in Article 140.

Article 130

!e detaining authorities shall ensure that internees who die while interned

are honourably buried, if possible according to the rites of the religion to

which they belonged and that their graves are respected, properly maintained,

and marked in such a way that they can always be recognized.

Deceased internees shall be buried in individual graves unless unavoidable

circumstances require the use of collective graves. Bodies may be cremated

only for imperative reasons of hygiene, on account of the religion of the de-

ceased or in accordance with his expressed wish to this e$ect. In case of cre-

mation, the fact shall be stated and the reasons given in the death certi%cate

of the deceased. !e ashes shall be retained for safekeeping by the detaining

authorities and shall be transferred as soon as possible to the next of kin on

their request.

As soon as circumstances permit, and not later than the close of hostilities,

the Detaining Power shall forward lists of graves of deceased internees to the

Powers on whom the deceased internees depended, through the Information

Bureaux provided for in Article 136. Such lists shall include all particulars

necessary for the identi%cation of the deceased internees, as well as the exact

location of their graves.

Article 131

Every death or serious injury of an internee, caused or suspected to have been

caused by a sentry, another internee or any other person, as well as any death

the cause of which is unknown, shall be immediately followed by an o&cial

enquiry by the Detaining Power.

A communication on this subject shall be sent immediately to the Protecting

Power. !e evidence of any witnesses shall be taken, and a report including

such evidence shall be prepared and forwarded to the said Protecting Power.

If the enquiry indicates the guilt of one or more persons, the Detaining Power

shall take all necessary steps to ensure the prosecution of the person or per-

sons responsible.

Burial.

Cremation

Internees

killed or

injured

in special

circum-

stances

3450


Repatriation

and return to

last place of

residence

Costs

After the

close of

hostilities

CHAPTER XII

Release, Repatriation and Accommodation in Neutral Countries

Article 132

Each interned person shall be released by the Detaining Power as soon as the

reasons which necessitated his internment no longer exist.

!e Parties to the con"ict shall, moreover, endeavour during the course of

hostilities, to conclude agreements for the release, the repatriation, the return

to places of residence or the accommodation in a neutral country of certain

classes of internees, in particular children, pregnant women and mothers

with infants and young children, wounded and sick, and internees who have

been detained for a long time.

Article 133

Internment shall cease as soon as possible a#er the close of hostilities.

Internees in the territory of a Party to the con"ict, against whom penal

proceedings are pending for o$ences not exclusively subject to disciplinary

penalties, may be detained until the close of such proceedings and, if cir-

cumstances require, until the completion of the penalty. !e same shall apply

to internees who have been previously sentenced to a punishment depriving

them of liberty.

By agreement between the Detaining Power and the Powers concerned, com-

mittees may be set up a#er the close of hostilities, or of the occupation of

territories, to search for dispersed internees.

Article 134

!e High Contracting Parties shall endeavour, upon the close of hostilities

or occupation, to ensure the return of all internees to their last place of resi-

dence, or to facilitate their repatriation.

Article 135

!e Detaining Power shall bear the expense of returning released internees

to the places where they were residing when interned, or, if it took them into

custody while they were in transit or on the high seas, the cost of completing

their journey or of their return to their point of departure.

Where a Detaining Power refuses permission to reside in its territory to a

released internee who previously had his permanent domicile therein, such

Detaining Power shall pay the cost of the said internee’s repatriation. If, how-

ever, the internee elects to return to his country on his own responsibility or

in obedience to the Government of the Power to which he owes allegiance,

the Detaining Power need not pay the expenses of his journey beyond the

During

hostilities or

occupation

3449


point of his departure from its territory. !e Detaining Power need not pay

the costs of repatriation of an internee who was interned at his own request.

If internees are transferred in accordance with Article 45, the transferring and

receiving Powers shall agree on the portion of the above costs to be borne by

each.

!e foregoing shall not prejudice such special agreements as may be conclud-

ed between Parties to the con"ict concerning the exchange and repatriation

of their nationals in enemy hands.

SECTION V

Information bureaux and central agency

Article 136

Upon the outbreak of a con"ict and in all cases of occupation, each of the

Parties to the con"ict shall establish an o&cial Information Bureau respon-

sible for receiving and transmitting information in respect of the protected

persons who are in its power.

Each of the Parties to the con"ict shall, within the shortest possible period,

give its Bureau information of any measure taken by it concerning any pro-

tected persons who are kept in custody for more than two weeks, who are

subjected to assigned residence or who are interned. It shall, furthermore,

require its various departments concerned with such matters to provide the

aforesaid Bureau promptly with information concerning all changes pertain-

ing to these protected persons, as, for example, transfers, releases, repatria-

tions, escapes, admittances to hospitals, births and deaths.

Article 137

Each national Bureau shall immediately forward information concern-

ing protected persons by the most rapid means to the Powers of whom the

aforesaid persons are nationals, or to Powers in whose territory they resided,

through the intermediary of the Protecting Powers and likewise through the

Central Agency provided for in Article 140. !e Bureaux shall also reply to all

enquiries which may be received regarding protected persons.

Information Bureaux shall transmit information concerning a protected per-

son unless its transmission might be detrimental to the person concerned

or to his or her relatives. Even in such a case, the information may not be

withheld from the Central Agency which, upon being noti%ed of the circum-

stances, will take the necessary precautions indicated in Article 140.

All communications in writing made by any Bureau shall be authenticated by

a signature or a seal.

National

Bureaux

Transmission

of

information

3448


Forwarding

of personal

valuables

Central

Agency

Article 138

!e information received by the national Bureau and transmitted by it shall

be of such a character as to make it possible to identify the protected person

exactly and to advise his next of kin quickly. !e information in respect of

each person shall include at least his surname, %rst names, place and date of

birth, nationality, last residence and distinguishing characteristics, the %rst

name of the father and the maiden name of the mother, the date, place and

nature of the action taken with regard to the individual, the address at which

correspondence may be sent to him and the name and address of the person

to be informed.

Likewise, information regarding the state of health of internees who are seri-

ously ill or seriously wounded shall be supplied regularly and if possible every

week.

Article 139

Each national Information Bureau shall, furthermore, be responsible for col-

lecting all personal valuables le# by protected persons mentioned in Article

136, in particular those who have been repatriated or released, or who have

escaped or died; it shall forward the said valuables to those concerned, either

direct, or, if necessary, through the Central Agency. Such articles shall be sent

by the Bureau in sealed packets which shall be accompanied by statements

giving clear and full identity particulars of the person to whom the articles

belonged, and by a complete list of the contents of the parcel. Detailed records

shall be maintained of the receipt and despatch of all such valuables.

Article 140

A Central Information Agency for protected persons, in particular for intern-

ees, shall be created in a neutral country. !e International Committee of the

Red Cross shall, if it deems necessary, propose to the Powers concerned the

organization of such an Agency, which may be the same as that provided for

in Article 123 of the Geneva Convention relative to the Treatment of Prison-

ers of War of August 12, 1949.

!e function of the Agency shall be to collect all information of the type

set forth in Article 136 which it may obtain through o&cial or private chan-

nels and to transmit it as rapidly as possible to the countries of origin or of

residence of the persons concerned, except in cases where such transmissions

might be detrimental to the persons whom the said information concerns, or

to their relatives. It shall receive from the Parties to the con"ict all reasonable

facilities for e$ecting such transmissions.

Particulars

required

3447


!e High Contracting Parties, and in particular those whose nationals bene%t

by the services of the Central Agency, are requested to give the said Agency

the %nancial aid it may require.

!e foregoing provisions shall in no way be interpreted as restricting the hu-

manitarian activities of the International Committee of the Red Cross and of

the relief Societies described in Article 142.

Article 141

!e national Information Bureaux and the Central Information Agency shall

enjoy free postage for all mail, likewise the exemptions provided for in Article

110, and further, so far as possible, exemption from telegraphic charges or, at

least, greatly reduced rates.

PART IV

EXECUTION OF THE CONVENTION

SECTION I

General provisions

Article 142

Subject to the measures which the Detaining Powers may consider essential

to ensure their security or to meet any other reasonable need, the representa-

tives of religious organizations, relief societies, or any other organizations as-

sisting the protected persons, shall receive from these Powers, for themselves

or their duly accredited agents, all facilities for visiting the protected persons,

for distributing relief supplies and material from any source, intended for

educational, recreational or religious purposes, or for assisting them in or-

ganizing their leisure time within the places of internment. Such societies or

organizations may be constituted in the territory of the Detaining Power, or

in any other country, or they may have an international character.

!e Detaining Power may limit the number of societies and organizations

whose delegates are allowed to carry out their activities in its territory and

under its supervision, on condition, however, that such limitation shall not

hinder the supply of e$ective and adequate relief to all protected persons.

!e special position of the International Committee of the Red Cross in this

%eld shall be recognized and respected at all times.

Exemption

from charges

Relief

societies

and other

organizations

3446


Dissemina-

tion of the

Convention

Translations.

Rules of

application

II. Grave

breaches

Article 143

Representatives or delegates of the Protecting Powers shall have permission

to go to all places where protected persons are, particularly to places of in-

ternment, detention and work.

!ey shall have access to all premises occupied by protected persons and shall

be able to interview the latter without witnesses, personally or through an

interpreter.

Such visits may not be prohibited except for reasons of imperative military

necessity, and then only as an exceptional and temporary measure. !eir du-

ration and frequency shall not be restricted.

Such representatives and delegates shall have full liberty to select the places

they wish to visit. !e Detaining or Occupying Power, the Protecting Power

and when occasion arises the Power of origin of the persons to be visited,

may agree that compatriots of the internees shall be permitted to participate

in the visits.

!e delegates of the International Committee of the Red Cross shall also en-

joy the above prerogatives. !e appointment of such delegates shall be sub-

mitted to the approval of the Power governing the territories where they will


Article 144

!e High Contracting Parties undertake, in time of peace as in time of war, to

disseminate the text of the present Convention as widely as possible in their

respective countries, and, in particular, to include the study thereof in their

programmes of military and, if possible, civil instruction, so that the princi-

ples thereof may become known to the entire population.

Any civilian, military, police or other authorities, who in time of war assume

responsibilities in respect of protected persons, must possess the text of the

Convention and be specially instructed as to its provisions.

Article 145

!e High Contracting Parties shall communicate to one another through the

Swiss Federal Council and, during hostilities, through the Protecting Powers,

the o&cial translations of the present Convention, as well as the laws and

regulations which they may adopt to ensure the application thereof.

Article 146

!e High Contracting Parties undertake to enact any legislation necessary to

provide e$ective penal sanctions for persons committing, or ordering to be

committed, any of the grave breaches of the present Convention de%ned in

the following Article.

Supervision

3445


Each High Contracting Party shall be under the obligation to search for per-

sons alleged to have committed, or to have ordered to be committed, such

grave breaches, and shall bring such persons, regardless of their nationality,

before its own courts. It may also, if it prefers, and in accordance with the

provisions of its own legislation, hand such persons over for trial to another

High Contracting Party concerned, provided such High Contracting Party

has made out a prima facie case.

Each High Contracting Party shall take measures necessary for the suppres-

sion of all acts contrary to the provisions of the present Convention other

than the grave breaches de%ned in the following Article.

In all circumstances, the accused persons shall bene%t by safeguards of prop-

er trial and defence, which shall not be less favourable than those provided

by Article 105 and those following of the Geneva Convention relative to the

Treatment of Prisoners of War of August 12, 1949.

Article 147

Grave breaches to which the preceding Article relates shall be those involving

any of the following acts, if committed against persons or property protect-

ed by the present Convention: wilful killing, torture or inhuman treatment,

including biological experiments, wilfully causing great su$ering or serious

injury to body or health, unlawful deportation or transfer or unlawful con-

%nement of a protected person, compelling a protected person to serve in the

forces of a hostile Power, or wilfully depriving a protected person of the rights

of fair and regular trial prescribed in the present Convention, taking of hos-

tages and extensive destruction and appropriation of property, not justi%ed

by military necessity and carried out unlawfully and wantonly.

Article 148

No High Contracting Party shall be allowed to absolve itself or any other

High Contracting Party of any liability incurred by itself or by another High

Contracting Party in respect of breaches referred to in the preceding Article.

Article 149

At the request of a Party to the con"ict, an enquiry shall be instituted, in a

manner to be decided between the interested Parties, concerning any alleged

violation of the Convention.

If agreement has not been reached concerning the procedure for the enquiry,

the Parties should agree on the choice of an umpire who will decide upon the

procedure to be followed. Once the violation has been established, the Parties

to the con"ict shall put an end to it and shall repress it with the least possible

delay.

Penal

sanctions

I. General

observations

III. Responsibi-

lities of the

Contracting

Parties

Enquiry

procedure

3444


Relation with

the Hague

Conventions

Accession

Coming

into force

SECTION II

Final provisions

Article 150

!e present Convention is established in English and in French. Both texts

are equally authentic.

!e Swiss Federal Council shall arrange for o&cial translations of the

Convention to be made in the Russian and Spanish languages.

Article 151

!e present Convention, which bears the date of this day, is open to signature

until February 12, 1950, in the name of the Powers represented at the Confer-

ence which opened at Geneva on April 21, 1949.

Article 152

!e present Convention shall be rati%ed as soon as possible and the rati%ca-

tions shall be deposited at Berne.

A record shall be drawn up of the deposit of each instrument of rati%cation

and certi%ed copies of this record shall be transmitted by the Swiss Federal

Council to all the Powers in whose name the Convention has been signed, or

whose accession has been noti%ed.

Article 153

!e present Convention shall come into force six months a#er not less than

two instruments of rati%cation have been deposited.

!erea#er, it shall come into force for each High Contracting Party six

months a#er the deposit of the instrument of rati%cation.

Article 154

In the relations between the Powers who are bound by the Hague Conven-

tions respecting the Laws and Customs of War on Land, whether that of July

29, 1899, or that of October 18, 1907, and who are parties to the present Con-

vention, this last Convention shall be supplementary to Sections II and III of

the Regulations annexed to the above-mentioned Conventions of !e Hague.

Article 155

From the date of its coming into force, it shall be open to any Power in whose

name the present Convention has not been signed, to accede to this Convention.

Languages

Signature

Rati!cation

3443


Article 156

Accessions shall be noti%ed in writing to the Swiss Federal Council, and shall

take e$ect six months a#er the date on which they are received.

!e Swiss Federal Council shall communicate the accessions to all the Powers

in whose name the Convention has been signed, or whose accession has been

noti%ed.

Article 157

!e situations provided for in Articles 2 and 3 shall give immediate e$ect to

rati%cations deposited and accessions noti%ed by the Parties to the con"ict

before or a#er the beginning of hostilities or occupation. !e Swiss Federal

Council shall communicate by the quickest method any rati%cations or acces-

sions received from Parties to the con"ict.

Article 158

Each of the High Contracting Parties shall be at liberty to denounce the

present Convention.

!e denunciation shall be noti%ed in writing to the Swiss Federal Council,

which shall transmit it to the Governments of all the High Contracting Parties.

!e denunciation shall take e$ect one year a#er the noti%cation thereof has

been made to the Swiss Federal Council. However, a denunciation of which

noti%cation has been made at a time when the denouncing Power is involved

in a con"ict shall not take e$ect until peace has been concluded, and until

a#er operations connected with the release, repatriation and re-establishment

of the persons protected by the present Convention have been terminated.

!e denunciation shall have e$ect only in respect of the denouncing Power.

It shall in no way impair the obligations which the Parties to the con"ict shall

remain bound to ful%l by virtue of the principles of the law of nations, as they

result from the usages established among civilized peoples, from the laws of

humanity and the dictates of the public conscience.

Denunciation

Immediate

e"ect

Noti!cation

of accessions

3442


Article 159

!e Swiss Federal Council shall register the present Convention with the Sec-

retariat of the United Nations. !e Swiss Federal Council shall also inform

the Secretariat of the United Nations of all rati%cations, accessions and de-

nunciations received by it with respect to the present Convention.

In witness whereof the undersigned, having deposited their respective

full powers, have signed the present Convention.

Done at Geneva this twel#h day of August 1949, in the English and French

languages. !e original shall be deposited in the Archives of the Swiss

Confederation. !e Swiss Federal Council shall transmit certi%ed copies

thereof to each of the signatory and acceding States.

Registration

with

the United

Nations

3441

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10/25/11 3:29 PMUnited Nations Human Rights Website - Treaty Bodies Database - Document - General Comments -

Page 1 of 2http://www.unhchr.ch/tbs/doc.nsf/0/84ab9690ccd81fc7c12563ed0046fae3

General Comment No. 06: The right to life (art. 6) : . 04/30/1982.CCPR General Comment No. 6. (General Comments)

Convention Abbreviation: CCPRGENERAL COMMENT 6

The right to life

(Article 6)

(Sixteenth session, 1982)

1. The right to life enunciated in article 6 of the Covenant has been dealt with in all State reports. It is thesupreme right from which no derogation is permitted even in time of public emergency which threatens thelife of the nation (art. 4). However, the Committee has noted that quite often the information givenconcerning article 6 was limited to only one or other aspect of this right. It is a right which should not beinterpreted narrowly.

2. The Committee observes that war and other acts of mass violence continue to be a scourge of humanityand take the lives of thousands of innocent human beings every year. Under the Charter of the United Nationsthe threat or use of force by any State against another State, except in exercise of the inherent right of self-defence, is already prohibited. The Committee considers that States have the supreme duty to prevent wars,acts of genocide and other acts of mass violence causing arbitrary loss of life. Every effort they make to avertthe danger of war, especially thermonuclear war, and to strengthen international peace and security wouldconstitute the most important condition and guarantee for the safeguarding of the right to life. In this respect,the Committee notes, in particular, a connection between article 6 and article 20, which states that the lawshall prohibit any propaganda for war (para. 1) or incitement to violence (para. 2) as therein described.

3. The protection against arbitrary deprivation of life which is explicitly required by the third sentence ofarticle 6 (1) is of paramount importance. The Committee considers that States parties should take measuresnot only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing bytheir own security forces. The deprivation of life by the authorities of the State is a matter of the utmostgravity. Therefore, the law must strictly control and limit the circumstances in which a person may bedeprived of his life by such authorities.

4. States parties should also take specific and effective measures to prevent the disappearance of individuals,something which unfortunately has become all too frequent and leads too often to arbitrary deprivation oflife. Furthermore, States should establish effective facilities and procedures to investigate thoroughly cases ofmissing and disappeared persons in circumstances which may involve a violation of the right to life.

3422

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Page 2 of 2http://www.unhchr.ch/tbs/doc.nsf/0/84ab9690ccd81fc7c12563ed0046fae3

5. Moreover, the Committee has noted that the right to life has been too often narrowly interpreted. Theexpression "inherent right to life" cannot properly be understood in a restrictive manner, and the protection ofthis right requires that States adopt positive measures. In this connection, the Committee considers that itwould be desirable for States parties to take all possible measures to reduce infant mortality and to increaselife expectancy, especially in adopting measures to eliminate malnutrition and epidemics.

6. While it follows from article 6 (2) to (6) that States parties are not obliged to abolish the death penaltytotally they are obliged to limit its use and, in particular, to abolish it for other than the "most serious crimes".Accordingly, they ought to consider reviewing their criminal laws in this light and, in any event, are obligedto restrict the application of the death penalty to the "most serious crimes". The article also refers generally toabolition in terms which strongly suggest (paras. 2 (2) and (6)) that abolition is desirable. The Committeeconcludes that all measures of abolition should be considered as progress in the enjoyment of the right to lifewithin the meaning of article 40, and should as such be reported to the Committee. The Committee notes thata number of States have already abolished the death penalty or suspended its application. Nevertheless,States' reports show that progress made towards abolishing or limiting the application of the death penalty isquite inadequate.

7. The Committee is of the opinion that the expression "most serious crimes" must be read restrictively tomean that the death penalty should be a quite exceptional measure. It also follows from the express terms ofarticle 6 that it can only be imposed in accordance with the law in force at the time of the commission of thecrime and not contrary to the Covenant. The procedural guarantees therein prescribed must be observed,including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimumguarantees for the defence, and the right to review by a higher tribunal. These rights are applicable in additionto the particular right to seek pardon or commutation of the sentence.

©1996-2001

Office of the United Nations High Commissioner for Human Rights

Geneva, Switzerland

3421

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3410

ICRC

Customary International

Humanitarian Law

Volume I: Rules

Jean-Marie Henckaerts

and Louise Doswald-Beck

3409

international committee of the red cross

CUSTOMARYINTERNATIONALHUMANITARIAN LAW

VOLUME I

RULES

Jean-Marie Henckaerts and Louise Doswald-Beck

With contributions by Carolin Alvermann,

Knut Dormann and Baptiste Rolle

3408

C© International Committee of the Red Cross 2005

and to the provisions of relevant collective licensing agreements,no reproduction of any part may take place withoutthe written permission of Cambridge University Press.

First published 2005

Printed in the United Kingdom at the University Press, Cambridge

A catalogue record for this publication is available from the British Library

cambridge university press

Cambridge University PressThe Edinburgh Building, Cambridge, CB2 8RU, UK

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, Sa! !! Paulo, Delhio

This publication is in copyright. Subject to statutory exception

Published in the United States of America by Cambridge University Press, New York

www.cambridge.org

Information on this title:www.cambridge.org/9780521005289

ISBN 978-0-521-80899-6 hardbackISBN 978-0-521-00528-9 paperback

Reprinted with corrections 2009Third printing 2007

Cambridge University Press has no responsibility for the persistence or accuracy

and does not guarantee that any content on such websites is, or will remain,

accurate or appropriate. Information regarding prices, travel timetables and otherfactual information given in this work are correct at the time of first printing

but Cambridge University Press does not guarantee the accuracy of such information thereafter.

of URLs for external or third-party internet websites referred to in this publication,

3407

344 fundamental guarantees

Rule 99. Arbitrary deprivation of liberty is prohibited.

Practice

Volume II, Chapter 32, Section L.

Summary

State practice establishes this rule as a norm of customary international law

applicable in both international and non-international armed conflicts. It

should be noted that common Article 3 of the Geneva Conventions, as well

as both Additional Protocols I and II, require that all civilians and persons hors

de combat be treated humanely (see Rule 87), whereas arbitrary deprivation of

liberty is not compatible with this requirement.

The concept that detention must not be arbitrary is part of both interna-

tional humanitarian law and human rights law. Although there are differences

between these branches of international law, both international humanitarian

law and human rights law aim to prevent arbitrary detention by specifying the

grounds for detention based on needs, in particular security needs, and by pro-

viding for certain conditions and procedures to prevent disappearance and to

supervise the continued need for detention.

International armed conflicts

Grounds for detentionRules on the reasons for which persons may be deprived of their liberty bya party to an international armed conflict are to be found in all four GenevaConventions:268

r The First Geneva Convention regulates the detention or retention of medicaland religious personnel.269

r The Second Geneva Convention regulates the detention or retention of medicaland religious personnel of hospital ships.270

r The Third Geneva Convention is based on the long-standing custom that pris-oners of war may be interned for the duration of active hostilities.271 Thereare additional conditions in the Third Geneva Convention with respect todisciplinary punishments, judicial investigations and repatriation of seriouslywounded or sick prisoners of war.272

r The Fourth Geneva Convention specifies that a civilian may only be internedor placed in assigned residence if “the security of the Detaining Power makes

268 Deprivation of liberty by neutral States is governed by Hague Conventions (V) and (XIII). Arti-cles 11, 13 and 14 of Hague Convention (V) state the grounds for detention of belligerent personsby neutral States. Article 24 of Hague Convention (XIII) states the grounds for the detention ofbelligerent ships, their officers and crew by neutral States.

269 First Geneva Convention, Articles 28, 30 and 32.270 Second Geneva Convention, Articles 36 and 37.271 Third Geneva Convention, Articles 21 and 118.272 Third Geneva Convention, Articles 90, 95, 103 and 109.

3406

Rule 99 345

it absolutely necessary” (Article 42) or, in occupied territory, for “imperativereasons of security” (Article 78).273 In the Delalic case, the International Crim-inal Tribunal for the Former Yugoslavia interpreted Article 42 as permittinginternment only if there are “serious and legitimate reasons” to think that theinterned persons may seriously prejudice the security of the detaining powerby means such as sabotage or espionage.274

The grounds for initial or continued detention have been limited to valid

needs, as evidenced by the list above. For example, the detention of “enemy

aliens” has been restricted in the Fourth Geneva Convention to those “abso-

lutely necessary” for security purposes, and the Third Geneva Convention

requires the repatriation of seriously wounded and sick prisoners of war because

they are no longer likely to take part in hostilities against the Detaining Power.

Procedural requirements

In addition to valid grounds, certain procedures must be followed in order for a

deprivation of liberty to be lawful. Article 43 of the Fourth Geneva Convention

provides that any person interned or placed in assigned residence is entitled to

have such decision reconsidered as soon as possible by an appropriate court or

administrative board and if the decision is maintained to have it reviewed peri-

odically, and a least twice yearly.275 Article 78 of the Fourth Geneva Convention

provides that decisions regarding assigned residence or internment in occupied

territory must be made according to a regular procedure to be prescribed by the

occupying power in accordance with the provisions of the Convention. It also

provides that such decision is subject to an appeal to be decided with the least

possible delay. If the appeal is upheld it must be subject to periodical review,

if possible every six months, by a competent body set up by the occupying

power.276 These procedures are also set forth in a number of military manu-

als.277 In addition, the Third Geneva Convention requires the examination of

sick or wounded prisoners of war by a Mixed Medical Commission in order

to establish whether they should be repatriated or accommodated in neutral

countries.278

Apart from the specific provisions of Articles 43 and 78 of the Fourth Geneva

Convention, the Geneva Conventions provide for the appointment of Protect-

ing Powers to try and prevent arbitrary detention and the ill-treatment that

often accompanies such detention. The Protecting Powers must be impartial

supervisors who scrutinise the implementation of the Conventions in order to

273 Fourth Geneva Convention, Article 42 (cited in Vol. II, Ch. 32, § 2516) and Article 78 (ibid., §2663).

274 ICTY, Delalic case, Judgement (ibid., § 2643).275 Fourth Geneva Convention, Article 43, first paragraph (ibid., § 2746).276 Fourth Geneva Convention, Article 78 (ibid., §§ 2663 and 2747).277 See, e.g., the military manuals of Argentina (ibid., §§ 2755–2756), Canada (ibid., § 2757),

Germany (ibid., § 2759), New Zealand (ibid., § 2760), United Kingdom (ibid., § 2761) andUnited States (ibid., §§ 2762–2763).

278 Third Geneva Convention, Articles 110 and 112.

3405

346 fundamental guarantees

safeguard the interests of the parties to the conflict.279 In particular, a Detaining

Power must immediately inform the Protecting Powers, as well as the Infor-

mation Bureau and Central Information Agency, of the capture of prisoners of

war or the internment of civilians.280

Furthermore, Additional Protocol I provides that “any person arrested,

detained or interned for actions related to the armed conflict shall be informed

promptly, in a language he understands, of the reasons why these measures

have been taken”.281 This rule is set forth in a number of military manuals.282

Detention that is not in conformity with the various rules provided by the

Geneva Conventions is referred to as “unlawful confinement”. “Unlawful con-

finement” of civilians is a grave breach of the Fourth Geneva Convention.283

“Unlawful confinement” of a person protected under the Geneva Conventions

is a grave breach under the Statute of the International Criminal Court, the

Statute of the International Criminal Tribunal for the Former Yugoslavia and

UNTAET Regulation 2000/15 for East Timor.284 The Elements of Crimes for

the International Criminal Court states that unlawful confinement may be in

relation to any person protected under one of the Geneva Conventions and not

only in relation to civilians.285

The military manuals of many States prohibit unlawful confinement.286

This prohibition is also contained in the legislation of numerous States.287

The terminology used in these manuals and legislation varies: unlawful/illegal

confinement, unlawful/illegal detention, arbitrary detention, unnecessary

detention, arrest or deprivation of liberty contrary to international law, unjus-

tified restriction of liberty and indiscriminate mass arrests. The prohibition

of unlawful detention was also upheld in several cases after the Second World

War.288

279 First Geneva Convention, Articles 8 and 10; Second Geneva Convention, Articles 8 and 10;Third Geneva Convention, Articles 8 and 10; Fourth Geneva Convention, Articles 9 and 11.

280 Third Geneva Convention, Articles 69 and 122–123; Fourth Geneva Convention, Articles 43,105 and 136–137.

281 Additional Protocol I, Article 75(3) (adopted by consensus) (cited in Vol. II, Ch. 32, § 2693).282 See, e.g., the military manuals of Canada (ibid., § 2697), New Zealand (ibid., § 2699), Sweden

(ibid., § 2700) and Switzerland (ibid., § 2701).283 Fourth Geneva Convention, Article 147 (ibid., § 2517).284 ICC Statute, Article 8(2)(a)(vii) (ibid., § 2523); ICTY Statute, Article 2(g) (ibid., § 2529);

UNTAET Regulation 2000/15, Section 6(1)(a)(vii) (ibid., § 2534).285 Elements of Crimes for the ICC, Definition of unlawful confinement as a war crime (ICC

Statute, Article 8(2)(a)(vii)).286 See, e.g., the military manuals of Argentina (cited in Vol. II, Ch. 32, § 2535), Australia (ibid.,

§ 2536), Canada (ibid., § 2537), Croatia (ibid., § 2539), France (ibid., §§ 2541–2542), Germany(ibid., § 2543), Hungary (ibid., § 2544), Netherlands (ibid., § 2545), New Zealand (ibid., § 2546),Nigeria (ibid., § 2548), South Africa (ibid., § 2549), Switzerland (ibid., § 2550), Uganda (ibid.,§ 2551), United Kingdom (ibid., § 2552) and United States (ibid., § 2553).

287 See, e.g., the legislation (ibid., §§ 2554–2625).288 See, e.g., Netherlands, Temporary Court-Martial at Makassar, Motomura case and Notomi Sueo

case (ibid., § 2626); Netherlands, Special Court (War Criminals) at The Hague and Special Courtof Cassation, Rauter case (ibid., § 2626); Netherlands Special Court in Amsterdam and Special

3404

452 persons deprived of their liberty

The persons referred to may continue to be deprived of their liberty if penal

proceedings are pending against them or if they are serving a sentence lawfully

imposed.

Practice

Volume II, Chapter 37, Section K.

Summary

State practice establishes these rules as norms of customary international law

applicable in international (A and B) and non-international (C) armed conflicts

respectively. Refusal to release detainees when the reason for their detention

has ceased to exist would violate the prohibition of arbitrary deprivation of

liberty (see Rule 99) and may also constitute hostage-taking (see Rule 96).

International armed conflicts

The Hague Regulations provide for the obligation to repatriate prisoners of

war as soon as possible after the conclusion of peace.151 The Third Geneva

Convention requires the release and repatriation of prisoners of war without

delay after the cessation of active hostilities.152

According to Article 132 of the Fourth Geneva Convention, each interned

person must be released as soon as the reasons for internment end, while Arti-

cle 133 provides that, in any event, internment must cease as soon as possible

after the close of hostilities. Article 132 encourages the parties to the conflict

to conclude, during the course of hostilities, agreements for the release, repatri-

ation, return to places of residence or the accommodation in a neutral country

of certain classes of internees with special needs (children, pregnant women

and mothers with infants and young children, wounded and sick, and internees

who have been detained for a long time).153

An “unjustifiable delay in the repatriation of prisoners of war or civilians”

constitutes a grave breach of Additional Protocol I.154

The basic obligation to repatriate prisoners without delay upon the close of

active hostilities is recognised in a number of other treaties.155

151 Hague Regulations, Article 20 (ibid., § 604).152 Third Geneva Convention, Articles 118 (ibid., § 607).153 Fourth Geneva Convention, Article 132 (ibid., § 608) and Article 133 (ibid., § 609).154 Additional Protocol I, Article 85(4)(b) (adopted by consensus) (ibid., § 615).155 Panmunjom Armistice Agreement, Article III(51)(a) (ibid., § 611); Protocol to the Agreement on

Ending the War and Restoring Peace in Viet-Nam concerning the Return of Captured MilitaryPersonnel and Foreign Civilians and Captured and Detained Vietnamese Civilian Personnel,Articles 4 and 6 (ibid., § 613); Agreement on Repatriation of Detainees between Bangladesh,India and Pakistan (ibid., § 614); CIS Agreement on the Protection of Victims of Armed

3403

Rule 128 453

Numerous military manuals specify the obligation to repatriate prisoners

after the end of (active) hostilities.156 The unjustifiable delay in the repatriation

of prisoners is an offence under the legislation of numerous States.157 The rule

is further supported by reported practice.158 It has been reaffirmed on many

occasions by the United Nations and other international organisations.159

On several occasions, the International Conference of the Red Cross and Red

Crescent has called for respect for this rule. For example, the Plan of Action

for the years 2000–2003, adopted by the 27th International Conference in 1999,

called on all the parties to an armed conflict to ensure that:

prisoners of war are released and repatriated without delay after the cessation ofactive hostilities, unless subject to due judicial process; the prohibition of tak-ing hostages is strictly respected; the detention of prisoners and internees is notprolonged for bargaining purposes which practice is prohibited by the GenevaConventions.160

Non-international armed conflicts

The practice establishing the customary nature of this rule in non-international

armed conflicts consists of numerous agreements concluded, for example, in

Conflicts, Article 4 (ibid., § 618); Agreement on the Military Aspects of the Peace Settlementannexed to the Dayton Accords, Article IX (ibid., § 619); Peace Agreement between Ethiopiaand Eritrea, Article 2(1) and (2) (ibid., § 620).

156 See, e.g., the military manuals of Argentina (ibid., §§ 638–639), Australia (ibid., § 640),Cameroon (ibid., § 642), Canada (ibid., § 641), Colombia (ibid., § 643), Croatia (ibid., § 644),France (ibid., § 645), Germany (ibid., § 646), Hungary (ibid., § 647), Israel (ibid., § 648), Italy(ibid., § 649), Madagascar (ibid., § 650), Netherlands (ibid., § 651), New Zealand (ibid., § 653),Nigeria (ibid., § 654), South Africa (ibid., § 655), Spain (ibid., § 656), Switzerland (ibid., § 657),United Kingdom (ibid., §§ 658–659) and United States (ibid., §§ 660–661).

157 See, e.g., the legislation of Armenia (ibid., § 663), Australia (ibid., §§ 664–665), Azerbaijan(ibid., § 666), Bangladesh (ibid., § 667), Belarus (ibid., § 668), Belgium (ibid., § 669), Bosniaand Herzegovina (ibid., § 670), Canada (ibid., § 671), Cook Islands (ibid., § 672), Croatia (ibid.,§ 673), Cyprus (ibid., § 674), Czech Republic (ibid., § 675), Estonia (ibid., § 677), Georgia (ibid.,§ 678), Germany (ibid., § 679), Hungary (ibid., § 680), Ireland (ibid., § 681), Lithuania (ibid.,§ 684), Moldova (ibid., § 685), Netherlands (ibid., § 686), New Zealand (ibid., § 687), Niger(ibid., § 689), Norway (ibid., § 690), Slovakia (ibid., § 691), Slovenia (ibid., § 692); Spain (ibid.,§ 693), Tajikistan (ibid., § 694), United Kingdom (ibid., § 695), Yugoslavia (ibid., § 696) andZimbabwe (ibid., § 697); see also the draft legislation of Argentina (ibid., § 662), El Salvador(ibid., § 676), Jordan (ibid., § 682), Lebanon (ibid., § 683) and Nicaragua (ibid., § 688).

158 See, e.g., the reported practice of Botswana (ibid., § 701), Egypt (ibid., § 703) and Kuwait (ibid.,§ 709).

159 See, e.g., UN Security Council, Res. 968 (ibid., § 719); UN General Assembly, Res. 50/193(ibid., § 722); UN Commission on Human Rights, Res. 1996/71 (ibid., § 725) and Res. 1998/79(ibid., § 727); Council of Europe, Parliamentary Assembly, Rec. 1287 (ibid., § 736); Gulf Coop-

eration Council, Supreme Council, Final Communiques of the 12th, 13th, 14th, 15th and 16th

sessions (ibid., §§ 740–744); League of Arab States, Council, Res. 4938 (ibid., § 745), Res. 5169(ibid., § 747), Res. 5231 (ibid., § 746), Res. 5324 (ibid., § 747), Res. 5414 (ibid., § 748) andRes. 5635 (ibid., § 749); OIC, Conference of Foreign Ministers, Res. 1/6-EX (ibid., § 751); OSCE,Ministerial Council, Decision on the Minsk Process (ibid., § 752).

160 27th International Conference of the Red Cross and Red Crescent, Res. I (adopted by consensus)(ibid., § 756).

3402


the context of the conflicts in Afghanistan, Angola, Bosnia and Herzegovina,

Cambodia, Chechnya, El Salvador, Liberia, Mozambique and Rwanda.161 The

Esquipulas II Accords provide for the release by the “irregular forces of the coun-

try concerned” of all persons in their power simultaneously with the issuance

of amnesty decrees.162

Unjustifiable delay in the return home of detainees held in connection with

a non-international armed conflict is an offence under the legislation of some

States.163 There are also accounts of the release of persons detained in connec-

tion with non-international armed conflicts, for example, in Colombia, Nigeria

and Rwanda.164

This rule is supported by official statements and other practice, which praise

the releases of detainees when they occur, demand (further) releases or condemn

parties failing to cooperate in such releases.165

The United Nations and other international organisations have on various

occasions highlighted the importance of the release of detainees held in con-

nection with non-international armed conflicts, for example, in Afghanistan,

Angola, Bosnia and Herzegovina, Chechnya and Tajikistan.166 Armed opposi-

tion groups have also indicated that they wish to comply with this rule, some-

times prompted by their inability to detain prisoners in safety.167

Interpretation

As is evident from its formulation, this rule does not apply to persons against

whom criminal proceedings are pending nor to persons lawfully convicted and

serving a sentence in connection with the armed conflict. This is reflected

161 Afghan Peace Accord, Article 5 (ibid., § 635); Peace Accords between the Government of Angolaand UNITA, para. II.3 (ibid., § 627); Agreement between the Parties to the Conflict in Bosniaand Herzegovina on the Release and Transfer of Prisoners, Article 3(1) (ibid., § 631); Final Act ofthe Paris Conference on Cambodia, Articles 21–22 (ibid., § 626); N’Sele Cease-fire Agreement,Article 4 (ibid., § 633); Government of El Salvador-FMLN Agreement on Human Rights, para. 3(ibid., § 624); Cotonou Agreement on Liberia, Article 10 (ibid., § 634); General Peace Agreementfor Mozambique, Protocol IV, Part III (ibid., § 632); Moscow Agreement on a Cease-fire inChechnya, Article 2 (ibid., § 637).

162 Esquipulas II Accords (ibid., § 617).163 See, e.g., the legislation of Georgia (ibid., § 678), Germany (ibid., § 679) and Tajikistan (ibid.,

§ 694).164 See the practice of Colombia (ibid., § 702) and the reported practice of Nigeria (ibid., § 710)

and Rwanda (ibid., § 712).165 See, e.g., the statements of Bangladesh (ibid., § 700) and France (ibid., § 704), the practice of

the Philippines (ibid., § 711) and the reported practice of India (ibid., § 707) and United States(ibid., § 713).

166 See, e.g., UN Security Council, Res. 968 (ibid., § 719) and Statements by the President (ibid.,§§ 720–721); UN General Assembly, Res. 50/193 (ibid., § 722), UN Commission on HumanRights, Res. 1994/72 and 1995/89 (ibid., § 724), Res. 1996/71 (ibid., § 725), Res. 1998/79 (ibid.,§ 727) and Statement by the Chairman (ibid., § 728); European Parliament, Resolution on thesituation in Chechnya (ibid., § 739); League of Arab States, Council, Res. 5231 (ibid., § 746);OAU, Report of the Secretary-General on the situation in Angola (ibid., § 750).

167 See, e.g., the statement of FARC-EP (ibid., § 765) and the reported practice of the SPLM/A(ibid., § 766) and armed opposition groups (ibid., §§ 762–764).

3401

Rule 128 455

in a number of agreements.168 Hence, those lawfully convicted and serving a

sentence for reasons related to the armed conflict may remain in detention

following the end of hostilities but should be considered for an amnesty, unless

they are serving a sentence for a war crime (see Rule 159).

According to the Fourth Geneva Convention, no protected person may be

transferred to a country “where he or she may have reason to fear persecution

for his or her political opinions or religious beliefs”.169 While the Third Geneva

Convention does not contain a similar clause, practice since 1949 has developed

to the effect that in every repatriation in which the ICRC has played the role of

neutral intermediary, the parties to the conflict, whether international or non-

international, have accepted the ICRC’s conditions for participation, including

that the ICRC be able to check prior to repatriation (or release in case of a non-

international armed conflict), through an interview in private with the persons

involved, whether they wish to be repatriated (or released).170

Practice indicates that release often occurs under an agreement at the

end of a conflict based on bilateral exchange.171 Each phase of the release

process almost invariably involves the participation of a neutral intermedi-

ary, usually the ICRC, from negotiation of the release of persons to super-

vision of the release itself or even receipt of the former prisoners fol-

lowing their release. Practice stresses that the parties involved in such

an exchange must cooperate in good faith with the ICRC or other inter-

mediaries.172 Similar practice is also reported with regard to Angola,173

168 See, e.g., Agreement between the Parties to the Conflict in Bosnia and Herzegovina on theRelease and Transfer of Prisoners, Article 3(1); General Peace Agreement for Mozambique,Protocol IV, Part III (ibid., § 631).

169 Fourth Geneva Convention, Article 45, fourth paragraph (ibid., § 835).170 See, e.g., Agreement on the Military Aspects of the Peace Settlement annexed to the Dayton

Accords (ibid., § 823); Agreement between Croatia and the SFRY on the Exchange of Prisoners,para. 6 (ibid., § 840); Agreement between Croatia and the FRY on the Exchange of Prisoners(July 1992), para. 3 (ibid., § 841); Agreement between Croatia and the FRY on the Releaseand Repatriation of Prisoners, Article 1(4) (ibid., § 842); Agreement between the Parties to theConflict in Bosnia and Herzegovina on the Release and Transfer of Prisoners, Article 3(6) (ibid.,§ 843).

171 See, e.g., Agreement on the Military Aspects of the Peace Settlement annexed to the DaytonAccords, Article IX (ibid., § 787); Agreement between Croatia and the SFRY on the Exchangeof Prisoners, paras. 1–2 (ibid., § 792); Protocol to the Moscow Agreement on a Cease-fire inChechnya, Article 2 (ibid., § 793); Ashgabat Protocol on Prisoner Exchange in Tajikistan, para. 1(ibid., § 794).

172 See, e.g., Peace Accords between the Government of Angola and UNITA, Cease-fire Agree-ment, Section II(3) (ibid., § 913); Agreement between Croatia and the SFRY on the Exchangeof Prisoners, paras. 3–6 and 11 (ibid., § 915); Agreement No. 3 on the ICRC Plan of Actionbetween the Parties to the Conflict in Bosnia and Herzegovina, Section IV (ibid., § 916); Agree-ment between Croatia and the FRY on the Release and Repatriation of Prisoners, Article 1(1)(ibid., § 917); London Programme of Action on Humanitarian Issues, Article 2(f) (ibid., § 918);Agreement between the Parties to the Conflict in Bosnia and Herzegovina on the Release andTransfer of Prisoners, Article 3 (ibid., § 919); Agreement among the Parties to Halt the Conflictin Bosnia and Herzegovina, Article II (ibid., § 921); General Peace Agreement for Mozambique,Protocol VI, Section III(2) (ibid., § 920); Cotonou Agreement on Liberia, Article 10 (ibid., § 922);Ashgabat Protocol on Prisoner Exchange in Tajikistan, para. 2 (ibid., § 923).

173 See UN Secretary-General, Further report on the UN Angola Verification Mission (UNAVEMII) (ibid., § 937).

3400


Colombia,174 El Salvador,175 Rwanda,176 Somalia177 and Sudan.178 The UN

Security Council and UN Commission on Human Rights, as well as the

Parliamentary Assembly of the Council of Europe, have called upon parties

to cooperate with the ICRC in the release of detainees.179

Practice indicates that the responsibility of the former detaining power does

not end at the moment of release, but continues in the sense of ensuring the

safety of persons during return and providing subsistence for the duration of

the journey. The Third Geneva Convention requires that the repatriation of

prisoners of war take place under the same humane conditions as transfers

of prisoners.180 Additional Protocol II provides that “if it is decided to release

persons deprived of their liberty, necessary measures to ensure their safety

shall be taken by those so deciding”.181 This last requirement is set forth in the

Agreement between Croatia and the SFRY on the Exchange of Prisoners (March

1992),182 a number of military manuals which are applicable in or have been

applied in non-international armed conflicts,183 national legislation providing

for the punishment of violations of Additional Protocol II,184 and in a statement

by the President of the UN Security Council.185

With respect to the meaning of the expression “end of active hostilities” in

Article 118 of the Third Geneva Convention, Germany’s Military Manual states

that this requires neither a formal armistice agreement nor the conclusion of a

peace treaty.186

N.B. The direct repatriation and accommodation in neutral countries of pris-

oners of war with special needs are governed by Articles 109–117 of the Third

Geneva Convention.187 The obligations set forth in these provisions are inde-

pendent of the rule requiring release and repatriation at the end of active

hostilities.

174 Report on the Practice of Colombia (ibid., § 928).175 See UN Commission on the Truth for El Salvador, Report (ibid., § 939).176 See Association rwandaise pour la defense des droits de la personne et des libertes publiques,

Rapport sur les droits de l’homme au Rwanda – Annee 1992 (ibid., § 929).177 UN Secretary-General, Progress report on the situation in Somalia (ibid., § 938).178 See ICRC, Annual Report 1986 (ibid., § 945).179 See, e.g., UN Security Council, Res. 1089 (ibid., § 932) and Res. 1284 (ibid., § 933); UN Commis-

sion on Human Rights, Res. 1996/71 (ibid., § 934); Council of Europe, Parliamentary Assembly,Rec. 1287 (ibid., § 940).

180 Third Geneva Convention, Article 119, first paragraph (the provision refers to the conditionsfor transfers set forth in Articles 46–48 of the Convention).

181 Additional Protocol II, Article 5(4) (adopted by consensus) (cited in Vol. II, Ch. 37, § 891).182 Agreement between Croatia and the SFRY on the Exchange of Prisoners (March 1992),

Article VII (ibid., § 892).183 See, e.g., the military manuals of Canada (ibid., § 895) and New Zealand (ibid., § 897).184 See, e.g., the legislation of Ireland (ibid., § 900) and Norway (ibid., § 901).185 UN Security Council, Statement by the President (ibid., § 905).186 Germany, Military Manual (ibid., § 646).187 Third Geneva Convention, Articles 109–117 (ibid., § 606).

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3337

Basic Principles on the Use of Force and Firearms by Law Enforcement Officials

Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August

to 7 September 1990 Whereas the work of law enforcement officials 1 is a social service of great importance and there is, therefore, a need to maintain and, whenever necessary, to improve the working conditions and status of these officials, Whereas a threat to the life and safety of law enforcement officials must be seen as a threat to the stability of society as a whole, Whereas law enforcement officials have a vital role in the protection of the right to life, liberty and security of the person, as guaranteed in the Universal Declaration of Human Rights and reaffirmed in the International Covenant on Civil and Political Rights, Whereas the Standard Minimum Rules for the Treatment of Prisoners provide for the circumstances in which prison officials may use force in the course of their duties, Whereas article 3 of the Code of Conduct for Law Enforcement Officials provides that law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty, Whereas the preparatory meeting for the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Varenna, Italy, agreed on elements to be considered in the course of further work on restraints on the use of force and firearms by law enforcement officials, Whereas the Seventh Congress, in its resolution 14, inter alia , emphasizes that the use of force and firearms by law enforcement officials should be commensurate with due respect for human rights, Whereas the Economic and Social Council, in its resolution 1986/10, section IX, of 21 May 1986, invited Member States to pay particular attention in the implementation of the Code to the use of force and firearms by law enforcement officials, and the General Assembly, in its resolution 41/149 of 4 December 1986, inter alia , welcomed this recommendation made by the Council, Whereas it is appropriate that, with due regard to their personal safety, consideration be given to the role of law enforcement officials in relation to the administration of justice, to the protection of the right to life, liberty and security of the person, to their responsibility to maintain public safety and social peace and to the importance of their qualifications, training and conduct, The basic principles set forth below, which have been formulated to assist Member States in their task of ensuring and promoting the proper role of law enforcement officials, should be taken into account and respected by Governments within the framework of their national legislation and practice, and be brought to the attention of law enforcement officials as well as other persons, such as judges, prosecutors, lawyers, members of the executive branch and the legislature, and the public. General provisions 1. Governments and law enforcement agencies shall adopt and implement rules and regulations on the use of force and firearms against persons by law enforcement officials. In developing such rules and regulations, Governments and law enforcement agencies shall keep the ethical issues associated with the use of force and firearms constantly under review. 2. Governments and law enforcement agencies should develop a range of means as broad as possible and equip law enforcement officials with various types of weapons and ammunition that would allow

3336

2

for a differentiated use of force and firearms. These should include the development of non-lethal incapacitating weapons for use in appropriate situations, with a view to increasingly restraining the application of means capable of causing death or injury to persons. For the same purpose, it should also be possible for law enforcement officials to be equipped with self-defensive equipment such as shields, helmets, bullet-proof vests and bullet-proof means of transportation, in order to decrease the need to use weapons of any kind. 3. The development and deployment of non-lethal incapacitating weapons should be carefully evaluated in order to minimize the risk of endangering uninvolved persons, and the use of such weapons should be carefully controlled. 4. Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result. 5. Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall: ( a ) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved; ( b ) Minimize damage and injury, and respect and preserve human life; ( c ) Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment; ( d ) Ensure that relatives or close friends of the injured or affected person are notified at the earliest possible moment. 6. Where injury or death is caused by the use of force and firearms by law enforcement officials, they shall report the incident promptly to their superiors, in accordance with principle 22. 7. Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law. 8. Exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any departure from these basic principles. Special provisions 9. Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life. 10. In the circumstances provided for under principle 9, law enforcement officials shall identify themselves as such and give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident. 11. Rules and regulations on the use of firearms by law enforcement officials should include guidelines that: ( a ) Specify the circumstances under which law enforcement officials are authorized to carry firearms and prescribe the types of firearms and ammunition permitted;

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( b ) Ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm; ( c ) Prohibit the use of those firearms and ammunition that cause unwarranted injury or present an unwarranted risk; ( d ) Regulate the control, storage and issuing of firearms, including procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them; ( e ) Provide for warnings to be given, if appropriate, when firearms are to be discharged; ( f ) Provide for a system of reporting whenever law enforcement officials use firearms in the performance of their duty. Policing unlawful assemblies 12. As everyone is allowed to participate in lawful and peaceful assemblies, in accordance with the principles embodied in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, Governments and law enforcement agencies and officials shall recognize that force and firearms may be used only in accordance with principles 13 and 14. 13. In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary. 14. In the dispersal of violent assemblies, law enforcement officials may use firearms only when less dangerous means are not practicable and only to the minimum extent necessary. Law enforcement officials shall not use firearms in such cases, except under the conditions stipulated in principle 9. Policing persons in custody or detention 15. Law enforcement officials, in their relations with persons in custody or detention, shall not use force, except when strictly necessary for the maintenance of security and order within the institution, or when personal safety is threatened. 16. Law enforcement officials, in their relations with persons in custody or detention, shall not use firearms, except in self-defence or in the defence of others against the immediate threat of death or serious injury, or when strictly necessary to prevent the escape of a person in custody or detention presenting the danger referred to in principle 9. 17. The preceding principles are without prejudice to the rights, duties and responsibilities of prison officials, as set out in the Standard Minimum Rules for the Treatment of Prisoners, particularly rules 33, 34 and 54. Qualifications, training and counselling 18. Governments and law enforcement agencies shall ensure that all law enforcement officials are selected by proper screening procedures, have appropriate moral, psychological and physical qualities for the effective exercise of their functions and receive continuous and thorough professional training. Their continued fitness to perform these functions should be subject to periodic review. 19. Governments and law enforcement agencies shall ensure that all law enforcement officials are provided with training and are tested in accordance with appropriate proficiency standards in the use of force. Those law enforcement officials who are required to carry firearms should be authorized to do so only upon completion of special training in their use. 20. In the training of law enforcement officials, Governments and law enforcement agencies shall give special attention to issues of police ethics and human rights, especially in the investigative process, to alternatives to the use of force and firearms, including the peaceful settlement of conflicts, the

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understanding of crowd behaviour, and the methods of persuasion, negotiation and mediation, as well as to technical means, with a view to limiting the use of force and firearms. Law enforcement agencies should review their training programmes and operational procedures in the light of particular incidents. 21. Governments and law enforcement agencies shall make stress counselling available to law enforcement officials who are involved in situations where force and firearms are used. Reporting and review procedures 22. Governments and law enforcement agencies shall establish effective reporting and review procedures for all incidents referred to in principles 6 and 11 ( f ). For incidents reported pursuant to these principles, Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances. In cases of death and serious injury or other grave consequences, a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control. 23. Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process, including a judicial process. In the event of the death of such persons, this provision shall apply to their dependants accordingly. 24. Governments and law enforcement agencies shall ensure that superior officers are held responsible if they know, or should have known, that law enforcement officials under their command are resorting, or have resorted, to the unlawful use of force and firearms, and they did not take all measures in their power to prevent, suppress or report such use. 25. Governments and law enforcement agencies shall ensure that no criminal or disciplinary sanction is imposed on law enforcement officials who, in compliance with the Code of Conduct for Law Enforcement Officials and these basic principles, refuse to carry out an order to use force and firearms, or who report such use by other officials. 26. Obedience to superior orders shall be no defence if law enforcement officials knew that an order to use force and firearms resulting in the death or serious injury of a person was manifestly unlawful and had a reasonable opportunity to refuse to follow it. In any case, responsibility also rests on the superiors who gave the unlawful orders. 1/ In accordance with the commentary to article 1 of the Code of Conduct for Law Enforcement Officials, the term "law enforcement officials" includes all officers of the law, whether appointed or elected, who exercise police powers, especially the powers of arrest or detention. In countries where police powers are exercised by military authorities, whether uniformed or not, or by State security forces, the definition of law enforcement officials shall be

regarded as including officers of such services.

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Council of Europe Publishing

THE EUROPEAN CODE

OF POLICE ETHICS

Recommendation Rec(2001)10adopted by the Committee of Ministersof the Council of Europeon 19 September 2001and explanatory memorandum

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French edition :

Le code européen d’éthique de la police (Recommandation Rec(2001)10 etexposé des motifs)

ISBN 92-871-4830-9

Council of Europe PublishingF-67075 Strasbourg Cedex

ISBN 92-871-4831-7© Council of Europe, March 2002Reprinted October 2002Printed at the Council of Europe

The opinions expressed in this work are the responsibility of the author(s) and do not nec-essarily reflect the official policy of the Council of Europe.

All rights reserved. No part of this publication may be translated, reproduced or trans-mitted, in any form or by any means, electronic (CD-Rom, Internet, etc.) or mechanical,including photocopying, recording or any information storage or retrieval system, with-out prior permission in writing from the Publishing Division, Communication andResearch Directorate (F-67075 Strasbourg or [email protected]).

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1. Recommendation Rec(2001)10, adopted by the Committee ofMinisters of the Council of Europe on 19 September 2001, was preparedby the Committee of Experts on Police Ethics and Problems of Policing(PC-PO).

2. The publication contains the text of Recommendation Rec(2001)10and the explanatory memorandum thereto.

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Recommendation Rec(2001)10

of the Committee of Ministers to member stateson the European Code of Police Ethics

(Adopted by the Committee of Ministers on 19 September 2001at the 765th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article15.b of theStatute of the Council of Europe,

Recalling that the aim of the Council of Europe is to achieve greaterunity between its members ;

Bearing in mind that it is also the purpose of the Council of Europe topromote the rule of law, which constitutes the basis of all genuinedemocracies ;

Considering that the criminal justice system plays a key role in safe-guarding the rule of law and that the police have an essential role withinthat system ;

Aware of the need of all member states to provide effective crime fight-ing both at the national and the international level ;

Considering that police activities to a large extent are performed in closecontact with the public and that police efficiency is dependent on publicsupport ;

Recognising that most European police organisations – in addition toupholding the law – are performing social as well as service functions insociety ;

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Convinced that public confidence in the police is closely related to their attitude and behaviour towards the public, in particular theirrespect for the human dignity and fundamental rights and freedoms ofthe individual as enshrined, in particular, in the European Convention on Human Rights ;

Considering the principles expressed in the United Nations Code ofConduct for Law Enforcement Officials and the resolution of theParliamentary Assembly of the Council of Europe on the Declaration onthe Police ;

Bearing in mind principles and rules laid down in texts related to policematters – criminal, civil and public law as well as human rights aspects –as adopted by the Committee of Ministers, decisions and judgments ofthe European Court of Human Rights and principles adopted by theCommittee for the Prevention of Torture and Inhuman or DegradingTreatment or Punishment ;

Recognising the diversity of police structures and means of organisingthe police in Europe ;

Considering the need to establish common European principles andguidelines for the overall objectives, performance and accountability ofthe police to safeguard security and individuals’ rights in democraticsocieties governed by the rule of law,

Recommends that the governments of member states be guided in theirinternal legislation, practice and codes of conduct of the police by theprinciples set out in the text of the European Code of Police Ethics,appended to the present recommendation, with a view to their progres-sive implementation, and to give the widest possible circulation to thistext.

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Appendix to Recommendation Rec(2001)10

Definition of the scope of the code

This code applies to traditional public police forces or police services, or to otherpublicly authorised and/or controlled bodies with the primary objectives ofmaintaining law and order in civil society, and who are empowered by the stateto use force and/or special powers for these purposes.

I. Objectives of the police

1. The main purposes of the police in a democratic society governed by therule of law are :

– to maintain public tranquillity and law and order in society ;

– to protect and respect the individual’s fundamental rights and freedomsas enshrined, in particular, in the European Convention on Human Rights ;

– to prevent and combat crime ;

– to detect crime ;

– to provide assistance and service functions to the public.

II. Legal basis of the police under the rule of law

2. The police are a public body which shall be established by law.

3. Police operations must always be conducted in accordance with thenational law and international standards accepted by the country.

4. Legislation guiding the police shall be accessible to the public and suffi-ciently clear and precise, and, if need be, supported by clear regulations equallyaccessible to the public.

5. Police personnel shall be subject to the same legislation as ordinary citizens,and exceptions may only be justified for reasons of the proper performance ofpolice work in a democratic society.

III. The police and the criminal justice system

6. There shall be a clear distinction between the role of the police and theprosecution, the judiciary and the correctional system ; the police shall not haveany controlling functions over these bodies.

7. The police must strictly respect the independence and the impartiality of judges ; in particular, the police shall neither raise objections to legitimatejudgments or judicial decisions, nor hinder their execution.

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8. The police shall, as a general rule, have no judicial functions. Any delega-tion of judicial powers to the police shall be limited and in accordance with thelaw. It must always be possible to challenge any act, decision or omission affect-ing individual rights by the police before the judicial authorities.

9. There shall be functional and appropriate co-operation between the policeand the public prosecution. In countries where the police are placed under theauthority of the public prosecution or the investigating judge, the police shallreceive clear instructions as to the priorities governing crime investigation policyand the progress of criminal investigation in individual cases. The police shouldkeep the superior crime investigation authorities informed of the implementa-tion of their instructions, in particular, the development of criminal cases shouldbe reported regularly.

10. The police shall respect the role of defence lawyers in the criminal justiceprocess and, whenever appropriate, assist in ensuring an effective right of accessto legal assistance, in particular with regard to persons deprived of their liberty.

11. The police shall not take the role of prison staff, except in cases ofemergency.

IV. Organisational structures of the police

A. General

12. The police shall be organised with a view to earning public respect asprofessional upholders of the law and providers of services to the public.

13. The police, when performing police duties in civil society, shall be under theresponsibility of civilian authorities.

14. The police and its personnel in uniform shall normally be easily recognisable.

15. The police shall enjoy sufficient operational independence from other statebodies in carrying out its given police tasks, for which it should be fully accountable.

16. Police personnel, at all levels, shall be personally responsible and accountablefor their own actions or omissions or for orders to subordinates.

17. The police organisation shall provide for a clear chain of command withinthe police. It should always be possible to determine which superior is ultimatelyresponsible for the acts or omissions of police personnel.

18. The police shall be organised in a way that promotes good police/publicrelations and, where appropriate, effective co-operation with other agencies,local communities, non-governmental organisations and other representativesof the public, including ethnic minority groups.

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19. Police organisations shall be ready to give objective information on theiractivities to the public, without disclosing confidential information. Professionalguidelines for media contacts shall be established.

20. The police organisation shall contain efficient measures to ensure theintegrity and proper performance of police staff, in particular to guaranteerespect for individuals’ fundamental rights and freedoms as enshrined, notably,in the European Convention on Human Rights.

21. Effective measures to prevent and combat police corruption shall be estab-lished in the police organisation at all levels.

B. Qualifications, recruitment and retention of police personnel

22. Police personnel, at any level of entry, shall be recruited on the basis of theirpersonal qualifications and experience, which shall be appropriate for the objec-tives of the police.

23. Police personnel shall be able to demonstrate sound judgment, an openattitude, maturity, fairness, communication skills and, where appropriate,leadership and management skills. Moreover, they shall possess a good under-standing of social, cultural and community issues.

24. Persons who have been convicted for serious crimes shall be disqualifiedfrom police work.

25. Recruitment procedures shall be based on objective and non-discriminatorygrounds, following the necessary screening of candidates. In addition, the policyshall aim at recruiting men and women from various sections of society, includ-ing ethnic minority groups, with the overall objective of making police personnelreflect the society they serve.

C. Training of police personnel

26. Police training, which shall be based on the fundamental values of democ-racy, the rule of law and the protection of human rights, shall be developed inaccordance with the objectives of the police.

27. General police training shall be as open as possible towards society.

28. General initial training should preferably be followed by in-service trainingat regular intervals, and specialist, management and leadership training, when itis required.

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29. Practical training on the use of force and limits with regard to establishedhuman rights principles, notably the European Convention on Human Rightsand its case-law, shall be included in police training at all levels.

30. Police training shall take full account of the need to challenge and combatracism and xenophobia.

D. Rights of police personnel

31. Police staff shall as a rule enjoy the same civil and political rights as othercitizens. Restrictions to these rights may only be made when they are necessaryfor the exercise of the functions of the police in a democratic society, in accor-dance with the law, and in conformity with the European Convention on HumanRights.

32. Police staff shall enjoy social and economic rights, as public servants, to thefullest extent possible. In particular, staff shall have the right to organise or toparticipate in representative organisations, to receive an appropriate remunera-tion and social security, and to be provided with special health and securitymeasures, taking into account the particular character of police work.

33. Disciplinary measures brought against police staff shall be subject to reviewby an independent body or a court.

34. Public authorities shall support police personnel who are subject to ill-founded accusations concerning their duties.

V. Guidelines for police action/intervention

A. Guidelines for police action/intervention : general principles

35. The police, and all police operations, must respect everyone’s right to life.

36. The police shall not inflict, instigate or tolerate any act of torture orinhuman or degrading treatment or punishment under any circumstances.

37. The police may use force only when strictly necessary and only to theextent required to obtain a legitimate objective.

38. Police must always verify the lawfulness of their intended actions.

39. Police personnel shall carry out orders properly issued by their superiors,but they shall have a duty to refrain from carrying out orders which are clearlyillegal and to report such orders, without fear of sanction.

40. The police shall carry out their tasks in a fair manner, guided, in particular,by the principles of impartiality and non-discrimination.

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41. The police shall only interfere with individual’s right to privacy when strictlynecessary and only to obtain a legitimate objective.

42. The collection, storage, and use of personal data by the police shall becarried out in accordance with international data protection principles and, inparticular, be limited to the extent necessary for the performance of lawful,legitimate and specific purposes.

43. The police, in carrying out their activities, shall always bear in mind every-one’s fundamental rights, such as freedom of thought, conscience, religion,expression, peaceful assembly, movement and the peaceful enjoyment ofpossessions.

44. Police personnel shall act with integrity and respect towards the public and with particular consideration for the situation of individuals belonging toespecially vulnerable groups.

45. Police personnel shall, during intervention, normally be in a position to giveevidence of their police status and professional identity.

46. Police personnel shall oppose all forms of corruption within the police. Theyshall inform superiors and other appropriate bodies of corruption within thepolice.

B. Guidelines for police action/intervention : specific situations

1. Police investigation

47. Police investigations shall, as a minimum, be based upon reasonablesuspicion of an actual or possible offence or crime.

48. The police must follow the principles that everyone charged with a criminaloffence shall be considered innocent until found guilty by a court, and thateveryone charged with a criminal offence has certain rights, in particular theright to be informed promptly of the accusation against him/her, and to preparehis/her defence either in person, or through legal assistance of his/her ownchoosing.

49. Police investigations shall be objective and fair. They shall be sensitive andadaptable to the special needs of persons, such as children, juveniles, women,minorities including ethnic minorities and vulnerable persons.

50. Guidelines for the proper conduct and integrity of police interviews shall beestablished, bearing in mind paragraph 48. They shall, in particular, provide fora fair interview during which those interviewed are made aware of the reasons

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for the interview as well as other relevant information. Systematic records ofpolice interviews shall be kept.

51. The police shall be aware of the special needs of witnesses and shall be guided by rules for their protection and support during investigation, in par-ticular where there is a risk of intimidation of witnesses.

52. Police shall provide the necessary support, assistance and information tovictims of crime, without discrimination.

53. The police shall provide interpretation/translation where necessary through-out the police investigation.

2. Arrest/deprivation of liberty by the police

54. Deprivation of liberty of persons shall be as limited as possible andconducted with regard to the dignity, vulnerability and personal needs of eachdetainee. A custody record shall be kept systematically for each detainee.

55. The police shall, to the extent possible according to domestic law, informpromptly persons deprived of their liberty of the reasons for the deprivation oftheir liberty and of any charge against them, and shall also without delay informpersons deprived of their liberty of the procedure applicable to their case.

56. The police shall provide for the safety, health, hygiene and appropriatenourishment of persons in the course of their custody. Police cells shall be of areasonable size, have adequate lighting and ventilation and be equipped withsuitable means of rest.

57. Persons deprived of their liberty by the police shall have the right to havethe deprivation of their liberty notified to a third party of their choice, to have access to legal assistance and to have a medical examination by a doctor,whenever possible, of their choice.

58. The police shall, to the extent possible, separate persons deprived of theirliberty under suspicion of having committed a criminal offence from thosedeprived of their liberty for other reasons. There shall normally be a separationbetween men and women as well as between adults and juveniles.

VI. Accountability and control of the police

59. The police shall be accountable to the state, the citizens and their repre-sentatives. They shall be subject to efficient external control.

60. State control of the police shall be divided between the legislative, theexecutive and the judicial powers.

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61. Public authorities shall ensure effective and impartial procedures forcomplaints against the police.

62. Accountability mechanisms, based on communication and mutual under-standing between the public and the police, shall be promoted.

63. Codes of ethics of the police, based on the principles set out in the presentrecommendation, shall be developed in member states and overseen by appro-priate bodies.

VII. Research and international co-operation

64. Member states shall promote and encourage research on the police, bothby the police themselves and external institutions.

65. International co-operation on police ethics and human rights aspects of thepolice shall be supported.

66. The means of promoting the principles of the present recommendation andtheir implementation must be carefully scrutinised by the Council of Europe.

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15

Explanatory memorandum

I. Introduction

1. Codes of police ethics

Much that has been written about the police takes the form of descrip-tions of how they do or would act in various situations. There istendency, except in a moralising manner, to set aside questions of howthe police should act : to make clear the values and standards that arerequired of police in a modern, democratic society. The provisions of theEuropean Code of Police Ethics provides a basis for just such a frame-work. It could not be more timely. Many European countries are reor-ganising their police structures to promote and consolidate democraticvalues. They are also concerned to secure common policing standardsacross national boundaries both to meet the expectations of increasinglymobile Europeans, who wish to be confident of uniform, fair andpredictable treatment by police, and to enhance their powers of co-operation, and hence their effectiveness, in the fight against inter-national crime. The provision of the code also supports the Council ofEurope’s aim of achieving greater unity between its members.

A glance at the role of the police in a democracy reveals the particularrelevance of a code of ethics for the police. People within democracieshave organised their states to secure maximum freedom for themselveswithin the rule of law. Likewise, the criminal justice systems have beendeveloped with the purpose of providing individual liberty and security.In democratic societies where the rule of law prevails, the police under-take the traditional functions of preventing, combating and detectingcrime, preserving public tranquillity, upholding the law, maintainingpublic order, and protecting the fundamental rights of the individual.Moreover, in such societies the police provide various services to thepublic that are of a social nature, which support their other activities.

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They are granted discretion to fulfil these functions. The police indemocracies help to sustain the values of democracy, and are them-selves imbued with the self-same values. In general, the public consentto and, indeed, welcome the exercise of legitimate authority by thepolice so long as the police are seen to carry out their tasks towardsworthwhile, democratic ends in an ethically acceptable manner. In turn,when they fulfil these conditions, the police have every right to expectthat the public will trust them to carry out their responsibilities, and sup-port and co-operate with them in their activities when doing so. Theseideas about policing within democracies are at the heart of Council ofEurope policies.

Although a code of police ethics is only the beginning of any process tosecure common police standards, without one such a process has littlehope of succeeding. By laying the foundation for ethical norms, a codeof police ethics enhances the possibility that ethical problems are morereadily identified, more fully understood, analysed more carefully andmore readily resolved. It also prompts questions about the values servedby the police as an organisation, and their proper application. Key con-cepts within the police, such as “loyalty”, “consent”, “impartiality”,“discretion” and “professionalism” all benefit from the common refer-ence and shared meaning, and hence understanding, made possible bya code. Moreover, it can help articulate personal standards of conduct,which capture a sense of pride in being members of a police organisa-tion. This is of particular importance to police recruits, who need toknow from the outset the core values that should define and governtheir work. The mention of police recruits is a reminder of how impor-tant codes are for police training. Without some such objective referencefor standards and values, the trainer’s task is made doubly difficult. Boththe origin and authority of standards have to be argued for, with the riskthat they are seen as merely local and the creation of no one but thetrainer. It should be added that a police code of ethics has merit at alllevels of training.

As has been mentioned, police services are greatly enhanced if the policeenjoy the consent and close co-operation of the public. The public isdependent upon the responsible delivery of police services for which thepolice are invested with considerable authority, including discretion,which constitutes a virtual monopoly of legitimate coercion. For this

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reason the public has a need for assurance. A well publicised police codeof ethics, by underlining the common standards, purposes and values ofthe police, can help to promote public trust in the police and furthergood public relations and co-operation. The same standards, by makingclear the range and scope of police services, help safeguard the policeagainst unwarranted, frivolous and vexatious demands, and, above all,limit their liability for failures of service.

Moreover, a police code of ethics can work as a regulatory instrumentfor the internal organisation of the police. This is one of the strikingfeatures of the European Code of Police Ethics. By providing minimumstandards, values and ethical frameworks, it may serve a regulatoryfunction in at least four ways : to maintain quality control of the per-sonnel of the police organisation (including civilian staff) ; to help in theexercise of leadership, management and supervision ; to make seniormembers of the organisation more accountable ; and to provide a normfor the adjudication of difficult, internal disputes.

In terms of its possible influence upon police practice, a police code ofethics recommends best practice for the police, and is a specialisedversion of habitual, everyday, common-sense principled conduct. Thereare, however, a number of meanings for the word “ethics”. Aristotleestablished the most widely understood meaning of the word. For him,it refers to the critical discipline that focuses upon everyday ethicalconduct and beliefs for its subject matter. This is not the meaning of theword intended in the title the European Code of Police Ethics. Modernsocieties and their police are partly organised under the twin principlesof division of labour and co-operation. People find themselves engagedin a large number of specialised activities. While their everyday relation-ships employ common standards of conduct, they often have need ofmore specialised understanding and guidance when it comes to theirparticular jobs and occupations. This is because their work focuses uponparticular aspects of human conduct in ways that highlight ethicaldilemmas that are regularly repeated, and which their occupational rolesrequire them to cope with and resolve. This is particularly the case with those working in the public services, where the public entrust their well-being to occupational specialists. In this context the word“ethics” refers to that body of principled requirements and prescrip-tions that is deemed fit to regulate the conduct of the occupation. It is

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important to note that “ethics” in this sense represents an attempt toapply everyday ethics to the specialist demands and dilemmas of publicorganisations. It is in this sense that “ethics” is used in the EuropeanCode of Police Ethics.

The police objective of upholding the rule of law encompasses two dis-tinct but interrelated duties : the duty of upholding the properly enactedand constituted law of the state, including securing a general conditionof public tranquillity, and the related duty of keeping strictly withinprescribed powers, abstaining from arbitrary action and respecting theindividual rights and freedoms of members of the public.

The rule of law is focused not only on what is done but on how it isdone. In carrying out their duties, police need to respect citizens’ indi-vidual rights, including human rights, and freedoms and avoid arbitraryor unlawful action. This is fundamental to the meaning of the rule of lawand therefore to the whole meaning and purpose of police duty in ademocracy.

Above all, the rule of law requires that those who make, adjudicate andapply the law should be subject to that same law. In other words, thepolice should be subject to the self-same law that they apply anduphold. It is the mark of the police in a fully-fledged and mature democ-racy that they bind and subject themselves to the very law that they arepledged to uphold. The police role in upholding and safeguarding therule of law is so important that the condition of a democracy can oftenbe determined just by examining the conduct of its police.

The European Code of Police Ethics aims to provide a set of principlesand guidelines for the overall objectives, performance and control of thepolice in democratic societies governed by the rule of law, and is to alarge extent influenced by the European Convention on Human Rights.The code is concerned to make specific and define the requirements andarrangements that fit the police to meet the difficult, demanding anddelicate task of preventing and detecting crime and maintaining law andorder in civil, democratic society. Even if the recommendation is aimedprimarily at governments the guidelines are drafted in such a way thatthey may also be a source of inspiration to those dealing with the policeand police matters at a more pragmatic level.

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2.The background to the European Code of Police Ethics

From its earliest days, the Council of Europe has had police matters onits agenda. Indeed, the police play such an important role with regard tothe protection of the fundamental values of the Council of Europe(pluralistic democracy, the rule of law and human rights) that theCouncil of Europe provides a natural platform for European discussionon the role of the police in a democratic society.

Considerable case-law relating to the police has been established by theEuropean Court of Human Rights. Moreover, guiding principles relevantto the police have been developed by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment orPunishment (CPT). The European Social Charter and its case-lawcomprises important principles with regard to the social and economicrights of police personnel. The European Commission against Racismand Intolerance (ECRI) has developed principles for the police in itsspecific field of competence. Moreover, the European Commission forDemocracy through Law (Venice Commission) has adopted texts onconstitutional aspects of the police. The Group of States againstCorruption (GRECO) has the mandate to evaluate national administra-tions, including the police, with regard to corruption.

Police organisations have also been subject to the requirements of localand regional authorities, and this work has also been linked to problemsof urban insecurity. Police and ethnic relations is another area of interest.Moreover, the Council of Europe has developed activities designed topromote human rights awareness within the police. Through this work,police practitioners and human rights experts, representing both statesand non-governmental organisations, have been brought together todeal with problems of human rights in a professional police context. Thetraining of police personnel in human rights, and a large number ofdocuments, such as handbooks on police and human rights issues, aresome of the concrete results of this work. It has served to develop anunderstanding within national police services of the necessity for raisingawareness of human rights at all levels of the police.

The Declaration on the Police (Resolution 690 (1979)), adopted by theParliamentary Assembly of the Council of Europe in 1979, was an earlyattempt to provide ethical standards for the police. It has been a source

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of inspiration for answering policy questions on the police in manyEuropean states. While the Committee of Ministers shared theAssembly’s view of the necessity to apply particularly high ethicalstandards to the police in democratic societies, they did not give thedeclaration unqualified support, and it did not become a legal instru-ment of the Council of Europe.

The traditional intergovernmental standard-setting work of the Councilof Europe, carried out under the authority of the Committee ofMinisters, has focused on the police with regard to criminal justice poli-cies, criminal law and criminology (criminal procedure, crime prevention,victim and witness protection, juvenile delinquency, custody, organisedcrime, corruption, public prosecution, etc.) and public law (personalintegrity and data protection, etc.). Legal instruments – conventions andrecommendations – of relevance to the police have been developedwithin this framework.

Starting in 1989, changes occurred in central and eastern Europe, whichled the Council of Europe to intensify considerably its activities withregard to the police. Within the framework of programmes aiming atsupporting legal reform as well as the reform of public administration,including the police, a large number of activities (seminars, trainingsessions and the dissemination of legal expertise) were implementedunder themes such as “the role of the police in a democratic society”,“police ethics”, and “police and the rule of law”.

It was in this context of police reform that the need for a normative,pan-European framework for the police was again highlighted. As aresult, the Committee of Ministers established the Committee of Expertson Police Ethics and Problems of Policing (PC-PO) under the authority ofthe European Committee on Crime Problems (CDPC).

The terms of reference of the PC-PO were adopted by the CDPC at its47th plenary session in 1998, and confirmed by the Committee ofMinisters at the 641st meeting of their Deputies in September 1998.

PC-PO terms of reference

“The police play an important role within the criminal justice sys-tem. As opposed to other professional groups within that system,

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few international instruments apply to the police. At the momentmany European countries are reorganising their police as a crucialpart of the process to promote and consolidate democratic ideasand values in society. Police ethics have thus become an importanttopic in several member states of the Council of Europe.

The committee of experts should prepare a study of police ethics inthe broad sense, taking into account such questions as :

– the role of the police in a democratic society and their place inthe criminal justice system ;

– the objectives of policing under the Rule of Law : prevention ofcrime, detection of crime etc ;

– control of the police.

The committee of experts should consider, in particular, aspects ofpolice ethics related to certain situations that occur in daily policework, such as the interrogation of suspects and other functions ofinvestigation, the use of force, the exercise of police discretion etc.Ethical aspects of police management in general as well as theirinclusion as a training subject would also be covered. In this respectthe differences between ethical codes, codes of professionalconduct and disciplinary codes should be taken into consideration.In carrying out this task the committee should bear in mind theEuropean Convention on Human Rights and the European Con-vention for the Prevention of Torture and Inhuman or DegradingTreatment or Punishment, as well as Assembly Resolution 690 (1979)on the Declaration on the Police. It should take into account the work of the Committee of Experts on Partnership in CrimePrevention (PC-PA) as well as other relevant activities of the Councilof Europe.

The outcome of the work should be a report and/or a recommen-dation on police ethics, which could be used as a guiding frame-work for member states when police reforms and national codes ofpolice ethics are being considered.”

The PC-CO1 was composed of experts from Austria, Belgium, Croatia,Cyprus, Czech Republic, Denmark, France, Greece, Italy, Lithuania,

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Moldova, Poland, Portugal, Romania, Slovenia, Spain, “the formerYugoslav Republic of Macedonia”, Turkey and the United Kingdom. ThePC-CO included experts coming from ministries of the interior, ministriesof justice, the police, the prosecution and the judiciary. The PC-CO waschaired by Mr Karsten Petersen, Deputy Police Commissioner, Denmark.Two scientific experts – Mr Amadeu Recasens i Brunet (Director of Escolade Policia de Catalunia and Professor at the University of Barcelona,Spain) and Mr Neil Richards (Director of Chief Police OfficersDevelopment Programme, National Police Training, Bramshill, UnitedKingdom) – were appointed to assist the committee. The Secretariat wasprovided by the Directorate General of Legal Affairs, DG I, of theCouncil of Europe.

The European Commission, ICPO-Interpol, the Association of EuropeanPolice Colleges (AEPC) and the International Centre of Sociological,Penal and Penitentiary Research and Studies (Intercenter) wereobservers to the committee. The Association for the Prevention ofTorture (APT), the European Council of Police Trade Unions (CESP), theEuropean Network of Police Women (ENP), the European Federation ofEmployees in Public Services (EUROFEDOP), the InternationalFederation of Senior Police Officers (FIFSP), the International PoliceAssociation (IPA) and the International Union of Police Federations(UISP), were consulted in the final stages of the work.

The PC-CO based its work upon legal instruments (conventions and rec-ommendations of the Council of Europe and other international organi-sations) as well as principles established by the European Court ofHuman Rights and other bodies of the Council of Europe, mentionedabove. The committee organised hearings with representatives of theEuropean Committee for the Prevention of Torture and Inhuman andDegrading Treatment or Punishment and the European Committee ofSocial Rights. Moreover, the PC-CO was informed of projects and activ-ities related to the police carried out by the various Directorates Generalof the Council of Europe. The work of the PC-CO was presented andsupported at the 12th Criminological Colloquium, organised by theCouncil of Europe in November 1999, on the theme “Police powers and accountability in a democratic society”, and at the High LevelConference between European Ministers of the Interior, in June 2000.

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The PC-CO held six plenary and three working group meetings betweenDecember 1998 and March 2001. Following a request by theParliamentary Assembly, the Committee of Ministers agreed that a pro-visional draft recommendation be sent to the Parliamentary Assemblyfor its opinion. The opinion of the Assembly was taken into account bythe PC-CO at its sixth meeting.

The text of the draft recommendation, the European Code of PoliceEthics, and its explanatory report were finalised at the sixth meeting ofthe PC-CO in March 2001, and submitted for approval and transmissionto the Committee of Ministers at the 50th plenary session of theEuropean Committee on Crime problems (CDPC), held in June 2001. Atthe 765th meeting of their Deputies on 19 September 2001, theCommittee of Ministers adopted the recommendation and authorisedpublication of the explanatory memorandum thereto.

II. Preamble to the recommendation

The Committee of Ministers, under the terms of Article15.b of theStatute of the Council of Europe,

Recalling that the aim of the Council of Europe is to achieve greaterunity between its members ;

Bearing in mind that it is also the purpose of the Council of Europe topromote the rule of law, which constitutes the basis of all genuinedemocracies ;

Considering that the criminal justice system plays a key role in safe-guarding the rule of law and that the police have an essential rolewithin that system ;

Aware of the common need of all member states to provide effectivecrime fighting both at the national and the international level ;

Considering that police activities to a large extent are performed inclose contact with the public and that the police efficiency is dependenton public support ;

Recognising that most European police organisations – in addition toupholding the law – are performing social functions as well as servicefunctions in society ;

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Convinced that public confidence in the police is closely related to theirattitude and behaviour towards the public, in particular their respect forthe human dignity and fundamental rights and freedoms of the individ-ual as enshrined, in particular, in the European Convention on HumanRights ;

Considering principles expressed in the United Nations Code ofConduct for Law Enforcement Officials and the resolution of theParliamentary Assembly of the Council of Europe on the Declaration onthe Police ;

Bearing in mind principles and rules laid down in texts related to policematters – criminal, civil and public law as well as human rights aspects– as adopted by the Committee of Ministers, decisions and judgmentsof the European Court of Human Rights and principles adopted by theCommittee for the Prevention of Torture and Inhuman or DegradingTreatment or Punishment ;

Recognising the diversity of different police structures and means oforganising the police in Europe ;

Considering the need to establish common European principles andguidelines for the overall objectives, performance and accountability ofthe police to safeguard security and individuals’ rights in democraticsocieties governed by the rule of law ;

Recommends that the governments of member states be guided in theirinternal legislation, practice and codes of conduct of the police by theprinciples set out in the text of the European Code of Police Ethics,appended to the present recommendation, with a view to their pro-gressive implementation, and to give the widest possible circulation tothis text.

Commentary on the preamble

Since its inception, the Council of Europe has worked to establish andpromote common principles in its member states’ laws, practices and systems. The criminal justice system has been one of the priorities in this respect, as crime fighting demands the direct, practical applicationof the principles on which the Council of Europe was founded and

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which it is expected to uphold, namely the rule of law, democracy andhuman rights.

Moreover, the effectiveness of responses to crime depends to a largeextent on their being harmonised within a coherent and concertedEuropean policy. That requirement is increasingly becoming more impor-tant with the existence of crime phenomena, such as organised crimeand corruption, which often have an international dimension, in respectof which national systems risk proving inadequate.

Traditionally, the elaboration of common standards applicable to lawenforcement bodies, such as the police, has not been as developed, forexample with regard to the judicial side of criminal justice or the imple-mentation of sanctions. The adoption of the Council of EuropeCommittee of Ministers’ Recommendation Rec(2000)19 on the role ofpublic prosecution in the criminal justice system, as well as the presentrecommendation is, however, a new trend in this respect. Moreover, therecognition of the police as a component of the criminal justice system,thus bringing justice and home affairs closer to each other, is likely toprovide a solid basis for continued harmonisation of standards applicableto the police.

In a Europe where national borders become less important the focus onthe police and their powers from an international perspective is unavoid-able. The debate concerns to a large extent the efficiency of the policein combating crime that is increasingly operated over national borders,such as organised crime and corruption. However, the debate is not lim-ited to this perspective. In a democratic society police powers arerestricted with regard to what is acceptable from the point of view ofindividuals’ fundamental rights and freedoms, as laid down in theEuropean Convention on Human Rights. A proper balance betweenthese interests must be found and it is here that the international ethicsof the police come into play.

The police are accountable not only to the state but also to the public in sucha society and their efficiency is to a large extent depending on publicsupport. In this respect the social function and the public service side ofthe police are important also for the carrying out of law enforcement.

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The European Convention on Human Rights and its case-law has beenconsidered a basic framework for the drafting of the present recom-mendation. Moreover, principles of the European Committee for thePrevention of Torture and Inhuman or Degrading Treatment orPunishment (CPT) have been incorporated into the text. The work hasalso, in relevant parts, been influenced by the European Social Charterand its case-law. Moreover, other international texts, particularly appli-cable to the police, such as the United Nations Code of Conduct for LawEnforcement Officials, and Resolution 690 (1979) of the ParliamentaryAssembly of the Council of Europe on the Declaration on the Police,have not only been considered in depth, but have also been influentialsources for the drafting of the present recommendation.

The following Council of Europe texts, which offer guidance in mattersrelating to the present recommendation, have been given the closestattention :

– Framework Convention for the Protection of National Minorities(ETS No 157) ;

– Resolution (78) 62 on juvenile delinquency and social change ;

– Recommendation No. R (79) 17 concerning the protection ofchildren against ill-treatment ;

– Recommendation No. R (80) 11 concerning custody pendingtrial ;

– Recommendation No. R (83) 7 on participation of the public incrime policy ;

– Recommendation No. R (85) 4 on violence in the family ;

– Recommendation No. R (85) 11 on the position of the victim inthe framework of criminal law and procedure ;

– Recommendation No. R (87) 15 on regulating the use of personaldata in the police sector ;

– Recommendation No. R (87) 19 on the organisation of crimeprevention ;

– Recommendation No. R (88) 6 on social reactions to juveniledelinquency among young people coming from migrant families ;

– Recommendation No. R (96) 8 on crime policy in Europe in a timeof change ;

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– Recommendation No. R (97) 13 concerning intimidation of wit-nesses and the rights of the defence ;

– Resolution (97) 24 on the twenty guiding principles for the fightagainst corruption ;

– Recommendation No. R (99) 19 concerning mediation in penalmatters ;

– Recommendation No. R (2000) 10 on codes of conduct for pub-lic officials ;

– Recommendation Rec(2000)19 on the role of public prosecutionin the criminal justice system ;

– Recommendation Rec(2000)20 on the role of early psychosocialintervention in the prevention of criminality ;

– Recommendation Rec(2000)21 on the freedom of exercise of theprofession of lawyer ;

– ECRI general policy recommendations ; European Commissionagainst Racism and Intolerance.

It should also be mentioned that several other texts (instruments andhandbooks, etc.) produced within the Council of Europe relating topolice matters, such as police and human rights, police ethics, media,racism and intolerance, equality and minority questions, have beenconsidered.

The present recommendation has been drafted from the viewpoint thatthere are big differences between member states in terms of how theirlaw enforcement/police tasks are being implemented. This is particularlynoticeable in terms of the status and the organisation of the forces/ser-vices as well as their operating methods. At the same time there aregreat similarities, in particular as regards the objectives of the police andthe problems they face in their daily activities. Having this in mind, therecommendation consists of major guiding principles that are consideredcrucial in a well-established democracy, both for the efficiency of thepolice and for their acceptance by the public.

The establishment of common standards is very timely. Police reformsare being carried out throughout Europe and, particularly in the newer

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democracies, police reforms are part of a general move towards consol-idating democratic principles such as the rule of law and the protectionof human rights, in public administration.

The present set of principles may serve as guidance and a source ofinspiration when police systems are being reformed. However, it is clearthat a reasonable margin of appreciation must be left to member states,not least with regard to the differences in historical heritage and levels ofdevelopment. A foundation for continued efforts relating to the policehas been achieved with this recommendation and the Council of Europehas made police matters one of its priorities.

III. Appendix

Definition of the scope of the code

This code applies to traditional public police forces or police services, orto other publicly authorised and/or controlled bodies with the primaryobjectives of maintaining law and order in civil society and, who areempowered by the state to use force and/or special powers for thesepurposes.

Commentary

The definition of the scope of the code at the outset of the recommen-dation serves the purpose of establishing its applicability. In order tomake the code relevant to as many police systems as possible andconsidering the variety of different police systems existing in Europe, inparticular their different stages of development and organisational struc-tures, the definition is made wide. The definition used in this paragraphmakes the code applicable to “traditional” police in all member states.(It is worth noting that this definition should not be confused with therecommended objectives of the police, which are included in Article 1 ofthe code.)

For the reasons referred to above, the definition of the scope of the codecontains only the hard-core characteristics that are entrusted to all exist-ing public police bodies in Europe, that is the power to use force in orderto maintain law and order in civil society, normally including upholdingpublic order, prevention and detection of crime. Having this definition as

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the lowest common denominator for the applicability of the code, thereis no need to establish a detailed description of the various types ofpolice to be affected. Thus, this code applies to all police organisationsresponsible for police activities in civil society. The code applies regard-less of how such police are being organised ; whether centralised orlocally oriented, whether structured in a civilian or military manner,whether labelled as “services” or “forces”, or whether they are account-able to the state, to regional or local authorities or to a wider public.

Although the intention is to have as wide a range as possible for thecode, certain specific types of police are excluded from its scope. Thereference to “traditional” police should be regarded as being the oppo-site to “special types” of police, which are set up for specific purposesother than keeping law and order in civil society. Examples of police that do not come within the scope of the code are military police whenexercising their military functions and secret security services. Anothercategory not covered by the code is “penitentiary police”, which in thecountries where they exist, are limited to performing their duties in penalinstitutions.

It should be added that private security companies are not covered bythis recommendation.

I. Objectives of the police

1. The main purposes of the police in a democratic society governedby the rule of law are :

– to maintain public tranquillity, and law and order in society ;

– to protect and respect the individual’s fundamental rights andfreedoms as enshrined, in particular in the European Convention onHuman Rights ;

– to prevent and combat crime ;

– to detect crime ;

– to provide assistance and service functions to the public.

Commentary

Paragraph 1 contains a selection of the most important objectives of thepolice in a democratic state governed by the rule of law.

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Maintaining tranquillity and law and order in society are the classicaloverall objectives and the full responsibility of the police, often referredto as “public order” policing. This concept covers a wide variety ofpolice activities among which providing for the safety and security of persons (physical as well as legal) and property (private as well aspublic) and law enforcement between the state and the individual aswell as between individuals should be mentioned.

The respect for the individual’s fundamental rights and freedoms asenshrined in the European Convention on Human Rights as an objectiveof the police is possibly the most significant symbol of a police service ina society governed by the rule of law. This objective implies not only aseparate obligation to uphold these rights, but that there are limits as tohow far the police may proceed in order to fulfil their other objectives.

The wording “notably the European Convention on Human Rights” ischosen in order to indicate a specific and precise reference to a particu-lar instrument, without excluding the importance of other relevanthuman rights texts in this respect.

Crime prevention is dealt with differently in member states, however,this is most commonly, regarded as an overall responsibility of the state.Crime prevention is often divided between social and situationalprevention, both of which apply to the police.

As follows from the Council of Europe Committee of Ministers’ Recom-mendations No. R (83) 7 on participation of the public in crime policy,and No. R (87) 19 on organisation of crime prevention, effective crimeprevention requires active participation by the community at large,including the public. In recent years “partnership in crime prevention”has been a frequently used term, which indicates that crime preventionis not seen as a task exclusive to the police. The crime prevention activ-ities of the police, other agencies and the public therefore need to be co-ordinated. Even if in most states the ultimate responsibility for crimeprevention policy does not rest with the police, it is none the less one oftheir main objectives as a society governed by the rule of law whichrequires safeguards to curb abuse.

Crime detection is one of the classical primary objectives of police in allstates. Even if crime detection often amounts to a limited part of thetotal police work, it is a vital component of the activities of the police.

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People expect much of the police in terms of their crime detection.Effective crime detection has also a preventive effect in itself, and is thuscrucial for promoting public confidence in criminal justice.

Crime detection is organised differently in various states ; in some statesit is the responsibility of the general police, whereas in other states it iscarried out by special branches of the police, such as criminal police orjudicial police. The independence of the police from the prosecutionauthorities also differs to a large extent. However, the problems thepolice are facing in their crime detection are identical all over Europe.This code does not challenge the centrality of the crime-fighting side ofpolice work, but it underlines the importance of upholding a proper bal-ance between the efficiency of the police and the respect for individuals’fundamental human rights, which is particularly difficult in crime fight-ing. The principle of “presumption of innocence” and its accompanyingsafeguards are certainly of great importance for persons suspected ofcrime. In addition, the respect for individual rights in crime detection,also comprises the rights of other persons affected, such as victims andwitnesses, towards whom the police also have responsibilities.Safeguards in crime detection are dealt with in section V.B.

The provision of assistance to the public is also a feature of most policebodies, but such functions are more or less developed in various memberstates. The inclusion of service functions under the objectives of thepolice is somewhat different as it changes the role of the police from thatof being a “force” to be used in society into a “service” body of thesociety. For some years there has been a clear trend in Europe to inte-grate the police more fully into civil society, to bring them closer to thepublic. The development of “community policing” in several memberstates serves such a purpose. One important means used to do this isto give the police the status of a public service body rather than a purelaw enforcer. In order to make such a shift a bit more than a semanticexercise, the service side of the police should be included as one of thepurposes of a modern democratic police. Whereas assistance by thepolice is generally related to specific situations where the police shouldhave an obligation to act, such as offering direct assistance to anyperson in danger or assisting persons in establishing contact with otherauthorities or social services, the service side of the police is more vagueand thus difficult to define. It should not be confused with certain

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administrative duties given to the police (issuing passports etc). Ingeneral, the police as a public service body is connected to the role ofthe police as a resource for the general public, and easy access to thepolice is one of the basic and most important aspects in this respect. Theservice side of the police has more to do with police attitudes towardsthe public than with giving the police far-reaching service functions inaddition to their traditional duties. It is clear that the police cannot becharged with too heavy a responsibility for service functions in society.Member states should therefore establish guidelines for police per-formance and duties in this respect.

II. Legal basis of the police under the rule of law

2. The police are a public body, which shall be established by law.

3. Police operations must always be conducted in accordance withthe national law and international standards accepted by the country.

4. Legislation guiding the police shall be accessible to the public and sufficiently clear and precise and, if need be, supported by clearregulations equally accessible to the public.

5. Police personnel shall be subject to the same legislation asordinary citizens, and exceptions may be justified only for reasons ofthe proper performance of police work in a democratic society.

Commentary

This section establishes the legal framework based on the rule of law forthe police as an institution as well as for its actions. The section also con-tains some fundamental legal requirements, some of which are deducedfrom the European Convention on Human Rights and its accompanyingcase-law. Paragraphs 2 to 5 summarise some of the principles behindthe concept of the rule of law with regard to the police.

Paragraph 2 underlines the idea that the police as an institution is a pub-lic body. It means that public authorities, ultimately the state, cannotevade their responsibility for the police and that the police as an institu-tion cannot be made into a private body. Another thing is that somepolice functions/powers can be delegated to private bodies.

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Moreover, paragraph 2 states that police organisations should be estab-lished by law. This implies that the police as an institution, is based onthe national constitution and/or ordinary legislation, however, this doesnot exclude detailed regulation of the police by subordinate instruments,such as governmental decrees or instructions of the head of service,provided that these are given under delegated powers in conformitywith the constitution/legislation.

Paragraph 3 spells out the principles that should always guide policeoperations ; they must be lawful, both with regard to national legislationand relevant international standards. As regards the latter, the EuropeanConvention on Human Rights and related instruments are of particularimportance.

Paragraph 4 sets out two general additional principles contained in the“rule of law concept”, which have been referred to in the EuropeanCourt of Human Rights case-law. In order to be in a position to protecthis/her own rights against police powers, the citizen must be aware ofwhich legal rules apply. Firstly, this implies that regulations are accessibleto the general public and, secondly, the norm, whether primary legis-lation or a subordinate regulation, must be formulated with sufficientprecision. These two requirements are necessary to give the citizen thepossibility of foreseeing the consequences which a given regulation mayentail. It is clear that consequences never can be foreseeable with abso-lute certainty and, in addition, laws and regulations must keep pace withchanging circumstances. Therefore, the recommendation does not goany further than the European Court of Human Rights’ dicta, and usesthe wording “sufficiently clear”. There must be a good balance betweenthe details and the flexibility of a police regulation, concerning both thebasis for the organisation and the performance of operations. Theimportance of these principles cannot be underestimated in respect ofstate powers used against individuals. This is the reason for having themspelled out in the recommendation.

A cardinal principle of the rule of law, contained in paragraph 5, isthat the law applies equally to all citizens, including those whoexecute the law, such as police personnel. Exceptions to this rule shouldbe allowed only when it is necessary for the proper performance ofpolice duties.

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Paragraph 5 also implies that, unless there are special reasons, policepersonnel should, as a rule, be subject to ordinary legislation as well asto ordinary legal proceedings and sanctions. Internal disciplinary mea-sures fall outside the scope of this rule. The European Court of HumanRights has established case-law concerning the distinction betweendisciplinary matters and criminal matters. In essence, it is not feasiblefor a state to label what, according to international law, should beconsidered a criminal matter or a disciplinary matter, and thus disregardprocedural safeguards provided for in Article 6 of the European Conventionon Human Rights.

III. The police and the criminal justice system

6. There shall be a clear distinction between the role of the police andthe prosecution, the judiciary and the correctional system ; the policeshall not have any controlling functions over these bodies.

Commentary

As already stated, the police are one of the four components of thecriminal justice system ; police, prosecution service, the courts and thecorrectional system. Even though this model of the criminal justicesystem sees each element as independent, it is widely accepted that thesystem should incorporate a number of checks and balances in order toensure that the total system, and its constituent elements operateaccording to the law and in an efficient way. At the same time, thismodel of the criminal justice system, in which individual cases are seenas passing from one element to another and thereby justifying thecriminal justice process, requires that these elements are independentand autonomous to a certain degree with regard to each other. Such asystem is more likely to provide safeguards for those passing through it.

Paragraph 6 underlines the importance of a separation of the role of thepolice from the other components of the criminal justice system. Thepolice, who are the first link of the chain, should have no controllingfunctions over the other bodies in the criminal justice system.

7. The police must strictly respect the independence and the impar-tiality of judges ; in particular, the police shall neither raise objections tolegitimate judgments or judicial decisions, nor hinder their execution.

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Commentary

Paragraph 7 deals with the integrity of the criminal justice system. Theindependence and the impartiality of the judiciary is one of the cornerstones in a society governed be the rule of law. The police, as part of thecriminal justice system, are necessarily close to the judiciary and mustnever act in a way that may prejudice, or be seen to affect the impar-tiality of the judiciary. On the other hand, the judiciary should respectthe police as a distinct professional body and not interfere with theirprofessional arrangements.

The police are subject to the judiciary in judicial decisions, which theymust scrupulously respect and often implement, provided these arelegitimate. The legitimacy, or lawfulness, is related to national law aswell as to international (human rights) law, see also paragraph 3.

The second part of this paragraph would normally imply that the policemust respect all judgments and decisions of courts and even do what-ever is appropriate to enable their execution. However, the way in whichthe paragraph is formulated opens a possibility for the police not to playthe role of “blind implementers” in situations when the requirements forjustice in a democratic society governed by the rule of law are clearly setaside. It follows from paragraphs 3 and 38 that the police always mustcheck the lawfulness of their actions.

This paragraph does not prejudice the rights and freedoms of policepersonnel as private citizens.

8. The police shall, as a general rule, have no judicial functions. Anydelegation of judicial powers to the police shall be limited and inaccordance with the law. It must always be possible to challenge anyact, decision or omission made by the police affecting individual rights,before the judicial authorities.

Commentary

As an exception to the main rule of strict separation of powers betweenthe executive and the judiciary, the police may in certain situations beentrusted with judicial powers. The recommendation emphasises thatthe police should be in a position to exercise judicial powers only to alimited extent, normally with regard to minor offences where the facts

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are simple and where the offender admits guilt, the sanctions arelimited, and often standardised. It is crucial that these decisions by thepolice, based on delegation of judicial powers, can be challenged beforea court and that the offender is made aware of this. This follows fromArticle 6 of the European Convention on Human Rights, which ensureseveryone’s right to a fair trial by a court of law. Paragraph 8 allows thesepolice decisions to be challenged before the judicial authorities.

9. There shall be functional and appropriate co-operation betweenthe police and the public prosecution. In countries where the police areplaced under the authority of the public prosecution or the investigat-ing judge, the police shall receive clear instructions as to the prioritiesgoverning crime investigation policy and the progress of criminal inves-tigation in individual cases. The police should keep the superior crimeinvestigation authorities informed of the implementation of theirinstructions, in particular, the development of criminal cases should bereported regularly.

Commentary

Paragraph 9 reflects the principles contained in the Council of EuropeCommittee of Ministers’ recommendation on the role of public prosecutionin the criminal justice system (Rec(2000)19) concerning the relationshipbetween the prosecution and the police. Due to the different systems pre-vailing in Europe, that recommendation makes a distinction between mem-ber states where the police are independent from the prosecution andthose where the police are placed under the authority of the prosecutionservice. Irrespective of what kind of system, that recommendation givestwo general functions to the prosecution vis-à-vis the police ; to scrutinisethe lawfulness of police investigations, and to monitor whether humanrights are respected. Moreover it indicates that there should be appropriateand functional co-operation between the public prosecution and the police.

In countries where the police are placed under the authority of the pros-ecution service, the said Recommendation (Rec(2000)19) states in itsparagraph 22 that “the state should take effective measures to guaran-tee that the public prosecutor may :

a. give instructions as appropriate to the police with a view to aneffective implementation of crime policy priorities, notably with

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respect to deciding which categories of cases should be dealt withfirst, the means used to search for evidence, the staff used, theduration of investigations, information to be given to the PublicProsecution, etc.;

b. where different police agencies are available, allocate individualcases to the agency that it deems best suited to deal with it ;

c. carry out evaluations and controls in so far as these are necessaryin order to monitor compliance with its instructions and the law ;

d. sanction or promote sanctioning if appropriate to eventualviolations.”

Paragraph 9 of the present recommendation mirrors the above-described rules for the prosecution service in relation the police. Statesshould therefore see that there is functional and appropriate co-operation between the police and the prosecution service, including apolice perspective. In particular, measures should be taken to ensurethat the police receive clear and precise instructions from the prosecu-tion. Such measures could be instructions through legislation or subor-dinate forms of regulations, accompanied by training, even co-trainingbetween the police and the prosecution etc. On the other hand, co-operation also requires that the police be obliged to inform thesuperior investigating authority of progress in policy matters and, inparticular, in specific cases. Reporting back to the prosecution/inves-tigating judge should preferably be regulated in detail, and equallyrequires training.

10. The police shall respect the role of defence lawyers in the criminaljustice process and, whenever appropriate, assist in ensuring the right of access to legal assistance is effective, in particular with regard topersons deprived of their liberty.

Commentary

One of the corner stones in a rule of law society is to provide everyonewith equal access to law and justice. Generally, this also implies theprovision of effective legal assistance to everyone whose rights andinterests are threatened, see Recommendation Rec(2000)21 on thefreedom of exercise of the profession of lawyer. Moreover, paragraph 6of the European Convention on Human Rights contains the specific

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provision that everyone charged with a criminal offence has the rightto defend himself/herself in person or through legal assistance ofhis/her own choosing (see also paragraph 48 of the present recom-mendation).

Paragraph 10 highlights that the police must respect the role of defencelawyers in the criminal justice process. This implies inter alia that thepolice shall not interfere unduly into their work or in any sense intimi-date or harass them. Moreover, the police shall not associate defencelawyers with their clients. The assistance of the police with regard to anoffender’s right to legal assistance is particularly needed when theperson in question is deprived of his/her liberty by the police.

11. The police shall not take the role of prison staff, except in cases ofemergency.

Commentary

Paragraph 11 is complementary to paragraph 6, and has been includedto emphasise the absolute difference of police functions from those ofdealing with convicted and sentenced offenders ; that is, the police intheir judicial role are concerned only with pre-trial procedure. Accordingto Council of Europe standards concerning the administration andmanagement of probation and prison systems, for example the Euro-pean Prison Rules (Rec. No. R (87) 3) and the Recommendation on staff concerned with the implementation of sanctions and measures(Rec. No. R (97) 12), it is clear that the professions of probation andprison staff are completely different from those of the police, in partic-ular in their crime detecting function. Accordingly, personal qualifica-tions, recruitment procedures and training are all very different. Thisrule indicates an important principle for the separation of powerswithin the criminal justice system, before and after sentencing.However, it does not preclude that police can be called for in emer-gency situations.

In some member states, correctional staff are referred to as “penitentiaryor prison police”. As was mentioned in the commentary to the definitionof the scope of the code, this category of staff are not covered by therecommendation.

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IV. Organisational structures of the police

A. General

12. The police shall be organised with a view to earning public respectas professional upholders of the law and providers of services to thepublic.

Commentary

Paragraph 2 embodies a principle, which is a key to the identity of apolice organisation in a democratic society governed by the rule oflaw. Police work in such a society succeeds best if it is carried out withthe consent of the population (“earning public respect”). Therefore, itis crucial for the police to establish a mutual understanding and co-operation with the public. This is true for most of the functions withwhich the police are entrusted.

The organisational structures of the police should preferably be such asto promote confidence building between the police and the public. Oneimportant aspect in this respect is to develop a high level of profession-alism within the police. Another aspect is to develop the police organi-sation into a transparent public service body. In such a way the publicmay regard the police more as a service at their disposal than as a forceimposed upon them.

13. The police, when performing police duties in civil society, shall beunder the responsibility of civilian authorities.

Commentary

It should be recalled that the scope of the present code is limited topolice work in civil society. The judicial side of police work – that is thepolice being a component of the criminal justice system – and the publicorder side of the police, as well as the public service dimension of policework, and the integration of the police into civil society, are all elementsthat are different from military functions and objectives. Moreover, thelegal basis and powers of the police in a rule of law society, where thefocus is on the respect for civil and political rights of individuals, are alsodifferent from those of the military. Although there are some similarities

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between police and military functions and performances, the aforemen-tioned special characteristics of the police are so important in a demo-cratic society governed by the rule of law that they should be supportedby all means available. Organisational responsibility is one of the bestmeans in this respect. A police organisation under civilian responsibilityis likely to best cultivate police professionalism suitable for civil society.

The organisational police structures – civil or military – differ very muchin Europe. In western and northern Europe the police are primarilycivilian. In central and eastern Europe, several police organisations havea military structure ; whereas in southern Europe, both models exist,sometimes side by side in the same country.

Moves towards community orientation of the police is under way inseveral member states. These processes often contain elements oforganisational reform. In central and eastern Europe, this is part of anoverall transition processes into systems of democracy and the rule oflaw. However, this trend is also going on in parts of Europe with long-standing democratic systems.

In the prevailing circumstances and, with full respect to the history andtraditions in member states, paragraph 13 does not go any further thanto state that police functions performed in civil society – whether carriedout by civilian or militarily organised police – should ultimately be underthe responsibility of civilian authorities.

14. The police and its personnel in uniform shall normally be easilyrecognisable.

Commentary

Paragraph 14 contains a principle of crucial importance for the tradi-tional police in a democratic society governed by the rule of law ; itshould be easy for the general public to recognise police stations and theuniformed police. This also covers equipment used (cars etc.). The para-graph indicates that, unless there are special reasons, such as the properexercise of police functions, the police should be distinctively recognis-able from other bodies. This forms part of the general requirement ofopenness and transparency of police organisation, however, it alsoserves the purpose of easy access to the police in emergency situations.(See also paragraph 45.)

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15. The police shall enjoy sufficient operational independence fromother state bodies in carrying out its given police tasks, for which itshould be fully accountable.

Commentary

The police belong to the executive power ; they cannot be fully inde-pendent of the executive, from which they receive instructions.However, in carrying out their given tasks the police must follow the lawand are, in addition, entrusted with discretion. In exercising their pow-ers, the police should not receive any instructions of a political nature.Operational independence should apply throughout the organisation.Such independence is an important feature of the rule of law, as it isaimed at guaranteeing that police operations are being conducted inaccordance with the law, and when interpretation of the law is needed,this is done in an impartial and professional way. Operational inde-pendence requires that the police are fully accountable for theiractions/omissions (see also section VI).

16. Police personnel, at all levels, shall be personally responsible andaccountable for their own actions or omissions or for orders to subor-dinates.

Commentary

In a society governed by the rule of law, the law applies equally to all cit-izens. If this principle is to be meaningful it follows that police personnel,just as any citizen, must also be personally accountable for their ownactions. Moreover, they should also be fully accountable for orders tosubordinate police personnel, given with hierarchical powers.

17. The police organisation shall provide for a clear chain of commandwithin the police. It should always be possible to determine whichsuperior is ultimately responsible for the acts or omissions of police per-sonnel.

Commentary

Paragraph 17, which is complementary to paragraph 16, concerns the responsibility for orders within the police. The fact that all police

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personnel are responsible for their own actions, does not exclude thefact that superiors may also be held responsible for having given theorder. The superior may be held responsible in parallel with the imple-menting official, or alone in cases where the latter followed orders ingood faith. (See also paragraph 38.) Through an established chain ofcommand, ultimate responsibility for police action can be traced in aneffective way.

18. The police shall be organised in a way that promotes goodpolice/public relations and, where appropriate, effective co-operationwith other agencies, local communities, non-governmental organisa-tions and other representatives of the public, including ethnic minoritygroups.

Commentary

Paragraph 18 recommends states to organise their police based on theidea of the police as being an integrated part of society. The policemay increase its efficiency if well-functioning relationships are estab-lished between them and other public bodies on different levels and,in particular, between the police and the wider public, the latter oftenbeing represented by groups or organisations of a non-governmentalcharacter.

The recommendation leaves open how to implement this principle.Different models exist in Europe of how the police co-operate with otheragencies and bring the police closer to the community. Decentralisationof the police organisation is generally considered as an important means.However, this is often closely related to the extent to which local democ-racy is developed in a country. “Community policing” was initiallydeveloped in the United Kingdom as a way to involve the whole com-munity in crime prevention in particular, but also in detecting crime.Many European countries have followed this model.

Urban insecurity in the bigger cities in Europe is an example of a multi-faceted problem, often related to phenomena such as poverty, racismand juvenile delinquency, which cannot be effectively combated solelyby police action, but which requires a wider society approach with manyplayers involved.

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19. Police organisations shall be ready to give objective information ontheir activities to the public, without disclosing confidential informa-tion. Professional guidelines for media contacts shall be established.

Commentary

The police should be as transparent as possible towards the public. Areadiness by the police to disclose information on its activities is crucialfor securing public confidence. At the same time, the police must respectconfidentiality for a number of reasons ; integrity of persons, crimeinvestigation reasons, the principle of the presumption of innocence,security reasons etc. Obviously, even if situations like those described arewell regulated in most states, there will always be a margin of apprecia-tion left to the police in striking the balance between the two interests.In addition, communication between the police and the media can bedifficult, and may not always be well prepared from the police side.Therefore, it is recommended that the police establish guidelines fortheir media contacts. It is noted that in some member states mediarelations are being dealt with in departments especially tasked for suchcontacts. A key principle should always be that of objectivity.

20. The police organisation shall contain efficient measures to ensurethe integrity and proper performance of police staff, in particular, toguarantee respect for individuals’ fundamental rights and freedoms asenshrined, notably in the European Convention on Human Rights.

Commentary

The concern in paragraph 20 is to enhance a police culture which inrecognising its responsibility for upholding individuals’ fundamentalrights and freedoms, works to safeguard its own professional integritythrough internal accountability measures. This could be realised in dif-ferent ways. The leadership and management of the police certainly playan important role in establishing an ethos, which upholds individualrights and the principle of non-discrimination, both within the organisa-tion and in dealings with the public. Other means are an open commu-nication between staff (horizontal as well as vertical), standard setting(professional codes of conduct) and monitoring. It is clear that recruit-ment and training play an important role in this respect. (Externalaccountability is dealt with in section VI.)

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21. Effective measures to prevent and combat police corruption shallbe established in the police organisation at all levels.

Commentary

There is no common international definition of corruption. The qualifi-cation of what should be considered as corruption varies from country tocountry. The Criminal Law Convention on Corruption adopted by theCouncil of Europe in 1999, does not provide a uniform definition of cor-ruption. However, it aims at developing common standards concerningcertain corruption offences such as bribery (active and passive).

The term “police corruption” is often used to describe a great variety ofactivities, such as bribery, fabrication or destruction of evidence,favouritism, nepotism, etc. What seems to be a common understandingof police corruption is that it necessarily involves an abuse of position, anabuse of being a police official. Moreover, it is widely recognised that corruption should be regarded as a constant threat to the integrityof the police and its proper performance under the rule of law in allmember states.

Paragraph 21 aims at encouraging member states to put in placeeffective internal measures to combat corruption within their policeorganisations. This could include measures to define corrupt behaviour,as far as possible ; that the causes for corruption in the police be studied,and that organisational structures and control mechanisms to combatcorruption be established.

It should be mentioned that corruption has only in recent years becomea focal point on the international agenda. Nowadays, member statesconsider corruption a real threat to democracy, the rule of law and theprotection of human rights, and, as a result, the Council of EuropeCommittee of Ministers, being the pre-eminent European institution todefend these rights, has developed a series of instruments for the fightagainst corruption ; the Resolution on the twenty guiding principles forthe fight against corruption ((97) 24) and Recommendations on thestatus of public officials in Europe (No. R (2000) 6) and on codes ofconduct for public officials (No. R (2000) 10), which all apply to thepolice, and the Criminal Law Convention (ETS No. 173) as well as the Civil Law Convention on Corruption (ETS No. 174), adopted in 1999. Moreover, the Group of States against Corruption (GRECO) was

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established in 1998 to monitor corruption in member states. The Councilof Europe is also performing other programmes with the overall objec-tive to the fight against corruption, inter alia in the police sector, whichare open to member states.

B. Qualifications, recruitment and retention of police personnel

22. Police personnel, at any level of entry, shall be recruited on thebasis of their personal qualifications and experience, which shall beappropriate for the objectives of the police.

Commentary

In order to select appropriate candidates for the police, the selectionprocess should be based only on objective criteria. This rule deals withpersonal qualifications, which may be divided into personal skills andexperience. The personal abilities and aptitudes of the applicant, someof which are described in paragraph 23 belong to the former category.The latter category – personal experience – covers both educationalbackground and life experience, often the previous working experienceof candidates. Personal qualifications should meet the objectives of thepolice, see paragraph 1. The same basic principles should apply to allranks although the qualifications may differ. Appointments to the policefor political reasons should be avoided, in particular to posts of anoperational character.

23. Police personnel shall be able to demonstrate sound judgment, anopen attitude, maturity, fairness, communication skills and, whereappropriate, leadership and management skills. Moreover, they shallpossess a good understanding of social, cultural and community issues.

Commentary

The listed examples of personal skills are important for the operationalstaff of a police service in a democracy. The list is not exhaustive. Theultimate goal is to have police personnel with a broad understanding ofthe society they serve and whose behaviour is appropriate for fulfillingtheir tasks in accordance with the objectives of the police.

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24. Persons who have been convicted for serious crimes shall bedisqualified from police work.

Commentary

Paragraph 24 sets a minimum standard that should apply to candidates,trainees and fully integrated police personnel. However, it is open toindividual member states to decide what degree of tolerance should begiven to crimes that fall short of the category of “serious crimes”.Furthermore, although the existence of a conviction should be inter-preted as a minimum standard before candidates or personnel aredisqualified from police work, this does not exclude the possibility of can-didates and personnel being disqualified if there is a well-substantiatedsuspicion of criminal activity against them.

25. Recruitment procedures shall be based on objective and non-discriminatory grounds, following the necessary screening of candi-dates. In addition, the policy shall aim at recruiting men and womenfrom various sections of society, including ethnic minority groups, withthe overall objective of making police personnel reflect the society theyserve.

Commentary

In order to be as beneficial as possible to the police, recruitment proce-dures should be carried out in an objective and non-discriminatory way.Some means for achieving this are described in paragraph 22 and itscommentary. Access to the police in a non-discriminatory way also hassupport in the European Convention on Human Rights (Protocol No. 12)as well as in the European Social Charter. The case-law of these instru-ments has in this respect tended to focus on the following grounds :gender, political opinion, religion, race, national and ethnic origin.

The term “necessary screening” of candidates indicates that the recruit-ing authority should have an ex-officio and active research approachwhen scrutinising the background of applicants. This requirement ismore demanding in countries where the public administration, includingthe criminal justice system, is not so well developed or in countries whichare suffering from catastrophes and war, than in countries where publicrecords, such as criminal records, are accurate and easy to access.

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It is a fact that women generally are grossly under-represented in thepolice in all member states, and that this is even more apparent in thehigher ranks and managerial positions than in the basic grades. A similarsituation can generally be described for minority groups, includingethnic minority groups, in all member states.

It is appreciated that the relations between the police and the public willbenefit from the composition of the police reflecting that of society. Thiswill reinforce the efficiency of the police and promote their publicsupport. As a consequence, every effort shall be made to this effect.

The second sentence of the paragraph implies that recruitment policiesshall encourage a representation in the police, which corresponds to thatof the society. Such a policy should be made known to the public andimplemented at a reasonable pace and take full account of the require-ments stated in paragraph 22.

C. Training of police personnel

26. Police training, which shall be based on the fundamental valuesof democracy, the rule of law and the protection of human rights,shall be developed in accordance with the objectives of the police.

Commentary

The police play a prominent role as a defender of the society which theyserve and should preferably share the same fundamental values as thedemocratic state itself. The fostering of democratic values in the police istherefore crucial and training is one of the most important means infurthering such values among personnel. As a result, paragraph 26brings in the fundamental values of all member states of the Council ofEurope as an integrated part of the training of the police.

Ethical and human rights aspects of police work should be introducedpreferably in a problem-oriented context, which focuses on practicalpolice work and gives a solid understanding of the underlying principles.Although member states pay considerable attention to human rightstraining, there is still a great need to encourage this part of policetraining, in particular to develop training methods and material. TheCouncil of Europe is active in this area and several handbooks containing

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practical guidelines on human rights in police training have beendeveloped on an expert level.

27. General police training shall be as open as possible towards society.

Commentary

The principle of openness and transparency of a police organisation,must also be reflected in the training of its staff. A police organisationwhich aims to carry out tasks with the support of the public, must haveits personnel trained in an environment which is as close as possible tosocial realities. This would include the physical environment (place andequipment) as well as the intellectual input to the training.

Police training in closed and remote places, involving students living inbarracks, etc., may be necessary for certain types of specialist training.However, general training of police should, wherever possible, becarried out in “normalised” conditions. Another strong implication ofopenness is that external training, involving institutions other than thepolice, should be offered, in addition to internal training.

Police openness towards society is also beneficial for the dynamics oftraining. In particular, with problem-oriented training, states of affairs insociety must be faithfully reproduced for the training to be effective.

28. General initial training should preferably be followed by in-servicetraining at regular intervals, and specialist, management and leadershiptraining, when it is required.

Commentary

Paragraph 28 contains the principle that police personnel, as a rule,initially, shall undergo general training and that initial training should befollowed, if need be, by more specialised training. Such a system willhelp to create a staff familiar with the same basic values of policing andcapable of carrying out a variety of tasks. The approach of trainingpolice personnel as generalists initially does not rule out the fact thatpolice personnel in addition need special training relating to specifictasks and responsibilities (for example, according to their ranks). Theparagraph also underlines the need to complement initial training within-service training at regular intervals.

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Police training is closely related to the system of recruitment to thepolice. There are states where all police personnel, as a rule, are recruitedas basic grades (United Kingdom model) and systems where basic gradestaff and managerial staff could be recruited through separate proceed-ings (continental Europe), as a requirement for being recruited to thelatter category is often a university degree. The principles in this ruleapply to both these systems.

29. Practical training on the use of force and limits with regard toestablished human rights principles, notably the European Conventionon Human Rights and its case-law, shall be included in police trainingat all levels.

Commentary

The practical aspects on the use of force by the police, in particular vis-à-vis individuals or groups of individuals are of such crucial impor-tance for the police in a rule of law society, that it has been highlightedby this separate pararaph. Practical training would imply that it shouldbe as close to reality as possible.

30. Police training shall take full account of the need to challenge andcombat racism and xenophobia.

Commentary

Paragraph 30 draws attention to the problem of racism and xenophobiawhich exists in many European countries, and is an important factor inurban insecurity. Police training should, whenever necessary, challengeany racist or xenophobic attitudes within the police organisation, andalso emphasise the importance of effective police action against crimeswhich are based on race hatred and target ethnic minorities.

D. Rights of police personnel

31. Police staff shall as a rule enjoy the same civil and political rightsas other citizens. Restrictions to these rights may only be made whenthey are necessary for the exercise of the functions of the police in ademocratic society, in accordance with the law, and in conformity withthe European Convention on Human Rights.

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Commentary

The paragraphs of this section are guided by the overall principle thatpolice in an open democratic society should have the same rights asother citizens, to the fullest possible extent. This is an important elementof the rule of law and of making the police organisation part of thesociety it serves.

The rights covered by the European Convention on Human Rights (civiland political rights) apply fully to all citizens in member states, includingthose employed by the police. Some of these rights are absolute in theircharacter, whereas others may be derogated under special conditions. Inthis respect, reference is made to the extensive case-law developed bythe European Court of Human Rights.

Paragraph 31 emphasises that member states shall not deprive theirpolice staff of any civil and political rights, unless there are legitimatereasons directly connected to the proper performance of police duties ina democratic state governed by the rule of law.

32. Police staff shall enjoy social and economic rights, as publicservants, to the fullest extent possible. In particular, staff shall have theright to organise or to participate in representative organisations, toreceive an appropriate remuneration and social security, and to beprovided with special health and security measures ; taking into accountthe particular character of police work.

Commentary

Paragraph 32 refers to social and economic rights, which are covered bythe European Social Charter, a complementary instrument to theEuropean Convention on Human Rights for these particular rights.

Police personnel have the status of public servants (or civil servants) inseveral member states. As this is not the case in all member states, it isrecommended that police personnel, as far as possible, should enjoysocial and economic rights as public servants. Such rights may be limitedbecause of the special character of police work. The social and economicrights listed in the paragraph highlight a few crucial rights but the list isnot exhaustive.

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The right to “organise” (that is, to join trade unions) has in the EuropeanSocial Charter (Article 5) a special interpretation when it comes to thepolice, as the Charter in this respect leaves a margin of appreciation toindividual states. However, the case-law under the Charter has estab-lished that, even if there is no unlimited right for the police to “organ-ise”, it would be a violation of the Charter to forbid police officers to setup their own representative associations. National law may provide forpolice-only associations, which is the case in some member states.However, a complete ban on the police’s right to strike is not contradic-tory to the Charter and its case-law, and the present recommendationdoes not go any further.

The rights to appropriate remuneration and social security, as well asspecial health and security measures have been highlighted in therecommendation because of the special character of police work. Thisrefers, for example, to the unpredictable tasks that police personnel arefacing every day, to the risks and dangers inherent in police work and tothe irregular working hours. Moreover, these rights of police personnelare also crucial conditions for making the police profession attractive.This aspect is extremely important, considering the need for highlyqualified staff to be recruited to, and retained within, the police. Further-more, a well-remunerated police personnel is more likely not to beinvolved in undesirable activities, such as corruption.

33. Disciplinary measures brought against police staff shall be subjectto review by an independent body or a court.

Commentary

Disciplinary sanctions against police personnel are normally an internalpolice matter and are often of a minor nature. However, disciplinarymeasures may also be severe and sometimes it is difficult to draw theline between the criminal and the disciplinary aspects of a case.Furthermore, criminal proceedings and sanctions may be followed bydisciplinary measures.

The possibility of having disciplinary decisions challenged by an inde-pendent body, preferably a court of law has two main advantages. First,it would provide police personnel with a safeguard against arbitrarydecisions. Second, it opens up the police to society (transparency), in

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52

particular, given that court hearings and judgments/decisions of courtsare normally made public.

Another, more legalistic aspect is that if disciplinary measures weresubject to review by a court of law, the right to a fair trial, accordingto Article 6 of the European Convention on Human Rights, which incertain situations applies also to disciplinary matters, would always besafeguarded.

34. Public authorities shall support police personnel who are subject to ill-founded accusations concerning their duties.

Commentary

Police personnel, as a result of their particular tasks and close contactswith the public, will sometimes be the subject of accusations by thepublic concerning their performance. If such accusations are ill-founded(following impartial investigations/proceedings) police personnel shouldbe entitled to the necessary support from their authorities, in particular,concerning personal assistance. (Police complaints systems are dealtwith in section VI.) Paragraph 34 does not exclude the fact that supportto police personnel may be required in other situations, such as duringinternal proceedings against staff.

V. Guidelines for police action/intervention

Commentary

This part of the recommendation deals to a large extent with guidelinesfor operational police personnel in their daily activities. During thepreparatory work for the recommendation, reference was sometimesmade to “internal ethics” for this part of the text as opposed to the“broader ethics of the police” for the sections which concern the frame-work for police in a democratic society, their place in the criminal justicesystem, organisational structures, etc.

The guidelines are divided into two parts, one dealing with generalprinciples of democratic policing which apply to almost any situation,and the other devoted to principles for specific situations which provideparticular difficulties in terms of ethics and human rights in all memberstates.

3271

A. Guidelines for police action/intervention : general principles

35. The police and all police operations must respect everyone’s rightto life.

Commentary

Paragraph 35, which is based on Article 2 of the European Conventionon Human Rights, implies that the police and their operations shall notengage in intentional killings. Considering Article 2 of the EuropeanConvention on Human Rights in the light of Protocol No. 6 to the same Convention, concerning the abolition of the death penalty, itshould also be excluded that the police be used for the execution ofcapital punishment.

Another factor is that police actions may lead to the loss of life as a resultof the use of force by the police. That may not necessarily violate therespect for the right to life, provided that certain conditions are fulfilled.

Article 2 of the European Convention on Human Rights, which containsthe prohibition of intentional deprivation of life, requires that everyone’slife shall be protected by the law. The second paragraph of Article 2reads :

“Deprivation of life shall not be regarded as inflicted in contraven-tion of this article when it results from the use of force which is nomore than absolutely necessary :

a. in defence of any person from unlawful violence ;

b. in order to effect a lawful arrest or to prevent the escape of aperson lawfully detained ;

c. in action lawfully taken for the purpose of quelling a riot orinsurrection.”

The European Court of Human Rights (see, for example McCann andothers v. the United Kingdom, European Court of Human Rights, SeriesA, No.324-A) has held that these exceptions primarily describe situa-tions where it is permitted to use force which may result, as an unin-tended outcome, in the deprivation of life. The use of force may be nomore than absolutely necessary for the achievement of one of the pur-poses set out in a, b and c. “Absolutely necessary” implies, according tothe European Court of Human Rights, in particular, that the force used

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must be strictly proportionate to the achievements of the aims men-tioned (a, b and c).

The training of police personnel in this respect is of utmost importance.

36. The police shall not inflict, instigate or tolerate any act of torture orinhuman or degrading treatment or punishment under any circum-stances.

Commentary

The prohibition of torture or inhuman or degrading treatment or pun-ishment contained in paragraph 36, derives from Article 3 of theEuropean Convention on Human Rights. The European Court of HumanRights clearly and systematically affirms that Article 3 of the EuropeanConvention enshrines one of the fundamental values of democraticsocieties and that the prohibition is absolute. That means that under nocircumstances can it be admissible for the police to inflict, instigate ortolerate any form of torture for any reason. The word “tolerate” impliesthat the police should even have an obligation to do their utmost tohinder such treatment, which also follows from the overall objectives ofthe police, see paragraphs 1 and 38 of the code.

In addition to the fact that torture, inhuman or degrading treatment orpunishment is a serious offence against human dignity and a violation ofhuman rights, such measures, when used for the purpose of obtaining aconfession or similar information, may, and are even likely to, lead toincorrect information from the person who is subject to torture or similarmethods. Thus, there is no rational justification for using such methodsin a state governed by the rule of law.

It is clear that both physical and mental suffering are covered by theprohibition. For a more detailed analyses on what kinds of behaviour arecovered by torture, inhuman or degrading treatment, reference is madeto the case-law of the European Court of Human Rights as well as to theprinciples developed by the European Committee for the Prevention ofTorture and Inhuman or Degrading Treatment or Punishment (CPT).These bodies have provided a rich source of guidance which mustgovern police action and be used in the training of police personnel.

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It goes without saying that a police service that uses torture or inhumanor degrading treatment or punishment against the public are unlikely toearn the respect or confidence of the public.

37. The police may use force only when strictly necessary and only tothe extent required to obtain a legitimate objective.

Commentary

Paragraph 37 recognises the case-law of the European Court of HumanRights with regard to Article 2 of the European Convention on HumanRights, see the commentary to paragraph 34. However, it should benoted that the present rule is applicable to all kinds of situations wherethe police are entitled to use force.

As a starting point, there must always be a legal basis for police opera-tions (paragraph 3 of the code), including the use of force. Arbitrary useof force can never be accepted. Moreover, pararaph 37 indicates thatthe use of force by the police must always be considered as an excep-tional measure and, when there is need for it, no more force than isabsolutely necessary may be used. This implies that the force usedshould be proportionate to the legitimate aim to be achieved throughthe measure of force. There must, accordingly, be a proper balancebetween the using of force and the situation in which the force is used.In practical terms, this means, for example, that no physical force shouldbe used at all, unless strictly necessary ; that weapons should not beused, unless less strictly necessary ; and, if lethal weapons are deemednecessary, they should not be used beyond what is considered strictlynecessary – shoot to warn before shoot to wound and do not woundmore than is strictly necessary, etc.

Normally, national legislation and regulations should contain provisionson the use of force based on the principles of necessity and proportion-ality. However, the practical approach to the problem in a given situationis more difficult as the use of force, according to the above principles,places a heavy burden on the police and emphasises the need for policepersonnel not only to be physically fit and equipped but also, to a largeextent, to have well-developed psychological skills. The importance ofrecruitment of suitable personnel to the police, as well as their trainingcannot be under estimated in this respect, (see also paragraphs 23 and 29).

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38. Police must always verify the lawfulness of their intended actions.

Commentary

It is a basic requirement that the police, in a society governed by therule of law, conduct only lawful activities. It follows from paragraph 3,that the lawfulness test is not limited only to national law, but includesinternational human rights standards.

Paragraph 38 gives the police an ex-officio obligation to control thelegality of their action before and during their interventions. This appliesto the police as an organisation as well as to the individual police official.A system of checks and balances within the police, as well as training, areimportant means of ensuring that such verification becomes systematic.

39. Police personnel shall carry out orders properly issued by theirsuperiors, but they shall have a duty to refrain from carrying out orderswhich are clearly illegal and to report such orders, without fear of anyform of sanction.

Commentary

Since police personnel, in accordance with pararaph 16, should be heldpersonally liable for their own actions, there must be an opportunity forthem to refuse to carry out orders which are illegal (contrary to the law).The wording “clearly illegal”, has been chosen to avoid incurring policedisobedience in situations where the legality of an order is unclear.

With full respect to the necessary hierarchical structures in the police, theoverall idea of paragraph 39 is to avoid the individual’s responsibility forflagrant illegal activities and human rights violations being “covered up”by hierarchical structures. The operational independence of the policefrom other state bodies (paragraph 15), works in the same direction. Theduty with regard to illegal orders should also contain an obligation toreport such orders. The reporting of illegal orders shall have no negativerepercussion or sanctions on the reporting staff.

40. The police shall carry out their tasks in a fair manner, guided inparticular, by the principles of impartiality and non-discrimination.

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Commentary

The fairness requirement is an overall and open-ended quality, whichcomprises the principles of impartiality and non-discrimination as well asother qualities. The police act with fairness when they show full respectfor the positions and rights of each individual that are subject to theirpolice duties. Fairness should apply to all aspects of police work, but it isparticularly emphasised with regard to the public.

The impartiality requirement implies, for example, that the police shouldact with integrity and with a view to avoiding taking sides in a conflictwhich is under scrutiny. In the case of an offence, the police must take no position on the question of guilt (see also paragraph 47).Furthermore, impartiality requires that police personnel abstain from anyactivity outside the police which is likely to interfere with the impartialdischarge of their police duties or which may give rise to the impressionamongst the public that this is the case.

The general principle of non-discrimination and equality is a fundamen-tal element of international human rights law. With the adoption ofProtocol No. 12 to the European Convention on Human Rights, there isa general prohibition on discrimination contained in that instrument. Thescope of protection against discrimination concerns rights under theEuropean Convention on Human Rights, individual rights directly undernational law or via obligations to public authorities, and acts by publicauthorities in their exercise of discretionary powers or any other act ofsuch a body, for example the police.

Paragraph 40 does not list particular grounds of discrimination.However, there is no intention to deviate from what is contained in the European Convention on Human Rights, which mentions a non-exhaustive list to which further grounds could be added. Examples ofgrounds of discrimination are gender, race, colour, language, religion,political or other opinion, national or social origin, association with anational minority, property, birth or other status, physical or mentaldisability, sexual orientation or age.

Finally, it should be mentioned that in certain cases, unequal treatment,which has an objective and reasonable justification, may not amount todiscrimination, according to the European Convention on Human Rightsand its case-law.

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41. The police shall only interfere with individual’s right to privacywhen strictly necessary and only to the extent required to obtain alegitimate objective.

Commentary

An individual’s “right to privacy” would include the rights covered byArticle 8 of the European Convention on Human Rights : private life,family life, home and correspondence. As a starting point, there mustalways be a legal basis for police operations (paragraph 3 of the code),including that of interference with people’s privacy. Arbitrary inter-ference can never be acceptable. Moreover, the present rule indicatesthat the interference in people’s privacy must always be considered as anexceptional measure and, even when justified, should involve no moreinterference than is absolutely necessary.

42. The collection, storage, and use of personal data by the policeshall be carried out in accordance with international data protectionprinciples and, in particular, be limited to the extent necessary for theperformance of lawful, legitimate and specific purposes.

Commentary

The use of new information technologies largely facilitates police actionagainst different forms of criminality. The registration and the analysis ofpersonal data, in particular, allows the police to cross-check informationand thus to expose networks whose existence would otherewise remainobscure without resort to these tools. However, the uncontrolled use ofpersonal data may constitute violations of the right to privacy of theindividual concerned. In order to avoid abuse at the stages of collection,storage and use of personal data, such police activities must be guidedby principles of data protection. In this respect, the principles expressedin paragraph 42 should be considered in the light of Recommenda-tion No. R (87) 15 of the Council of Europe Committee of Ministersregulating the use of personal data in the police sector.

43. The police, in carrying out their activities, shall always bear inmind everyone’s fundamental rights, such as freedom of thought,conscience, religion, expression, peaceful assembly, movement and thepeaceful enjoyment of possessions.

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Commentary

The rights referred to in paragraph 43 are a recapitulation of rights pro-vided for in the European Convention on Human Rights (Articles 9, 10and 11 of the Convention, Article 1 of its Protocol No. 1 and Article 2 ofProtocol No.4 to the same Convention) , which are essential for theeffective functioning of an open democratic society, but which have notbeen dealt with elsewhere in the recommendation.

The police play a major part in safeguarding these rights – without whichdemocracy becomes an empty notion without any basis in reality –either directly, through safeguarding democratic arrangements, or indi-rectly, through their general responsibility for upholding the rule of law.

44. Police personnel shall act with integrity and respect towards thepublic and with particular consideration for the situation of individualsbelonging to especially vulnerable groups.

Commentary

The police service is judged by the public, to a large extent, how policepersonnel act. Correct behaviour of individual police officials is, there-fore, of ultimate importance for the credibility of the police. In order toearn the respect of the public, it is not sufficient only to act within thelaw, but to apply the law with integrity and respect towards the public ;applying the law with a degree of common sense and never to forget the“public service” element which is a necessary dimension in police work.

Police personnel act with integrity and respect towards the public whenthey are professional, impartial, honest, conscientious, fair and just, polit-ically neutral and courteous. In addition, the police should acknowledgethat the public consists of individuals with individual needs and demands.Vulnerable groups in society call for extra consideration by the police.

45. Police personnel shall during intervention normally be in a positionto give evidence of their police status and professional identity.

Commentary

Paragraph 45, which is closely linked to paragraph 14, has two mainpurposes. Firstly, the intervening police personnel shall as a rule always

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be in a position to give evidence that they belong to the police.Secondly, they shall normally also be in a position to identify them-selves as an individual member of the police (“professional identity”).The requirement that police personnel normally should give evidenceof their professional identity before, during or after intervention isclosely linked to personal police responsibility for action or omission(paragraph 16). Without the possibility of identifying the individualpolice man/woman, personal accountability, seen from the perspectiveof the public, becomes an empty notion. It is clear that the implemen-tation of this regulation must be balanced between the public interestand the safety of police personnel on a case by case basis. It should bestressed that the identification of a member of the police does notnecessarily imply that his/her name be revealed.

46. Police personnel shall oppose all forms of corruption within thepolice. They shall inform superiors and other appropriate bodies ofcorruption within the police.

Commentary

Paragraph 46, which concerns the conduct of police personnel, iscomplementary to that of paragraph 21, which deals with organisationalstructures in the fight against corruption. The paragraph places a posi-tive obligation upon the police official to avoid corrupt behaviour as anindividual and discourage it among colleagues. Police officials shall, inparticular, carry out their duties in accordance with the law, in an honestand impartial way and should not allow their private interests to conflictwith their position in the police. To this end, police officials shall alwaysbe on the alert for any actual or potential conflicts of interest and takesteps to avoid such conflicts. They shall report to their superiors or toother appropriate authorities if they become aware of corrupt behaviourwithin the police.

It should be noted that Council of Europe Committee of MinistersRecommendation No. R (2000) 10 on codes of conduct for public offi-cials (drafted by the Multidisciplinary Group on Corruption, GMC) isapplicable to police organisations and their personnel.

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B. Guidelines for police action/intervention : specific situations

1. Police investigation

47. Police investigations shall, as a minimum, be based upon reason-able suspicion of an actual or possible offence or crime.

Commentary

In order to avoid arbitrary police investigations, a minimum requirementshould be fulfilled before the police initiate any such investigation. Thereshould at least be reasonable (and legitimate) suspicion of an offence orcrime, that is the suspicion must be justified by some objective criteria.

48. The police must follow the principles that everyone charged with acriminal offence shall be considered innocent until found guilty by acourt, and that everyone charged with a criminal offence has certainrights, in particular, the right to be informed promptly of the accusationagainst him/her, and to prepare his/her defence either in person, orthrough legal assistance of his/her own choosing.

Commentary

The principle of the presumption of innocence, contained in Article 6 ofthe European Convention on Human Rights, is one of the most impor-tant rights of individuals in the criminal justice process. The police, oftenthe first link of the chain in this process, have a particularly difficult taskas they must, in an objective manner, investigate a case and no matterhow overwhelming the evidence is against a suspect, must respect thepresumption of innocence. With regard to relations between the policeand the public, in particular the media, the problem becomes even moreaccentuated (see also paragraph 19).

The list of certain additional minimum rights of everyone charged with acriminal offence, also drawn from Article 6 of the European Conventionon Human Rights, is also extremely important for the police to bear inmind, as these rights should be provided for from the start of the crimi-nal justice process ; that is to say, often during the police investigation.

49. Police investigations shall be objective and fair. They shall be sensitiveand adaptable to the special needs of persons, such as children, juveniles,women, minorities, including ethnic minorities and vulnerable persons.

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Commentary

Police work should always be guided by objectivity and fairness. This isparticularly important in police investigations. The objectivity requiredimplies that the police must carry out an investigation impartially, that is,they should base an investigation on all relevant circumstances, facts andevidence, that work both for and against their suspicions. Objectivity isalso a criteria for the fairness requirement, which, in addition, requiresthat the investigation procedure, including the means used, is such as toprovide for an environment that lends itself to a “just” process, where theindividual’s fundamental rights are respected.

The fairness requirement for police investigations also means that con-sideration must be taken of an individual’s right to participate fully. Theinvestigation must, for example, be adapted to take account of thephysical and mental capacities and cultural differences of those involved.Investigations concerning children, juveniles, women and individualsbelonging to minority groups, including ethnic minorities are particularlyimportant in this respect. The investigation should be thorough, with aslimited a risk of disturbance to those subject to the investigation aspossible. Upholding these measures sustains “fair police process”, whichconstitutes the preparatory basis for a “fair trial”.

50. Guidelines for the proper conduct and integrity of police inter-views shall be established, bearing in mind paragraph 48. They shall, inparticular, provide for a fair interview during which those interviewedare made aware of the reasons for the interview as well as other rele-vant information. Systematic records of police interviews shall be kept.

Commentary

This rule, which generally applies to police interviews, originates instatements with regard to the interrogation process in custody made by the European Committee for the Prevention of Torture and Inhumanor Degrading Treatment or Punishment (CPT), as contained in its 2nd General Report (1992) :

“…the CPT considers that clear rules or guidelines should exist onthe way in which police interviews are to be conducted. Theyshould address inter alia the following matters : the informing of the

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detainee of the identity (name and/or number) of those present atthe interview ; the permissible length of an interview ; rest periodsbetween interviews and breaks during an interview ; places in whichinterviews may take place ; whether the detainee may be requiredto stand while being questioned ; the interviewing of persons whoare under the influence of drugs, alcohol, etc. It should also berequired that a record be systematically kept of the time at whichinterviews start and end, of any request made by a detainee duringan interview, and of the persons present during each interview.

The CPT would add that the electronic recording of police inter-views is another useful safeguard against the ill-treatment ofdetainees (as well as having significant advantages for the police).”

Paragraph 50, is applicable to all police interviews, regardless of whetherthose subject to the interview are in custody or not.

51. The police shall be aware of the special needs of witnesses andshall be guided by rules for their protection and support during aninvestigation, in particular, where intimidation of witnesses is at risk.

Commentary

Police personnel must be competent in handling the early stages of aninvestigation, in particular, contacts with those implicated in a crime. Theproper protection of witnesses is necessary for their safety, which is acrucial condition for them to give evidence and thus for the outcome ofthe investigation. When intimidated witnesses are afraid of the possibleconsequences of giving evidence, investigative techniques must be flex-ible, and take this into account. The problem of intimidated witnesses isparticularly critical in situations, such as those related to terrorism, toorganised crime, to drug-related crime and to violence within the family.Moreover, in cases where the witnesses are also victims of the crime, thehandling of witnesses becomes even more complex.

Paragraph 51 underlines how important it is for the police to be awareof the special needs of witnesses in different situations, and their pro-tection. Not only does this call for special training of police personnel,but guidelines are also necessary to determine the proper handling of witnesses by the police. In this respect reference is made to the exten-sive work already carried out by the Council of Europe concerning

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witness and victim protection (Committee of Ministers’ Recommenda-tions No. R (85) 4 on the violence in the family, No. R (85) 11 on theposition of the victim in the framework of criminal law and procedure,No. R ((87) 21 on assistance to victims and prevention of victimisation,No. (91) 11 on sexual exploitation, pornography and prostitution of,and trafficking in children and young adults, No. R (96) 8 on crime policyin Europe in a time of change, and No. R (97) 13 on intimidation ofwitnesses and the rights of the defence).

52. Police shall provide the necessary support, assistance and informa-tion to victims of crime, without discrimination.

Commentary

Paragraph 52 summarises the police duties of providing assistance andinformation for victims of crime as stated in Recommendation No. R (85) 11on the position of the victim in criminal law and procedure. In addi-tion, the paragraph places an obligation on the police to provide thenecessary support for victims, which implies that there is a readiness andcapacity within the police to provide such support either directly orthrough other agencies and organisations.

53. The police shall provide interpretation/translation where necessarythroughout the police investigation.

Commentary

Paragraph 53 of the code complements Article 5.2 of the EuropeanConvention on Human Rights, which gives everyone who is arrested theright to be informed of the reasons for the arrest, and the charge againstthem, in a language which they understand.

2. Arrest/deprivation of liberty by the police

54. Deprivation of liberty of persons shall be as limited as possible andconducted with regard to the dignity, vulnerability and personal needsof each detainee. A custody record shall be kept systematically for eachdetainee.

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Commentary

Deprivation of liberty must be regarded as an exceptional measure,which may never be used unless absolutely necessary and must belimited in time. As with all police operations, this measure must alwaysbe lawful. Paragraph 54 emphasises that with every arrest/deprivationof liberty, the individual needs of the person concerned must be fullyconsidered.

In accordance with the statement of the European Committee for thePrevention of Torture and Inhuman or Degrading Treatment orPunishment, in its 2nd General Report (1992), a comprehensive custodyrecord should be kept for each arrested person/detainee :

“The CPT considers that the fundamental safeguards granted topersons in police custody would be reinforced (and the work ofpolice officers quite possibly facilitated) if a single and comprehen-sive custody record were to exist for each person detained, onwhich would be recorded all aspects of his custody and action takenregarding them (when deprived of liberty and reasons for thatmeasure ; when told of rights ; signs of injury, mental illness, etc ;when next of kin/consulate and lawyer contacted and when visitedby them ; when offered food ; when interrogated ; when transferredor released, etc.). For various matters (for example, items in theperson’s possession, the fact of being told of one’s rights and ofinvoking or waiving them), the signature of the detainee should beobtained and, if necessary, the absence of a signature explained.Further, the detainee’s lawyer should have access to such a custodyrecord.”

55. The police shall, to the extent possible according to domestic law,promptly inform persons deprived of their liberty of the reasons for thedeprivation of their liberty and of any charge against them, and shallalso without delay inform persons deprived of their liberty of theprocedure applicable to their case.

Commentary

Paragraph 55 brings to the attention the right provided for in Article 5.2of the European Convention on Human Rights (“[e]veryone who isarrested shall be informed promptly, in a language which he understands,

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of the reasons for his arrest and of any charge against him.”) and astatement by the European Committee for the Prevention of Torture andInhuman or Degrading Treatment or Punishment in its 2nd GeneralReport (1992), that persons “taken into police custody should beexpressly informed without delay of all their rights” (including thosecontained in paragraph 56). To this has been added that personsdeprived of their liberty should also be informed of the procedure oftheir case. (The wording “to the extent possible according to domesticlaw” is used as this information is sometimes provided by authoritiesother than the police, such as the public prosecution service.)

56. The police shall provide for the safety, health, hygiene and appro-priate nourishment of persons in the course of their custody. Police cellsshall be of a reasonable size, have adequate lighting and ventilationand be equipped with suitable means of rest.

Commentary

Paragraph 56 gives the police full responsibility for the standard of thephysical environment of persons deprived of their liberty, who are keptin police facilities. The paragraph implies that the police have an obliga-tion to care actively for the safety of persons kept in their custody. Theyshould take full responsibility for safeguarding those in their custodyfrom harm, originating either from outside or inside the custody, includ-ing self-inflicted harm by the detainee. This would, for example, involvethe separation of dangerous persons. Furthermore, deterioration in thehealth of the person deprived of liberty – mental as well as physical –should, as far as possible, be prevented and medical care provided ifnecessary. This may also imply that instructions of doctors or othercompetent medical personnel must be followed. The police should alsoprovide for appropriate hygiene, including toilet facilities, and food.

Police cells should be of a reasonable size, considering the number ofpersons accommodated. Furthermore, there should be “adequate light-ing”, preferably natural day light as well as artificial light. “Adequateventilation” implies that fresh air should be available at an appropriatetemperature. Suitable means of rest, bed or chair, should be provided forall persons kept in police custody. (Reference is also made to furtherstandards established by the European Committee for the Prevention ofTorture and Inhuman or Degrading Treatment or Punishment.)

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57. Persons deprived of their liberty by the police shall have the rightto have the deprivation of their liberty notified to a third party of theirchoice, to have access to legal assistance and to have a medical exami-nation by a doctor, whenever possible, of their choice.

Commentary

This rule is based on the three rights of persons who are deprived of theirliberty by the police, which have been identified by the EuropeanCommittee for the Prevention of Torture and Inhuman or DegradingTreatment or Punishment (CPT) :

“The CPT attaches particular importance to three rights for personsdetained by the police : the right of the person concerned to havethe fact of his detention notified to a third party of his choice(family member, friend, consulate), the right of access to a lawyer,and the right to request a medical examination by a doctor of hischoice (in addition to any medical examination carried out by adoctor called by the police authorities). They are, in the CPT’sopinion, three fundamental safeguards against the ill-treatment of detained persons which should apply as from the very outset of deprivation of liberty, regardless of how it may be describedunder the legal system concerned (apprehension, arrest, etc.).”(CPT 2nd General Report, 1992)

58. The police shall, to the extent possible, separate persons deprivedof their liberty under suspicion of having committed a criminal offencefrom those deprived of their liberty for other reasons. There shallnormally be a separation between men and women as well as betweenadults and juveniles.

Commentary

Out of respect for the dignity and integrity of individuals and theirneeds, the police should avoid, whenever possible, keeping criminal sus-pects together with other categories of persons deprived of their liberty(for example, immigration detainees). This rule is in accordance withprinciples established by the European Committee for the Prevention ofTorture and Inhuman or Degrading Treatment or Punishment. Other

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grounds for separation are gender and age, however, separation onthese grounds must also take into account personal needs and decency.

VI. Accountability and control of the police

59. The police shall be accountable to the state, the citizens and theirrepresentatives. They shall be subject to efficient external control.

Commentary

The police shall be accountable to the state (through central, regional orlocal bodies) from which it derives its policies and powers. Accordingly,there are state bodies to monitor and control the police in all memberstates. However, state control over the police must, in an open demo-cratic society, be complemented by the means for the police to beanswerable to the public, that is the citizens and their representatives.Police accountability vis-à-vis the public is a crucial condition for makingco-operation between the police and the public a reality.

There are several means of rendering the police accountable to thepublic. Accountability can be direct or channelled through bodies repre-senting the public. Generally, openness and transparency of the policeare, however, basic requirements for accountability/control to be effec-tive. Complaints procedures, dialogue and co-operation as means ofaccountability are included in paragraphs 59 to 63.

60. State control of the police shall be divided between the legislative,the executive and the judicial powers.

Commentary

In order to make the control of the police as efficient as possible, thepolice should be made accountable to various independent powers ofthe democratic state, that is the legislative, the executive and the judicialpowers.

In a simplified model, the legislative power (the parliament) exercises an a priori control by passing laws that regulate the police and theirpowers. Sometimes the legislative power also performs an a posteriori

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control through “justice and interior commissions” or through “parlia-mentary ombudsmen”, who may initiate investigations, ex officio orfollowing complaints by the public concerning maladministration.

The executive power (government : central, regional or local), to whichthe police are accountable in all states, have a direct control over thepolice as the police are part of the executive power. The police receivetheir means from the budget which is decided by the government(sometimes approved by the parliament). Furthermore, the policereceive directives from the government as to the general priority of theiractivities and the government also establishes detailed regulations forpolice action. It is important to emphasise that the police should beentrusted with operational independence from the executive in thecarrying out their specific tasks (see also paragraph 15).

The judicial powers (in this context comprising the prosecution serviceand the courts) should constantly monitor the police in their functions asa component of the criminal justice system.

The judicial powers (in this context the courts), also perform an a poste-riori control of the police through civil and criminal proceedings initiatedby other state bodies as well as by the public.

It is of the utmost importance that these powers of the state are allinvolved in the control of the police in a balanced way.

61. Public authorities shall ensure effective and impartial proceduresfor complaints against the police.

Commentary

Complaints against the police should be investigated in an impartial way.“Police investigating the police” is an issue which generally raises doubtsas to impartiality. States must therefore provide systems which are notonly impartial but also seen to be impartial, to obtain public confidence.Ultimately, it should be possible to refer such complaints to a court of law.

62. Accountability mechanisms, based on communication and mutualunderstanding between the public and the police, shall be promoted.

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Commentary

Paragraph 62 encourages the development of public-police relationsthrough accountability mechanisms. These should bring the public closerto the police and would contribute to a better mutual understanding andfoster the settlement of disputes between the police and the public.Mechanisms for such accountability could include a mediation or com-plaints structure that provides contact and negotiation and an informalmethod of dispute resolution. Preferably, such mechanisms should beindependent of the police.

In addition, member states should consider strengthening existing struc-tures, or develop new ones for police accountability in certain situationswhere the police enjoy wide discretion vis-à-vis the individual, for exam-ple in the use of force, when persons are deprived of their liberty, whenthe police interview suspects, and when they use certain investigativemeasures. Transparency and public monitoring of situations, such as theprovision of public access to police cells is an example of such a measure,which is beneficial for the public as well as for the police as it gives thepublic a measure of control as well as helping to counteract any ill-founded accusations against the police.

63. Codes of ethics of the police, based on the principles set out in thepresent recommendation, shall be developed in member states andoverseen by appropriate bodies.

Commentary

Member states are encouraged to develop codes of ethics based on thevalues reflected in this recommendation. It may be difficult to distinguishbetween ethical codes and codes of conduct, however, these shouldclearly be distinguished from disciplinary instruments, as the latter areaimed rather at defining what constitutes a breach of professionalconduct and its internal consequences.

Ethical codes should be overseen by appropriate bodies. It is up tomember states to give this task to existing bodies or to create new ones.Such bodies should, for example, be independent from the police, be astransparent as possible towards the public and at the same time have an understanding of police matters. The ombudsman institution is anexample of such a body.

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VII. Research and international co-operation

64. Member states shall promote and encourage research on thepolice, both by the police themselves and external institutions.

Commentary

The police is an important institution of a democratic state governed bythe rule of law. It is a vital component of the criminal justice system andthe body responsible for public order. The police is provided with specificpowers and should be, at the same time, an integrated part of thesociety it serves, etc.

Such a multifaceted body clearly warrants the best critical attention inthe form of research and police studies. Internal police research shouldtherefore be complemented with research on the police by institutionsindependent of the police. A close link between police training anduniversities is an example of a measure that would serve such a researchpurpose.

65. International co-operation on police ethics and human rightsaspects of the police shall be supported.

Commentary

The values and principles expressed in the recommendation need to beimplemented through legislation, regulations and training. In addition,acceptance of these values should grow from within the police. Forthese reasons there is a need to stimulate international co-operationbetween the police in Europe, including states and international organi-sations, such as ICPO-Interpol, Europol and Cepol. The Council of Europe,with its particular expertise in articulating democratic values, ethics,human rights and the rule of law, has an important role in facilitating thisco-operation.

66. The means of promoting the principles of the present recommen-dation and their implementation must be carefully scrutinised by theCouncil of Europe

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Commentary

The adoption of the European Code of Police Ethics is in itself an impor-tant step for the promotion of Council of Europe principles with regardto the police in member states. However, the principles contained in thecode should also be actively promoted following its adoption.

First, the code is a basic text which should be complemented with otherCouncil of Europe legal instruments targeting specific topics more indepth.

Second, an intergovernmental structure within the Council of Europecould be a useful basis for furthering police matters in member states.Considering that the police in all member states are bodies closely asso-ciated with the criminal justice systems and their activities are mainlyrelated to law and order, crime prevention and crime control, follow-upaction should preferably be considered in such a context. The know-how and expertise built up with regard to police ethics, criminal justice,the individual’s fundamental rights, and the rule of law, could in such away be maintained in the future within the Council of Europe.

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Appendix to the explanatory memorandum

The following persons participated in the work of the Committee of Experts onPolice Ethics and Problems of Policing (PC-PO), 1998 - 2001 :

Member states: Mr Albin Dearing (Austria), Mr Luc Boghaert, Mr Claude Gillardand Mr Jean-Paul Wuyts (Belgium), Mr Drazen Ivanusec and Mr ZdravkoZidovec (Croatia), Mr George Panayiotou, Mr Harry Stavrou and Mr KyracosTheophilou (Cyprus), Mr Radim Bures, Mr Tomás Buril and Ms Hana Snajdrová(Czech Republic), Mr Thomas Jacobi and Mr Karsten Petersen (Chairman of PC-PO) (Denmark), Ms Dominique-Antoinette Gaux, Ms Magali Ingall-Montagnier, Mr Jean-Amédée Lathoud, Mr Hugues Lebeau, Mr EmmanuelMiglierina, Mr Jean-Louis Ottavi and Mr José R-V Razafindranaly (France), M. Efstratios Papathnassopoulos (Greece), Mr Giovanni Cataldo and Mr FrancescoMandoi (Italy), Mr Darius Grebliauskas and Mr Edmundas Janku-nas (Lithuania), M. Alexander Bordian and Ms Nelea Didic (Moldova), Mr Andrzej Wis’niewski(Poland), Mr Alberto Borges, Mr José Manuel Carrolo and Ms Silvia Pedrosa(Portugal), Mr Pavel Abraham (Romania), Mr Janez Mekinc (Slovenia), Mr JuanMaría Cabo Mansilla, Mr Domingo Perez Castaño and Mr Manuel MarionMainer (Spain), Mr Alexandar Doncev and Mr Nikola Matovski (“the FormerYugoslav Republic of Macedonia”), Mr Osman Balci, Mr Kemal Baslar, Mr VahitBicak, Mr Ibrahim Cerrah, Mr Kadri Özkan and Mr Mustafa Yavwz (Turkey), Mr Hugh Orde and Mr John Slater (United Kingdom).

Observers: Mr Etienne de Perier (European Commission), Mr Olivier Foures andMr Laurent Grosse (ICPO-Interpol), Mr Guido Brummelkamp, Mr Juan MaríaCabo Mansilla and Mr Emmanuel Miglierina (AEPC) and Mr Edouard Janssens(Intercenter).

Scientific Experts: Mr Amadeu Recasens I Brunet (Spain) and Mr Neil Richards(United Kingdom).

Secretariat: Mr Björn Janson, Council of Europe.

For further information, please contact :

Unit for Police MattersDepartment of Crime ProblemsDirectorate General I – Legal AffairsCouncil of EuropeF-67075 Strasbourg Cedex

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1989/61. Guidelines for the effective implementation of the Code of Conduct for Law Enforcement

Officials

The Economic and Social Council.

Recalling General Assembly resolution 34/169 of 17 December 1979, by which the Assembly adopted the

Code of Conduct for Law Enforcement Officials set forth in the annex to the resolution,

Recalling also resolution 14 of the Seventh United Nations Congress on the Prevention of Crime and the

Treatment of Offenders, in which the Congress, inter alia, called attention to the guidelines for the more

effective implementation of the Code formulated at the Interregional Preparatory Meeting for the Seventh

Congress on the topic "Formulation and application of United Nations standards and norms in criminal

justice", held at Varenna, Italy, in 1984,

Bearing in mind its resolution 1986/10, section, IX, of 21 May 1986, in which it requested the Committee

on Crime Prevention and Control, at its tenth session to consider measwer for the more effective

implementation of the Code, in the light of the guidance provided by the Seventh Congress,

Having considered the report of the Committee on Crime Prevention and Control on its tenth session,96

Guided by the desire to promote the implementation of the Code,

1. Adopts the Guidelines for the Effective Implementation of the Code of Conduct for Law Enforcement

Officials, recommended by the Committee on Crime Prevention and Control and annexed to the present

resolution;

2. Invites the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders

and its preparatory meetings to explore ways and means of stimulating adherence to the Guidelines.

15th plenary meeting

24 May 1989

ANNEX

Guidelines for the Effective Implementation of the Code of Conduct for Law Enforcement

Officials

I. Application Of The Code

A. General principles

1. The principles embodied in the Code shall be reflected in national legislation and practice.

2. In order to achieve the aims and objectives set out in article 1 of the Code and its Commentary,

the definition of "law enforcement officials" shall be given the widest possible interpretation.

3. The Code shall be made applicable to all law enforcement officials, regardless of their jurisdiction.

4. Governments shall adopt the necessary measures to instruct, in basic training and all subsequent training

and refresher courses, law enforcement officials in the provisions of national legislation connected with the

Code as well as other basic texts on the issue of human rights.

B. Specific issues

1. Selection, education and training: The selection, education and training of law enforcement officials shall

be given prime importance. Governments shall also promote education and training through a fruitful

exchange of ideas at the regional and interregional levels.

3241

2. Salary and working conditions: All law enforcement officials shall be adequately remunerated and shall

be provided with appropriate working conditions.

3. Discipline and supervision: Effective mechanism shall be established to ensure the internal discipline and

external control as well as the supervision of law enforcement officials.

4. Complaints by members of the public: Particular provisions shall be made, within the mechanisms

mentioned under paragraph 3 above, for the receipt and processing of complaints against law enforcement

officials made by members of the public, and the existence of these provisions shall be made known to the

public.

II. Implementation Of The Code

A. At the national level

1. The Code shall be made available to all law enforcement officials and competent authorities in

their own language.

2. Governments shall disseminate the Code and all domestic laws giving effect to it so as to ensure that the

principles and rights contained therein become known to the public in general.

3. In considering measures to promote the application of the Code, Governments shall organize symposia

on the role and functions of law enforcement officials in the protection of human rights and the prevention

of crime.

B. At the international level

1. Governments shall inform the Secretary-General at appropriate intervals of at least five years on the

extent of the implementation of the Code.

2. The Secretary-General shall prepare periodic reports on progress made with respect to the

implementation of the Code, drawing also on observations and on the co-operation of specialized

agencies and relevant intergovernmental organizations and non-governmental organizations

in consultative status with the Economic and Social Council.

3. As part of the reports mentioned above Governments shall provide to the Secretary-General

copies of abstracts of laws, regulations and administrative measures concerning the applications

of the Code, any other relevant information on its implementation, as well as information on possible

difficulties in its application.

4. The Secretary-General shall submit the above-mentioned reports to the Committee on Crime Prevention

and Control for consideration and further action, as appropriate.

5. The Secretary-General shall make available the Code and the present guidelines to all States and

intergovernmental and non-governmental organizations concerned, in all official languages of the United

nations.

6. The United Nations, as part of its advisory services and technical co-operation and development

programmes, shall:

(a) Make available to Governments requesting them the services of experts and regional and

interregional advisers to assist in implementing the provisions of the Code;

(b) Promote national and regional training seminars and other meetings on the Code and on the

role and functions of law enforcement officials in the protection of human rights and the prevention of

3240

crime.

7. The United Nations regional institutes shall be encouraged to organize seminars and training courses on

the Code and to carry out research on the extent to which the Code is implemented in the countries of the

region as well as the difficulties encountered.

96 Official Records of the Economic and Social Council, 1988, Supplement No.10 (E/1988/20).

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United Nations A/RES/55/89

General AssemblyDistr.: General

22 February 2001

Fifty-fifth session

Agenda item 114 (a)

00 56473

Resolution adopted by the General Assembly

[on the report of the Third Committee (A/55/602/Add.1)]

55/89. Torture and other cruel, inhuman or degrading treatment

or punishment

The General Assembly,

Recalling article 5 of the Universal Declaration of Human Rights,1 article 7 of

the International Covenant on Civil and Political Rights,2 the Declaration on the

Protection of All Persons from Being Subjected to Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment3 and its resolution 39/46 of

10 December 1984, by which it adopted and opened for signature, ratification and

accession the Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, and all its subsequent relevant resolutions,

Recalling that freedom from torture is a right that must be protected under all

circumstances, including in times of internal or international disturbance or armed

conflict,

Recalling also that the World Conference on Human Rights, held at Vienna

from 14 to 25 June 1993, firmly declared that efforts to eradicate torture should, first

and foremost, be concentrated on prevention and called for the early adoption of an

optional protocol to the Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, which is intended to establish a preventive

system of regular visits to places of detention,4

Urging all Governments to promote the speedy and full implementation of the

Vienna Declaration and Programme of Action, adopted by the World Conference on

Human Rights on 25 June 1993,5 in particular the section relating to freedom from

torture, in which it is stated that States should abrogate legislation leading to

impunity for those responsible for grave violations of human rights, such as torture,

and prosecute such violations, thereby providing a firm basis for the rule of law,6

1 Resolution 217 A (III).

2 See resolution 2200 A (XXI), annex.

3 Resolution 3452 (XXX), annex.

4 A/CONF.157/24 (Part I), chap. III, sect. II, para. 61.

5 Ibid., chap. III.

6 Ibid., sect. II, paras. 54-61.

3232

A/RES/55/89

2

Recalling its resolution 36/151 of 16 December 1981, in which it noted with

deep concern that acts of torture took place in various countries, recognized the need

to provide assistance to the victims in a purely humanitarian spirit and established

the United Nations Voluntary Fund for Victims of Torture,

Recalling also the recommendation in the Vienna Declaration and Programme

of Action that high priority should be given to providing the necessary resources to

assist victims of torture and effective remedies for their physical, psychological and

social rehabilitation, inter alia, through additional contributions to the Fund,7

Noting with satisfaction the existence of a considerable international network

of centres for the rehabilitation of victims of torture, which plays an important role

in providing assistance to victims of torture, and the collaboration of the Fund with

the centres,

Commending the persistent efforts by non-governmental organizations to

combat torture and to alleviate the suffering of victims of torture,

Mindful of the proclamation by the General Assembly in its resolution 52/149

of 12 December 1997 of 26 June as the United Nations International Day in Support

of Victims of Torture,

1. Condemns all forms of torture, including through intimidation, as

described in article 1 of the Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment;

2. Stresses that all allegations of torture or other cruel, inhuman or

degrading treatment or punishment should be promptly and impartially examined by

the competent national authority, that those who encourage, order, tolerate or

perpetrate acts of torture must be held responsible and severely punished, including

the officials in charge of the place of detention where the prohibited act is found to

have taken place, and that national legal systems should ensure that the victims of

such acts obtain redress and are awarded fair and adequate compensation and

receive appropriate social and medical rehabilitation;

3. Draws the attention of Governments to the Principles on the Effective

Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment annexed to the present resolution, and strongly encourages

Governments to reflect upon the Principles as a useful tool in efforts to combat

torture;

4. Notes with appreciation that one hundred and twenty-two States have

become parties to the Convention;

5. Urges all States that have not yet done so to become parties to the

Convention as a matter of priority;

6. Invites all States ratifying or acceding to the Convention and those States

that are parties to the Convention and have not yet done so to consider joining the

States parties that have already made the declarations provided for in articles 21 and

22 of the Convention and to consider the possibility of withdrawing their

reservations to article 20;

7 Ibid., para. 59.

3231

A/RES/55/89

3

7. Urges all States parties to the Convention to notify the Secretary-General

of their acceptance of the amendments to articles 17 and 18 of the Convention as

soon as possible;

8. Urges States parties to comply strictly with their obligations under the

Convention, including their obligation to submit reports in accordance with

article 19, in view of the high number of reports not submitted, and invites States

parties to incorporate a gender perspective and information concerning children and

juveniles when submitting reports to the Committee against Torture;

9. Emphasizes the obligation of States parties under article 10 of the

Convention to ensure education and training for personnel who may be involved in

the custody, interrogation or treatment of any individual subjected to any form of

arrest, detention or imprisonment;

10. Stresses, in this context, that States must not punish personnel referred to

in paragraph 9 above for not obeying orders to commit or conceal acts amounting to

torture or other cruel, inhuman or degrading treatment or punishment;

11. Welcomes the work of the Committee, and takes note of the report of the

Committee,8 submitted in accordance with article 24 of the Convention;

12. Calls upon the United Nations High Commissioner for Human Rights, in

conformity with her mandate established in General Assembly resolution 48/141 of

20 December 1993, to continue to provide, at the request of Governments, advisory

services for the preparation of national reports to the Committee and for the

prevention of torture, as well as technical assistance in the development, production

and distribution of teaching material for this purpose;

13. Urges States parties to take fully into account the conclusions and

recommendations made by the Committee after its consideration of their reports;

14. Urges the inter-sessional open-ended working group of the Commission

on Human Rights on the development of a draft optional protocol to the Convention

against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to

complete as soon as possible a final text for submission to the General Assembly,

through the Economic and Social Council, for consideration and adoption;

15. Takes note with appreciation of the interim report of the Special

Rapporteur of the Commission on Human Rights on the question of torture and other

cruel, inhuman or degrading treatment or punishment,9 describing the overall trends

and developments with regard to his mandate, and encourages the Special

Rapporteur to continue to include in his recommendations proposals on the

prevention and investigation of torture;

16. Invites the Special Rapporteur to continue to examine questions of torture

and other cruel, inhuman or degrading treatment or punishment directed against

women, and conditions conducive to such torture, and to make appropriate

recommendations for the prevention and redress of gender-specific forms of torture,

including rape or any other form of sexual violence, and to exchange views with the

Special Rapporteur on violence against women, its causes and consequences, with a

view to enhancing further their effectiveness and mutual cooperation;

8 Official Records of the General Assembly, Fifty-fifth Session, Supplement No. 44 (A/55/44).

9 A/55/290.

3230

A/RES/55/89

4

17. Also invites the Special Rapporteur to continue to consider questions

relating to the torture of children and conditions conducive to such torture and other

cruel, inhuman or degrading treatment or punishment and to make appropriate

recommendations for the prevention of such torture;

18. Calls upon all Governments to cooperate with and assist the Special

Rapporteur in the performance of his task, in particular by supplying all necessary

information requested by him, to react appropriately and expeditiously to his urgent

appeals and to give serious consideration to his requests to visit their countries, and

urges them to enter into a constructive dialogue with the Special Rapporteur with

respect to the follow-up to his recommendations;

19. Approves the methods of work employed by the Special Rapporteur, in

particular with regard to urgent appeals, reiterates the need for him to be able to

respond effectively to credible and reliable information that comes before him,

invites him to continue to seek the views and comments of all concerned, in

particular Member States, and expresses its appreciation for the discreet and

independent way in which he continues to carry out his work;

20. Requests the Special Rapporteur to continue to consider including in his

report information on the follow-up by Governments to his recommendations, visits

and communications, including progress made and problems encountered;

21. Stresses the need for the continued regular exchange of views between

the Committee, the Special Rapporteur and other relevant United Nations

mechanisms and bodies, as well as for the pursuance of cooperation with relevant

United Nations programmes, notably the United Nations Crime Prevention and

Criminal Justice Programme, with a view to enhancing further their effectiveness

and cooperation on issues relating to torture, inter alia, by improving their

coordination;

22. Expresses its gratitude and appreciation to the Governments,

organizations and individuals that have already contributed to the United Nations

Voluntary Fund for Victims of Torture;

23. Stresses the importance of the work of the Board of Trustees of the Fund,

and appeals to all Governments and organizations to contribute annually to the

Fund, preferably by 1 March before the annual meeting of the Board of Trustees, if

possible with a substantial increase in the level of contributions, so that

consideration may be given to the ever-increasing demand for assistance;

24. Requests the Secretary-General to transmit to all Governments the

appeals of the General Assembly for contributions to the Fund and to continue to

include the Fund on an annual basis among the programmes for which funds are

pledged at the United Nations Pledging Conference for Development Activities;

25. Also requests the Secretary-General to assist the Board of Trustees of the

Fund in its appeal for contributions and in its efforts to make better known the

existence of the Fund and the financial means currently available to it, as well as in

its assessment of the global need for international funding of rehabilitation services

for victims of torture and, in this effort, to make use of all existing possibilities,

including the preparation, production and dissemination of information materials;

26. Further requests the Secretary-General to ensure the provision of

adequate staff and facilities for the bodies and mechanisms involved in combating

3229

A/RES/55/89

5

torture and assisting victims of torture, commensurate with the strong support

expressed by Member States for combating torture and assisting victims of torture;

27. Invites donor countries and recipient countries to consider including in

their bilateral programmes and projects relating to the training of armed forces,

security forces, prison and police personnel, as well as health-care personnel,

matters relating to the protection of human rights and the prevention of torture and

to keep in mind a gender perspective;

28. Calls upon all Governments, the Office of the United Nations High

Commissioner for Human Rights and other United Nations bodies and agencies, as

well as relevant intergovernmental and non-governmental organizations, to

commemorate, on 26 June, the United Nations International Day in Support of

Victims of Torture;

29. Requests the Secretary-General to submit to the Commission on Human

Rights at its fifty-seventh session and to the General Assembly at its fifty-sixth

session a report on the status of the Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment and a report on the operations of

the United Nations Voluntary Fund for the Victims of Torture;

30. Decides to consider at its fifty-sixth session the reports of the Secretary-

General, including the report on the United Nations Voluntary Fund for Victims of

Torture, the report of the Committee against Torture and the interim report of the

Special Rapporteur of the Commission on Human Rights on the question of torture

and other cruel, inhuman or degrading treatment or punishment.

81st plenary meeting

4 December 2000

Annex

Principles on the Effective Investigation and Documentation of Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment

1. The purposes of effective investigation and documentation of torture and other

cruel, inhuman or degrading treatment or punishment (hereinafter “torture or other

ill-treatment”) include the following:

(a) Clarification of the facts and establishment and acknowledgement of

individual and State responsibility for victims and their families;

(b) Identification of measures needed to prevent recurrence;

(c) Facilitation of prosecution and/or, as appropriate, disciplinary sanctions

for those indicated by the investigation as being responsible and demonstration of

the need for full reparation and redress from the State, including fair and adequate

financial compensation and provision of the means for medical care and

rehabilitation.

2. States shall ensure that complaints and reports of torture or ill-treatment are

promptly and effectively investigated. Even in the absence of an express complaint,

an investigation shall be undertaken if there are other indications that torture or ill-

treatment might have occurred. The investigators, who shall be independent of the

suspected perpetrators and the agency they serve, shall be competent and impartial.

They shall have access to, or be empowered to commission investigations by,

3228

A/RES/55/89

6

impartial medical or other experts. The methods used to carry out such

investigations shall meet the highest professional standards and the findings shall be

made public.

3. (a) The investigative authority shall have the power and obligation to obtain

all the information necessary to the inquiry.10

The persons conducting the

investigation shall have at their disposal all the necessary budgetary and technical

resources for effective investigation. They shall also have the authority to oblige all

those acting in an official capacity allegedly involved in torture or ill-treatment to

appear and testify. The same shall apply to any witness. To this end, the

investigative authority shall be entitled to issue summonses to witnesses, including

any officials allegedly involved, and to demand the production of evidence.

(b) Alleged victims of torture or ill-treatment, witnesses, those conducting

the investigation and their families shall be protected from violence, threats of

violence or any other form of intimidation that may arise pursuant to the

investigation. Those potentially implicated in torture or ill-treatment shall be

removed from any position of control or power, whether direct or indirect, over

complainants, witnesses and their families, as well as those conducting the

investigation.

4. Alleged victims of torture or ill-treatment and their legal representatives shall

be informed of, and have access to, any hearing, as well as to all information

relevant to the investigation, and shall be entitled to present other evidence.

5. (a) In cases in which the established investigative procedures are inadequate

because of insufficient expertise or suspected bias, or because of the apparent

existence of a pattern of abuse or for other substantial reasons, States shall ensure

that investigations are undertaken through an independent commission of inquiry or

similar procedure. Members of such a commission shall be chosen for their

recognized impartiality, competence and independence as individuals. In particular,

they shall be independent of any suspected perpetrators and the institutions or

agencies they may serve. The commission shall have the authority to obtain all

information necessary to the inquiry and shall conduct the inquiry as provided for

under these Principles.10

(b) A written report, made within a reasonable time, shall include the scope

of the inquiry, procedures and methods used to evaluate evidence as well as

conclusions and recommendations based on findings of fact and on applicable law.

Upon completion, the report shall be made public. It shall also describe in detail

specific events that were found to have occurred and the evidence upon which such

findings were based and list the names of witnesses who testified, with the exception

of those whose identities have been withheld for their own protection. The State

shall, within a reasonable period of time, reply to the report of the investigation and,

as appropriate, indicate steps to be taken in response.

6. (a) Medical experts involved in the investigation of torture or ill-treatment

shall behave at all times in conformity with the highest ethical standards and, in

particular, shall obtain informed consent before any examination is undertaken. The

examination must conform to established standards of medical practice. In

particular, examinations shall be conducted in private under the control of the

10

Under certain circumstances, professional ethics may require information to be kept confidential. These

requirements should be respected.

3227

A/RES/55/89

7

medical expert and outside the presence of security agents and other government

officials.

(b) The medical expert shall promptly prepare an accurate written report,

which shall include at least the following:

(i) Circumstances of the interview: name of the subject and name and

affiliation of those present at the examination; exact time and date; location,

nature and address of the institution (including, where appropriate, the room)

where the examination is being conducted (e.g., detention centre, clinic or

house); circumstances of the subject at the time of the examination (e.g.,

nature of any restraints on arrival or during the examination, presence of

security forces during the examination, demeanour of those accompanying the

prisoner or threatening statements to the examiner); and any other relevant

factors;

(ii) History: detailed record of the subject’s story as given during the

interview, including alleged methods of torture or ill-treatment, times when

torture or ill-treatment is alleged to have occurred and all complaints of

physical and psychological symptoms;

(iii) Physical and psychological examination: record of all physical and

psychological findings on clinical examination, including appropriate

diagnostic tests and, where possible, colour photographs of all injuries;

(iv) Opinion: interpretation as to the probable relationship of the physical and

psychological findings to possible torture or ill-treatment. A recommendation

for any necessary medical and psychological treatment and/or further

examination shall be given;

(v) Authorship: the report shall clearly identify those carrying out the

examination and shall be signed.

(c) The report shall be confidential and communicated to the subject or his

or her nominated representative. The views of the subject and his or her

representative about the examination process shall be solicited and recorded in the

report. It shall also be provided in writing, where appropriate, to the authority

responsible for investigating the allegation of torture or ill-treatment. It is the

responsibility of the State to ensure that it is delivered securely to these persons. The

report shall not be made available to any other person, except with the consent of

the subject or on the authorization of a court empowered to enforce such a transfer.

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3225

United Nations

Department of Peacekeeping Operations

Ref. DPKO/PD/2006/00060

DPKO Policy

9 November 2006

Functions and Organization of

Formed Police Units in United

Nations Peacekeeping Operations

3224

2

POLICY ON THE FUNCTIONS AND ORGANIZATION OF FORMED POLICE UNITS IN UNITED

NATIONS PEACEKEEPING OPERATIONS

Contents

A. Purpose

B. Scope

C. Rationale

D. Description, functions and organization

E. Command and control

F. Monitoring and compliance

G. Entry into force

A. Purpose

1. This policy defines and describes the functions and organization of Formed Police Units (hereafter “FPU(s)”) deployed in United Nations peacekeeping operations (hereafter “mission(s)”). This document provides the rationale for their deployment and explains the general objectives of and conditions for the operation of such units.

B. Scope

2.1 This policy applies to the Head of Missions and their delegates and the police components of

peacekeeping operations of the Department of Peacekeeping Operations.

2.2 Personnel of the Department of Peacekeeping Operations involved in security, administrative,

military and any other relevant activities for the operations of FPUs should be made aware of and

comply with this policy.

2.3 Matters pertaining to detention, searches and use of force for members of FPUs are not

addressed in this policy. Separate directives are issued by the Department of Peacekeeping

Operations in this regard and must be strictly applied.

C. Rationale

3. Missions have in several instances been mandated and have deployed FPUs in order to provide security assistance to national law enforcement agencies with the aim of supporting the establishment of law and order. In other instances, the deployment of FPUs, acting in an executive capacity, was authorized as part of the police component of missions. In all cases, FPUs play a key role in the protection of United Nations personnel and facilities. This policy describes the functions and organization of FPUs deployed in missions.

D. Description, functions and organization

Description

General

4.1 The deployment and operations of FPUs will always be based on the principles of necessity, proportionality and accountability and all actions of FPUs will be aimed at the protection and preservation of human life, property, liberty and dignity. In particular, FPUs will assist and advise national law enforcement officials in the exercise of their duties by serving the community and by

3223

3

assisting in the protection all persons against illegal acts, consistent with their high degree of professional responsibility.

4.2 FPUs are specialized, well-equipped and fully mobile rapid-reaction police or other law

enforcement agency units of generally one hundred and twenty-five (125) members each,

composed entirely of elements from one contingent. They are deployed in United Nations

missions as cohesive units with unit integrity and are self-sustained with attendant equipment

owned by the contingent and deployed under criteria established under a Memorandum of

Understanding between the United Nations and the Police Contributing Country in accordance

with the Contingent-Owned Equipment Manual 2005, as amended.

4.3 FPUs must always exercise their functions strictly according to the United Nations Security

Council Resolution(s) and other official issuances applicable to the mission to which they are

assigned. They must exercise their functions in strict accordance with United Nations human

rights and criminal justice norms and standards (1).

4.4 In the exercise of their functions, members of FPUs must respect the legislation applicable in

the host country insofar as it is not in conflict with United Nations human rights and criminal

justice norms and standards or United Nations rules, regulations and other issuances.

4.5 Members of FPUs must strictly comply with the directives on detention, searches and use of

force, or equivalent issuances, as approved by the Department of Peacekeeping Operations.

Legal status

4.6 As “Experts on Mission”, members of FPUs are inter alia “…immune from personal arrest or

detention” and are immune from legal process of any kind “in respect of words spoken or written

and acts done by them in the course of the performance of their mission”(2). However, the

Secretary-General has “…the right and the duty to waive the immunity of any expert in any case

where, in his opinion, the immunity would impede the course of justice and it can be waived

without prejudice to the interests of the United Nations” (3). Members of FPUs are subject to the

jurisdiction of the host country or territory with respect to any criminal offences that may be

committed by them in the host country or territory and any disputes or claims of a civil nature not

related to the performance of their official functions.

Functions

4.7 In executive missions, and as mandated by the Security Council resolution authorizing their

presence, members of FPUs may exercise the full array of policing powers as set-forth under the

applicable law of the host country or territory. This includes a response capacity to all civil

disorder challenges in order to contain and prevent security situations from escalating.

1. As set-forth inter alia in the relevant provisions of the following legal instruments: Universal Declaration of Human Rights (Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948); International Covenant on Civil and Political Rights (adopted by the General Assembly of the United Nations on 16 December 1966; treaty in force since 23 March 1976); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted by the General Assembly on 10 December 1984; treaty in force since 26 June 1987); Convention on the Rights of the Child (adopted by the General Assembly on 20 November 1989; treaty in force since 2 September 1990); Standard Minimum Rules for the Treatment of Prisoners (Economic and Social Council resolution 663 (XXIV) of 31 July 1957); Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment (General Assembly resolution 43/173 of 9 December 1988); Code of Conduct for Law Enforcement Officials (General Assembly resolution 34/169 of 17 December 1979; Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, welcomed by General Assembly resolution 45/121 of 18 December 1990). 2. Article VI section 22 of the 1946 Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly on 13 February 1946. 3. Article VI section 23, Idem.

3222

4

4.8 In non-executive missions, members of FPUs are not considered law enforcement officials

and are not authorized to exercise policing powers as set forth under the applicable law of the

host country or territory.

4.9 FPUs perform mainly the three (3) following functions in both executive and non-executive

missions, taking into consideration the various thresholds in relation to public order in conflict and

post-conflict situations as set-forth in annex 1:

Protection of United Nations personnel and facilities

4.9.1 FPUs shall assist in the protection of United Nations personnel and facilities by taking

preventive and reactive measures in order to control threatening crowds and related civil

disturbances. This must be done through consultations with relevant national law

enforcement agencies as well as the military, security and other concerned components of

the Mission.

Provision of security support to national law enforcement agencies

4.9.2 FPUs should assist national law enforcement agencies in the performance of their

functions in strict accordance with the mandate of the mission. As part of such functions,

FPUs may normally conduct joint patrols with national law enforcement agencies on a regular

basis. In this context, they should show their presence in furtherance of the maintenance of

peace and security and promote confidence-building measures with national authorities and

the national population.

Capacity-building

4.9.3 FPUs should serve as a model for national law enforcement agencies by promoting

respect for United Nations human rights and criminal justice norms and standards and in the

performance of key functions, particularly crowd management. They should train and advise

their national counterparts in accordance with the Department of Peacekeeping Operations

issuances in relation to the reform, restructuring and rebuilding of law enforcement agencies.

4.10 All regular tactical support operations should be conducted on the basis of intelligence or

information gathered and with adequate backup support. The Head of the Police Component (4)

or his/her designate can authorize the deployment of FPUs in tactical operations and crowd and

riot control tasks, in strict accordance with the mandate of the mission. All such functions should

be carried out in close collaboration with national law enforcement agencies.

4.11 All functions should be carried out on the basis of reliable intelligence or information. As part of their contacts with national law enforcement agencies and the population, FPU personnel shall collect information of relevance in order to analyze security trends and prepare contingencies, particularly with respect to the protection of United Nations personnel and facilities. Such information shall be shared with the Joint Mission Analysis Cell (JMAC) or equivalent(s) mission-wide information analysis bodies.

Organization

4.12 FPUs are composed of trained and fully equipped law enforcement officers with expertise in

crowd management and other policing tactical operations. Their tasks may vary as set-forth by

the mandate, concept of operations and activities of the Mission. Their composition and

4. Referred to as the Police Commissioner or Senior Police Advisor.

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organization may also vary due to mission specific requirements. However, with the exception of

command and support elements, each FPU will generally be divided into three (3) tactical sub

units of thirty (30) officers organized as follows:

Command element

4.12.1 The Unit is headed by an FPU Commander at middle rank level. Each of three

platoons are headed by a platoon commander.

Support staff

4.12.2 Each FPU is a self-supporting component and will have its own support staff to

provide required catering, maintenance, engineering, medical and administrative support

services to the unit in accordance with the Contingent-Owned Equipment Manual 2005, as

amended.

Operation enabling staff

4.12.3 To support its operational analysis capacity, the FPU will have an internal tactical

intelligence or information gathering and analysis capability. It will also comprise an operation

coordination officer or liaison officer to interact with the other departments of the police

component and the mission as a whole, and also an IT communication officer.

Tactical Unit

4.12.4 The Tactical Unit is the operational component of the unit. It is composed of thirty (30)

officers further subdivided into three (3) ten-member sections. Team members are trained in

all aspects of crowd control and riot response tasks. The tactical team may also include

within its number an explosive devices expert, canine teams, snipers and special weapons

and tactical specialists for advanced tactical purposes. The composition of these specialized

components of the tactical team will vary in accordance with the mandate and security

requirements of the mission. As a general practice, the FPU composition will be tailored

towards crowd control and riot prevention capabilities.

E. Command and control

5.1 All United Nations police officers must comply with lawful orders from their designated

supervisors.

5.2 The Head of the Police Component of the mission designates an FPU Coordinator who will

supervise and coordinate the activities of FPU Commanders. He/she acts as an advisor to the

Head of the Police Component on the tasks and operations of FPUs. He/she reports to the Head

of the Police Component through the designated Deputy Head of the Police Component or

another designate. He/she shall also coordinate operations, act as the main focal point for all

administrative matters, assist in the verification of equipment and provide a weekly report to the

Police Division, Department of Peacekeeping Operations, through the Head of the Police

Component, on the activities of FPUs in the Mission area. He/she must coordinate all his/her

activities with the regional or district commanders or equivalents. He/she shall follow-up on any

disciplinary investigations related to personnel of FPUs.

5.3 Command and control arrangements for each FPU are defined by tactical requirements. The

command relationship is defined as follows:

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Full command

5.3.1 The FPU is a tactical unit of the Police component of the Mission and hence the

Head of the Police Component has full command over all components.

Operational command

5.3.2 The operational command of the FPU will be under the Head of the Police

Component or his/her designate. The order for the operational engagement will only

come from the Head of the Police Component or his/her designate (FPU Coordinator,

Chief of Operations, Regional Commander or equivalent).

Operational control

5.3.4 The FPU Commander will be responsible for the operational control of the Unit. In

case of a combined operation involving different FPUs, the Head of the Police

Component will designate an FPU commander to take operational control of the

operation. The designated commander will retain the operational control of all the units

involved until the completion of the said operation.

Tactical control

5.3.5 Respective Sub-Unit Commanders are entrusted with the task of all tactical control

of the operations including crowd, riot and other specific activities on the ground.

5.4 In cases of joint operations to address situations of public disorder with personnel of FPUs and Military Components, with or without other security personnel of the mission, the following arrangements shall be in place:

Situations of public disorder of a non-military nature

5.4.1 This generally refers to situations of public disorder where there is no sustained use

of firearms or military weaponry. In such circumstances, the FPUs should have primacy

in addressing such situations in support of or in cooperation with national law

enforcement agencies, as applicable. The Head of the Police Component or the FPU

Commander may request personnel of the Military Component and/or other security

personnel of the mission to perform specific missions or tasks. In these situations, the

most senior United Nations Police Officer or FPU Commander at the location of the

incident will exercise tactical control and have overall command. The assignment of

military personnel must be coordinated with the Force Commander or Sector or Battalion

Commander, as applicable.

Situations of public disorder of a military nature

5.4.2 This generally refers to situations of public disorder were there is sustained use of

firearms or military weaponry. In such circumstances units of the Military Component

should have primacy in addressing such situations in support of or in cooperation with

relevant national agencies, as applicable. They may request FPU personnel and/or other

security personnel of the mission to perform specific missions or tasks. In these

situations, the most senior Military Commander will have overall command. The

assignment of FPU personnel must be coordinated with the Head of the Police

Component or the nearest Regional or District Commander or equivalent, as applicable.

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5.5 The above-mentioned arrangements should not result in any operational delays to address such situations of public disorder. In this regard, standard operating procedures should be adopted by the mission and regular training, rehearsals and exercises, including simulations, should take place on a regular basis. Lessons-learned in addressing such situations of public disorder as well as through exercises should be shared with the Police Division and the Military Division of the Department of Peacekeeping Operations for advice and evaluation. The above-mentioned arrangements must be applied in letter and spirit.

5.6 Under no circumstances whatsoever shall any FPU personnel be placed under the authority,

command and control of non-UN representatives, including members of national law enforcement

agencies.

5.7 FPUs shall not receive or transmit any operational directives or tactical commands from their

National Authorities or their National Military command operating in the mission area or

elsewhere.

F. MONITORING AND COMPLIANCE

6. All missions with FPUs shall comply with this policy. The Police Advisor to the Department of

Peacekeeping Operations, the Heads of Mission and their delegates and the Heads of Police

Components shall monitor compliance with this document.

G. ENTRY INTO FORCE

7. This Policy shall come into force on 9 November 2006. It can only be abrogated in writing by

the Under-Secretary-General for Peacekeeping Operations.

(signed)

Jean-Marie Guéhenno

Under-Secretary-General

Department of Peacekeeping Operations

9 November 2006

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3217

OFFICE OF THE UNITED NATIONS

HIGH COMMISSIONER FOR HUMAN RIGHTS

Professional Training Series No. 5/Add.3

Human RightsStandards and Practice

for the Police

Expanded Pocket Book

on Human Rights for the Police

UNITED NATIONS

New York and Geneva, 2004

3216

Material contained in this publication may be freelyquoted or reprinted, provided credit is given and a copyof the publication containing the reprinted material issent to the Office of the United Nations HighCommissioner for Human Rights, Palais des Nations, 8-14 avenue de la Paix, CH-1211 Geneva 10,Switzerland.

HR/P/PT/5/Add.3

UNITED NATIONS PUBLICATION

Sales No. E.03.XIV.7

ISBN 92-1-154153-0

ISSN 1020-1688

ii

3215

NOTE

This guide is designed to be a readily accessible andportable reference for police officers. It is organizedinto major human rights topics of concern to the police,such as investigations, arrest, detention and the use offorce. Under each topic, there is a section summarizingthe relevant international human rights standards, fol-lowed by a “practice” section containing recommenda-tions for applying those standards.

The sources for the human rights standards and practiceare listed at the end of the guide. They include the prin-cipal United Nations human rights treaties and themany specialized declarations and bodies of principleson law enforcement which have been adopted by theUnited Nations.

*

* *

The designations employed and the presentation of thematerial in this publication do not imply the expressionof any opinion whatsoever on the part of the Secretariatof the United Nations concerning the legal status of anycountry, territory, city or area, or of its authorities, orconcerning the delimitation of its frontiers or bound-aries.

*

* *

iii

3214

Material contained in this publication may be freelyquoted or reprinted, provided credit is given and a copyof the publication containing the reprinted material issent to the Office of the United Nations HighCommissioner for Human Rights, Palais des Nations, 8-14 avenue de la Paix, CH-1211 Geneva 10,Switzerland.

iv

3213

Contents

Page

Application of General Human Rights Principles .. 1

Ethical and Legal Conduct ..................................... 2

Policing in Democracies ......................................... 4

Non-Discrimination in Law Enforcement .............. 7

Police Investigations ............................................... 10

Arrest ...................................................................... 13

Detention ................................................................ 17

Use of Force and Firearms ..................................... 23

Civil Disorder, States of Emergency and Armed

Conflict ............................................................... 28

Protection of Juveniles ........................................... 38

The Human Rights of Women ................................ 42

Refugees and Non-Nationals .................................. 47

The Human Rights of Victims ................................ 52

Police Command and Management ........................ 55

Community Policing ............................................... 58

Police Violations of Human Rights ........................ 59

Sources for Human Rights Standards and Practice .... 63

v

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Application of General Human RightsPrinciples

Human Rights Standards

International human rights law is binding on all Statesand their agents, including law enforcement officials

Human Rights is a legitimate subject for internationallaw and international scrutiny

Law enforcement officials are obliged to know, and toapply, international standards for human rights

Human Rights Practice

· Adopt a comprehensive human rights policy for yourorganization

· Incorporate human rights standards into standingorders for the police

· Provide human rights training to all police, at recruit-ment and periodically

· Cooperate with national and international humanrights organizations

1

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Ethical and Legal Conduct

Human Rights Standards

Human rights derive from the inherent dignity of thehuman person

Law enforcement officials shall at all times respect andobey the law

Law enforcement officials shall at all times fulfil theduty imposed on them by law, by serving the communi-ty and by protecting all persons against illegal acts, con-sistent with the high degree of responsibility requiredby their profession

Law enforcement officials shall not commit any act ofcorruption. They shall rigorously oppose and combat allsuch acts

Law enforcement officials shall respect and protecthuman dignity and maintain and uphold the humanrights of all persons

Law enforcement officials shall report violations ofthose laws, codes and sets of principles which protectand promote human rights

All police action shall respect the principles of legality,necessity, non-discrimination, proportionality andhumanity

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