OLICE IN TRANSITION
TRANSIT POLICE IN Edited by Andr‡s K‡d‡r
Police in Transition
Police in Transition Essays on the Police Forces in Transition Countries
Edited by András Kádár
Hungarian Helsinki Committee
Central European University Press
Published by Central European University Press Nádor utca 15 H-1051 Budapest Hungary
400 West 59th Street New York, NY 10019 USA
An imprint of the Central European University Share Company © 2001 by Hungarian Helsinki Committee
Distributed in the United Kingdom and Western Europe by Plymbridge Distributors Ltd., Estover Road, Plymouth PL6 7PZ, United Kingdom
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ISBN 963 9241 15 6 Paperback
Library of Congress Cataloging-in-Publication Data A CIP catalog record for this book is available upon request
Printed in Hungary by Akaprint
Contents Acknowledgements Introduction Ferenc Kõszeg Police and Transition The Questions of Transition István Szikinger The Impact of Transition: A Comparison of PostCommunist Societies with Earlier ‘Societies in Transition’ Robert I. Mawby Comparative Studies and Country Analyses Police Organization and Accountability: A Comparative Study Renate Weber The Police in the Constitutional Framework: The Limits of Policing Andrzej Rzeplinski Policing in Transition Countries Compared with Standards in the European Union: Hungary—Where Dreams Are Not Fulfilled Miklós Benke Police Governance in Romania Manuela Stefanescu The Challenges of Transition as Seen by the Police The Romanian Police and Challenges of Transition Pavel Abraham The Political Changeover and the Police Géza Finszter Models of Policing Policing a Diversity of Cultures: Community Policing in Transforming Societies Alan Wright Target Areas of Police Reform Anita Hazenberg Oversight and Accountability The Role of NGOs in Civilian Oversight of the Police
Contents
Mark A. Gissiner Monitoring Police Detention: Experiences with Civilian Oversight of Law Enforcement Agencies Ferenc Kõszeg The Police and Non-Governmental Organizations in Poland Andrzej Kremplewski Civil Liability and Police Accountability in the United States Jerome H. Skolnick Police Brutality Police Brutality and Police Torture Budimir Baboviæ Addressing Police Violence in Bulgaria: The Human Relations Perspective Svetlozar Vassilev Appendices The Budapest Recommendations List of Contributors
Acknowledgments The Hungarian Helsinki Committee would like to express its gratitude for their participation in the Police in Transition project—providing the framework for the compilation of this volume—to the Helsinki Commitees of Bulgaria, Croatia, the Czech Republic and Romania, the Polish Helsinki Foundation for Human Rights, the Slovakian Charta 77 Foundation, and the individual experts on legal and police issues who contributed to the work of the project: Budmir Babović, Thomas Feltes and Alan Wright. We also owe our thanks to the Ford Foundation, the COLPI, and the Open Society Institute for making his work possible through their financial support. Special thanks go to István Szikinger, the professional manager of the project, Miklós Benke, editor of the CDROM, Szilvia Madarász, who labored long over the complex administration of this cooperative work, the program manager Márta Pardavi, and the volume editor, András Kádár, without whose constant attention and enthusiasm this comprehensive volume could have never been completed.
Introduction Ferenc Kőszeg
In communist countries, the primary task of the police forces, in common with the other state bodies and institutions, was to sustain the political system and safeguard its functioning. The police operated as a subsidiary force of the state security agency: in some cases the two agencies were under the control of separate ministries, as in the Soviet Union and the GDR, and in others of a single Interior Ministry, as was the case in Poland and Hungary. Regular police work, such as the detection or prevention of crime, was secondary to the task of maintaining the security of the state. During the period of transition, in response to criticism from the new political opposition, the ruling party in Hungary developed the concept of a non-political police. The task of the police should not be to represent the interests of the political regime or government, it transpired, but to ensure public safety. The police were no longer to take their orders from the ruling party, but instead their responsibilities and powers, and the means of their supervision, were to be defined by law. As the political changes gathered pace, the objectives of the new democratic parties came into alignment with the internal reform objectives of the police themselves. The police wanted to be rid of party control: high-ranking police officers were not happy with the priority given to state security and the arrogant sense of superiority it epitomized. Political expediency was replaced by the principles of professionalism, organizational independence, and decentralization of the police, all of which were in direct opposition to party control. At the same time—that is, before and during the period of change—both state and police leaders sought to expand police authority. From 1985 on, for instance, while restrictions on freedom of expression and foreign travel were gradually being lifted in Hungary, time limits for holding suspects in custody and police
Introduction
powers to carry out surveillance and investigation without a warrant were all increased; vagrancy became a punishable offense carrying the penalty of imprisonment, and police officers were authorized to interrogate civilians, and perform ID checks and searches at will. Once the preparations for open elections were under way, it became evident that the coming democratic and constitutional state would not only abolish the state security network that oversaw society, but also curtail the excessive powers granted to the police. This expectation was further nourished by the abolition of a number of measures—such as police surveillance and pre-trial detention without a court order—which clearly contradicted the basic principles of a constitutional state. In Hungary, highranking police officers were themselves critical of the force’s former confusion of roles, implying that the police had used the majority of its resources to consolidate control over citizens in the guise of crime prevention, instead of pursuing criminals. The fact that the Minister of the Interior lost his ‘remote control’ over the police forces also seemed encouraging: from now on, government interests could be asserted only by legal means. However, as the remarkable Hungarian sociologist and openminded politician Ottilia Solt—who died in 1997—wrote in the autumn of 1989, a keen-eyed observer could see that “the police, now that they are liberated from direct political control, are already catching up with those lobbies vying for the national budget…and, as they recover from the confusion that followed the political changes, they are reaching out to a frightened public as a potential ally in their struggle to secure their interests”. There is no doubt that following the political changeover the number of crimes increased significantly in all former Socialist countries. Although the crime rate per 100,000 inhabitants was in effect merely ‘catching up’ with West European averages (and remains lower even today), people perceived a rapid and abrupt growth. A major contribution to this climate of fear was made by the ending of the policy of artificially maintained general employment—a characteristic feature of Socialism—as a result of which masses of people lost their jobs. The secure, albeit modest lifestyle to which the average citizen had been accustomed became fraught with uncertainty, while the state of the national economy was on more prominent display than ever before. With incredible speed social life became far more open and free: total control over society was abolished, constraints on traveling abroad were significantly eased, and formerly imperturbable state bodies disinte-
2
Introduction
grated. At the same time, armed conflict became the norm in certain parts of the former Soviet Union and the former Yugoslavia. Despite all this, the increase in reported crime was considered to be a result of police instability and the ‘excessive liberalism’ of state institutions. Crime and, especially, the terror induced by crime not only provided grounds for continuous increases in police numbers and budgets (although they remained ineffective from the point of view of fighting crime), but also allowed the police to maintain an unaltered organizational structure and special legal status as police personnel. The sense of emergency allowed police to counteract the introduction of regulations and practices aimed at rendering police operations transparent and police staff accountable for their actions. The democratic forces in Hungary were all agreed, before the 1990 elections, on the need to decentralize the police: those police forces responsible for local public safety should work under local-government supervision, while only the police responsible for criminal investigation should remain under central control. The debate over this issue has lost its foundations: the police do not have to be protected from the government by means of wide-ranging decentralization since the government is now the freely elected representative of the people. However, the legal regulations already introduced gave (and still give) extensive independence from the government to the leadership of the centralized police, while parliamentary control over the police remains only formal. Only by taking significant political risks can governments hold high-ranking police officers accountable for their actions. The Bulgarian, Romanian, and Hungarian police forces have retained their military characteristics, and police officers have kept their legal status as soldiers. The 1993 Hungarian Police Act institutionalized an ad hoc decree of 1984 which gave police officers the power to search the clothes and vehicles of citizens and to interrogate them during regular ID checks. The Polish Police Act, created as early as 1990, broke with the militarist traditions of the Socialist police, but later restored some of these regulations in order to reinforce public safety. A 1990 law, for instance, limited the time that suspects could be held in police detention, but this limitation was later revoked, on the pretext of difficulties concerning the transport of detainees, although the principle that suspects whose cases are being investigated by the police shall not be detained is regarded worldwide as an important legal guarantee of fair criminal procedure. The Hungarian Helsinki Committee has been providing legal advice and representation to victims of rights violations by the 3
Introduction
authorities for several years, free of charge. During the course of this work, it has often been the experience of our colleagues that the police themselves, whose duty it is to protect public safety, offend against citizens’ basic rights, occasionally even causing physical harm. Outsiders often believe that such instances of police brutality represent a threat only to criminals, and tend to accept these violations of human rights as a price that must be paid for the sake of the ‘honest majority’. In reality, dozens of cases demonstrate that any innocent person can become a victim of police violence. However, the fact that police officers remain unpunished is even more alarming than their brutality. One-third of the cases reported against police officials are judged to be unfounded and are rejected by the authorities whose duty it is to investigate them. A further 80 percent of investigations are unsuccessful. The investigating authorities explain the small number of successful cases by the special difficulties they encounter in trying to prove crimes committed by the police. In reality, their lack of success is also due to the fact that even the investigators see such violations of citizens’ rights as understandable manifestations of zeal on the part of police officers—a pardonable error. The experiences of Polish, Hungarian, and Romanian human rights organizations in this matter are comparable: it is very rare that a police officer is brought to book for acting illegally. It is no less serious that the police have now developed a shield of solidarity that protects the guilty, and the consequent irresponsibility that many police officers display has resulted in a tendency to regard even police corruption as a pardonable sin. In light of these facts and trends, the worry is that the police of the former dictatorships, free of party control, are now building their own dictatorships. In communist countries, taking a stand on human rights and freedom was part of the fight against totalitarian dictatorship. The struggle against a common oppressor created bonds between the democratic forces of the Central and East European region— the Polish, Russian, Czech, Slovakian, and Hungarian opposition movements. One framework for this joint struggle for freedom was provided by the Helsinki movement, begun by the Russian opposition as a means of creating a platform to render their own government answerable for non-compliance with the human rights principles to which the Soviet government had formally committed itself in Helsinki in 1975. Following the political changes, it soon became clear that the creation of the legal bases and institutions of a constitutional 4
Introduction
state would not in itself ensure the prevalence of human rights and freedom, nor guarantee protection from the violation of these rights. As a consequence, the organizations of the Helsinki movement did not become redundant: the Helsinki Committees of former communist countries reorganized in the early 1990s as effective human rights organizations, and revived their former connections. The common experience described above—that victims’ rights are difficult to protect, that efforts to prosecute the perpetrators rarely succeed, and that the basic conditions for human rights violations remain unchanged—leads to the recognition that protecting human rights from state violence cannot begin by taking a stance against crimes that have already been committed. The possibility of such rights violations is embedded in the law, which gives rough and general indications to law enforcement agencies, especially the police, concerning the extent of human rights and limits on the use of force; it is embedded in the internal structure of these organizations, in a police force that functions like a military machine, by following orders unquestioningly; it is embedded in inherited practices, in a philosophy openly expressed—or sometimes sworn in secret. The only hope of success in this fight against human rights violations, and for the protection of human rights, is to take action to improve laws, to unmask illegal practices, and simultaneously to convince society that a military-style police force built after the traditions of the one-party system is both expensive and no more effective than one which sees itself, not as a separate order of knighthood, but rather as a professional body within society, a branch of the civilian public administration. The former communist countries of Central and Eastern Europe are all, to a greater or lesser extent, focused on the process of European integration, and all aim to become members of the European Union sooner or later. All the countries of the region, and especially those which are now preparing to join the EU—the Czech Republic, Hungary, and Poland—are all making an effort to harmonize their laws and institutions with those of the EU member states. The governments and security forces of these countries boast about the close cooperation they maintain with, and their achievement of the high standards of, European police forces in the areas of regional security matters, the fight against organized crime, drug trafficking, and illegal migration. They also try to give the impression that the laws on police organization, authority, and legal status comply with European norms. 5
Introduction
European integration is nonetheless inconceivable without respect for basic human rights. Harmonization of human rights norms is just as much a condition of integration as harmonization of economic and commercial practices. However, as regards common and civil law, the EU often respects the differing customs of member countries, and does not require the unification of traditional public administration systems. The differences in the organizational structure and supervisory frameworks of police in the various countries do not in themselves represent obstacles to European integration—for example, there are differences between the German and French police. But the preservation of an organizational framework inherited from a non-democratic past and founded on an anachronistic mindset can obstruct the democratic functioning of these organs, their capacity to respect the human rights of citizens, and ultimately their ability to integrate into modern Europe. What is the actual state of the police forces of Central and Eastern Europe? To what extent have they left their undemocratic past behind, and how much of it have they preserved? Are the Polish, Czech, Hungarian, and Romanian police closed, military-style organizations, or are they simply state authorities with special powers which enable them to function effectively? What does civil control of the police mean? To what extent does the government or the elected local authority control the police— how independent are the police, even from the government? Is it the case that German or British police officers have the same power over civilians as Hungarian or Slovakian policemen? Is it true that the number of police officers is proportionally lower in Hungary than in Germany? These questions are of no less importance to European integration than the issues of the capacity of highways or the free flow of capital and labor. In the summer of 1996, delegates from some fifty human rights’ organizations from Central and Eastern Europe participated in a seminar in Oxford organized by the Ford Foundation and the Constitutional and Legal Policy Institute (COLPI)—a Budapest based organization of the Soros Foundation engaged in legal research—entitled ‘Public Interest Law’. (Proponents of this relatively new field are searching for legal means to represent the interests of communities, social groups, and, ultimately, society as a whole. In this context the protection of the environment and human rights are formulated in terms of the general public interest.) A great number of reports have been filed detailing rights violations by police and the restrictions confronting those who attempt to provide legal defense in such cases. It was decided at 6
Introduction
this seminar that, rather than lodging a collective complaint, we should compare our experiences and study the legal and psychological circumstances in which violations of human rights occur and remain unpunished. To begin with, we must compare the fundamental laws pertaining to the police passed in countries of the region in the years following 1990. Before the political changes in each of these countries the organs of violence functioned according to a single, coherent philosophy. What differences have evolved and what similarities have remained in these countries with respect to police-related legislation and police practice since the collapse of the one-party system? In order to be able to answer these questions we also have to study further, as a ‘control group’, the police laws of EU member countries which have developed within different traditions and customs. We can then ask: is it the case that the situation everywhere else is the same as here? Such a comparison could begin with written legislation, for if we attempt to compare legal practices directly it would yield a vast spectrum of individual cases rendering it difficult to draw general conclusions. In any case, the notion that police violations of human rights are simply the result of arbitrary behavior on the part of the police is false. The great majority of human rights violations are the result of legislation that runs contrary to the constitution or to international human rights agreements (such as the provision which allows detention of a suspect without justifiable suspicion for up to twelve hours, during which time the victim’s right to see a lawyer can be refused), or laws that are formulated in such a way as to make possible deliberate misinterpretation or unlawful enforcement. The analysis and comparison of laws should naturally be complemented with data on police structures, supervision, responsibilities, personnel, and budget. This should be further supplemented with information concerning disciplinary actions and criminal cases against policemen, and the whole should include general conclusions drawn from cases dealt with by human rights organizations. As a result of discussions in Oxford, the Helsinki Foundation for Human Rights in Poland, the Czech, Romanian, and Bulgarian Helsinki Committees, the Slovakian human rights organization Charta 77 Foundation, and the International Helsinki Federation for Human Rights, responsible for coordinating the Helsinki Committees, decided to cooperate in carrying out this extensive comparative study. The logistical aspects of cooperation were ma-
7
Introduction
naged by the concept’s ‘host organization’, the Hungarian Helsinki Committee. The project was made possible through the financial support of the Ford Foundation and the Open Society Institute, and work commenced in February 1997. A common set of principles was necessary for comparing the laws and practices of the different countries. To this end an extensive questionnaire was compiled, at the request of the Hungarian Helsinki Committee, by István Szikinger, a constitutional lawyer and expert on police-related issues, who worked as staff attorney of the COLPI at that time. Delegates from the participating organizations met in Prague in May 1997 to finalize the questionnaire and agree on the common set of principles, later to be translated into English. Two Western researchers participated in the work: Professor Alan Wright, senior researcher at the Institute for Police and Criminological Studies at the University of Portsmouth, and Professor Thomas Feltes, Rector of the Willingen-Schwenningen Police Academy (Baden-Würtenberg). Unfortunately, there was no response from the French expert who was invited to join us. Although the original idea envisaged conducting the comparative study only in the former Warsaw Pact countries, we were joined later by the Croatian Helsinki Committee, and a police-researcher from Belgrade, Budimir Baboviæ. Questionnaire responses were ready by the end of 1997, their length averaging around fifty pages. Miklós Benke helped to integrate and supplement these materials. The participants debated any remaining issues at a seminar in the Police Training Center at Legionowo, near Warsaw, in March 1998. The material of the debate was made available in its entirety to interested parties— legislative bodies, government organs, police bodies, researchers, libraries, and civil organizations in CD-ROM format. The questionnaire responses can be regarded as a manual on Central and East European policing. The built-in search function of the CD-ROM provides rapid access to a wide range of significant information, whether it be the command structure of the English and Welsh police force, the regulation of ID checks in Poland, Germany, or Slovakia, or the legal status of Hungarian police officers. The accuracy and objectivity of this information is endorsed by legal texts reproduced as appendices. The ‘Police in Transition’ survey made it clear that significant differences now exist between the powers and practices of the police forces under consideration. However, efforts by the police to extend their scope and powers are common everywhere. The governments of the region, whether conservative, liberal, or left-
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Introduction
wing, rarely inquire about the human rights performance of the police forces for which they are responsible. The political rhetoric, in both press releases and politicians’ statements, instead reaffirms the need for a firm police force, prepared to do everything in the interests of public security. Meanwhile, governments and legislative bodies react to the failures of police forces by expanding their powers, overlooking human rights violations, and increasing budgetary support. Human rights activists consider it extremely important that the Council of Europe and other EU institutions monitor the practices and legislation of the security organs of countries that intend to join the European Union. They deplore the practice of pardoning certain powerful countries, primarily Russia, for their frequent human rights violations. Meanwhile, the maintenance of capital punishment, for example, is not penalized by the suspension of Council of Europe membership, an indulgence which encourages political forces throughout the region who wish to boost their popularity with promises to reintroduce the death penalty. Human rights activists are aware that the recommendations of the Council of Europe are merely recommendations, but they also believe that when a country continues to adopt laws that are contrary to these recommendations, the responsible organs of the Council of Europe and the European Union should acknowledge this and caution the government in question that its legislation is not bringing it closer to European integration. Human rights activists do not, of course, expect that European organizations will ‘fix it’ for them that the practices and laws of their countries will become more ‘European’. The laws of a country cannot simply be ‘translated’ and applied unaltered in another country. Such initiatives have, throughout history, led to resistance, and have even compromised other laws that might have been more up-to-date, better, or more democratic than the existing national laws. The comparative study also reveals that West European laws, although they provide more guarantees than their Eastern equivalents, do not categorically exclude unjustifiable restrictions on the scope of human rights. The rhetoric in support of a ‘state of security’ is also effective in Western Europe. It is probably not the rise of crime alone, but also the end of the Cold War and the disappearance of a bipolar world which have recast public security and crime prosecution as a ‘war’ against crime and led to the perception of crime, both East and West, as the primary challenge of the twenty-first century. With the disappearance of the
9
Introduction
political--ideological enemy, both the freshly underemployed secret services and the police, who have long yearned for access to secret service technologies, are in need of a new enemy-figure— one that is no less frightening than Bolshevism and which can justify the restriction of their rights to the public. The conception of police work as a form of warfare in peacetime implies serious dangers. A soldier in wartime is authorized to use almost every available means to destroy an enemy still capable of resistance. A police officer rarely has such license, other than in the protection of his own or another person’s life. Procedures are otherwise regulated by detailed laws—laws governing criminal procedure and public administration, for example—from which they cannot stray, even in the name of a supposedly increased efficiency. In modern wars it is the civilians who suffer most, both in the skirmishes whose protagonists do not distinguish between civilians and the military, and as a result of enemy occupation by a group who will gladly rob them of their freedom. Crime-fighting organizations ask for ever increasing powers of intrusion into the privacy of citizens, even without justifiable suspicion, to tap phones, to access bank accounts, to interrogate journalists, to monitor passers-by and vehicles with hidden high-tech devices, to stop them on a daily basis for ID checks or even search them, all in the name of crime prevention and prosecution. Ultimately, it is no different from war: every inhabitant of ‘enemy territory’ counts as an enemy. Militants in Eastern Europe seeking the expansion of police authority will gladly reel off statistics about the restrictions on human rights imposed in the West. In doing so, however, they forget three things. First, Western Europe has many more guarantees of human rights than East European countries: limitations there take away a little from a lot, while in the former communist countries what was only a little to begin with is getting even smaller. Germany and Austria have imposed strict regulations on the influx of asylum seekers, but even today the number of persons granted asylum annually is far greater than in any East European country. Secondly, Western trends are diverse. France has also taken action to stem immigration, yet despite strong resistance by the conservative opposition, the law on citizenship has been greatly liberalized. Finally, Westerners have extensive debates on the necessity of human rights limitations and constitutionality, which can eventually influence legislation. German conservative politicians have participated in mass demonstrations organized in opposition to aggressive manifestations of xenophobia. Highly respected liberal thinkers have opposed the restric10
Introduction
tions on asylum granting, and a law allowing the bugging of private homes sparked such a fundamental debate that the Bundestag (the Federal Parliament) of Germany adopted it only after several years of heavy discussion and with severe limitations—protecting, for example, the privacy of lawyers, priests, and journalists. In Eastern Europe, where liberal intellectuals have always reacted sensitively to attempts to curb cultural freedom in the name of national culture, the restrictions on human rights imposed by the police are given very little publicity and even open-minded people sometimes echo the rhetoric of ‘the war against crime’. Of course, police-driven restrictions on rights do not affect the middle classes as much as they do the lower strata of society, members of ethnic minority groups, and migrants. The aim and hope of those who participated in the international comparative project ‘Police in Transition’ is that their work will help to overcome indifference, end apathy, and begin a professional and political debate, in our young, nine- or ten-year-old constitutional states, about the dilemma (or rather pseudodilemma) of ‘order versus freedom’. The two-year work of the ‘Police in Transition’ project was closed by a conference. Besides the project participants, several European and American policing experts took part in the event, held in Budapest in February 1999 (for their names, see the appendix). Several leaders of the Hungarian Ministry of the Interior and the Hungarian police force also accepted the invitation of the Hungarian Helsinki Committee. The lectures elaborated on questions such as the concept of transition, the problems of the professional independence and governmental direction of the police, the constitutional limits of policing, human rights violations committed by the police, and possible ways of preventing such violations. The researchers from traditional democracies and from transition countries took turns to talk about the similarities and differences between the approaches taken with respect to these questions in countries with different backgrounds. One of the conference sessions focused on the relationship between the police-related norms of the European Union and the legislative acts defining policing in the transition countries. The most exciting part of the conference was the debate concerning the project’s closing document, the so-called ‘Budapest Recommendations’. Taking into consideration the data and conclusions of the research into policing systems of a number of Central and East European states sharing a common totalitarian
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Introduction
past, the Recommendations summarize the basic rules which—in the opinion of the conference participants—must be taken into consideration and gradually realized in order to secure the fair and modern operation of the police in a democratic state. The conference participants received the draft recommendations—developed by the Hungarian Helsinki Committee with the help of experts taking part in the project—at the beginning of the event, so they had a chance to suggest amendments to the text before the start of discussions. On the closing day of the conference a thought-provoking discussion developed around the text and the proposed amendments: some of the points were modified and new ones were included. At the end, the participants adopted all eighteen points of the Budapest Recommendations unanimously. The text of the Recommendations can be found in the appendix of this volume. The present volume of essays is the outcome of two years’ work. A revised and updated (as of 1 September 1999) version of the CD-ROM is available, which contains the country reports based on the unified questionnaire and the police-related legal texts of Bulgaria, Croatia, the Czech Republic, Hungary, Poland, Romania, Slovakia, and Yugoslavia, as well as the text of the debate which led to the finalization of the Budapest Recommendations and the model police law adopted in Germany for the Länder and the Federal Republic. The initiators of the ‘Police in Transition’ project hope that it will provide a comprehensive picture of the police forces under transformation (or the police forces resisting transformation) in the countries of transition and the problems of policing—also experienced in ‘old’ democracies—which arise from the conflict between law and order.
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Police and transition
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The Questions of Transition István Szikinger
The meaning of ‘transition’ in the context of the ‘Police in Transition’ survey would appear to be quite simple. Transition is, of course, a passage from one form of policing to another. If you have a clear knowledge of the starting position, it should not be difficult to evaluate what progress has been made. The first question-mark emerges with this initial problem, however. Apart from a number of slogans, there is no agreement on what the standards of a democratic police system are. It is obvious that any definition must presuppose a democratic society as a proper working environment. In other words, democratic policing is inseparable from a democratic society. The real question, however, is whether the organization and functioning of law enforcement itself should incorporate basic democratic values. Many take the view that a ‘democratic police force’ is a contradiction in terms because of the authoritarian and paramilitary character of institutions tasked with the maintenance of public security. Sociologist and researcher Berkley Westley is one of the skeptics. On this approach, limiting police powers and making law enforcement agencies accountable are the key ways in which the police can be made at least tolerable in a democratic society. Another perspective sees the police as an integral part of democracy and embodying its features. Charles Reith, a conservative English theoretician, is one representative of this approach. Others—for example, Jerome H. Skolnick—say that the police are capable of adopting such values. Recently, the idea of community policing has brought back the concept of the police as an organic, sometimes even an organizing part of democratic society. This is the standpoint of Troyanowicz and others. Some authors have tried to synthesize the rather contradictory expectations of law enforcement. According to Trevor Jones, Tim Newburn, and David Smith, clear distinctions should be made:
The questions of transition
between the police as providers of a service—for example, uniform patrol, security advice, helping victims of crime— [and] the adversarial relationship with offenders or suspects. Where the police are providers of services principles of distributive justice apply which probably means in this case that services should be allocated fairly in relation to needs. Where the police are enforcing the law against offenders or suspects, equity dictates that the level of enforcement should be proportionate to the number and severity of the offense.
However, the latter can result in over-policing particular population groups, raising further concerns regarding democracy and equality. In short, present knowledge is far from clear concerning the criteria governing the maintenance of democratic order. There are centralized and decentralized, integrated and pluralistic, paramilitary and civilian police structures. Police numbers also vary in the democratic world. Inevitably, there is uncertainty concerning what we should hope for at the end of the period of transition. In addition to the theoretical discussions, some recent trends in policing make the issue even more difficult. Frequent scandals revealing grave violations of constitutional values by security organs, even in the most developed democracies, such as the killing of suspected terrorists by British soldiers in Gibraltar, or the officially supported assassination of Basque separatists in Spain, point to serious problems of management and discipline. Little attention has been paid to the regulation of police activities in the advanced countries of the West. Comprehensive legislation concerning the organization and functions of the police are relatively new in many European states. For example, in Austria, Belgium, and even the UK, with the Police and Criminal Evidence Act, progress was made in this connection only as recently as the 1980s, or even the 1990s. And in the USA, for specific reasons, comprehensive legal regulation of police structure and activities is almost totally absent. Furthermore, several legislative steps taken by Western countries would not serve as a particularly good pattern for the emerging democracies in Central and Eastern Europe. Deviations from traditional constitutional values— for example, concluding the long debate on bugging in Germany by introducing the powers requested by the police—suggest that the end of fighting crime may justify any means. On the other hand, a researcher conducting a careful analysis cannot accept the familiar generalizations about the characteristics of the Socialist police, namely, that the police forces of these dictatorships served exclusively or mainly the political interests of the party-state. 16
The questions of transition
The overwhelming majority of criminal offenses—theft, murder, and so on—do not have clear political background. Consequently, the fight against them cannot be different in principle for either of the former Cold War adversaries. Besides, with reference to the interdependence of the Hungarian police and the Party, critics from traditional democracies often came to such conclusions as “the police role in Hungary is not all that different from policing in other European nations” (Ward). Rubin went even further, stating that, apart from some specific aspects, “the Marxist/Leninist concept of public order in society does not differ in many respects from public order concepts of Western democracies”. Summing up this brief overview of the starting points and ultimate aims of transitional policing we can conclude that there are no clearly elaborated and universally accepted characteristics of totalitarian or democratic policing. This means that further investigation into the law enforcement structures of emerging democracies will not be able to apply deductive methods to determine the framework of research and basis for comparison. Contributions to a better understanding of Socialist in contrast to democratic law enforcement must be one of the goals, and the following steps must be taken in processing the data obtained from the first phase of the ‘Police in Transition’ project. Without overemphasizing the importance of such research, it can be added that the findings may well have even wider implications, as Otwin Marenin concluded: “The police are at the core of changes in society and the state, and their roles in the reproduction of both change and order need to be addressed empirically and theoretically.” In conclusion, I would like to emphasize again that the transition of the police is of course embedded in the transition of society—in the political transition. Answers to the questions concerning the functional and organizational changes undergone by the police can only be found in relation to the transition at the political and constitutional levels. It would be an oversimplification to assert that the political systems in Central and Eastern Europe are being transformed from totalitarian regimes into democracies. On investigation, the political, constitutional, legal, and other processes in posttotalitarian societies, with their post-totalitarian constitutional systems, are not exactly the same as those characteristic of traditional Western democracies or in keeping with the constitutional values of the West. In many post-socialist countries—including Hungary— processes are ongoing which in some respects point back to pre17
The questions of transition
totalitarian, sometimes even to pre-police state systems of government, but it is obvious that some police institutions are worse now than before the political change. One example of this is that under communism in Hungary police officers were obliged by law to reject unlawful orders. This is no longer the case. This does not indicate a movement towards democratic policing, whatever way we look at it. Although I do not have a clear picture of what democratic policing should be, there are constitutional values, international values, and even legally binding values, international agreements, and covenants which must be taken into consideration. Although I cannot answer how the police should develop in terms of structure, legal regulations, and behavior, it is clear that policing in many post-Communist states is against the constitutions of those states, besides contravening international and general human rights norms. In my view, it should be accepted that the rules and standards governing the police should not differ from those governing the functioning of other segments of society. This is not widely accepted in, for example, Hungary. However, the problem is not specific to Central and Eastern Europe. In Great Britain, the Prevention of Terrorism Act has been on the statue books for a long time, despite the fact that it clearly contradicts a number of traditional constitutional concepts of policing, and in general, with reference to the terrorist threat, deviates in some respects from constitutional values. Some politicians take the view that if you want to fight crime and to maintain public order you have to deviate from some general constitutional principles. To conclude, there should be more research into policing, and I am confident that the empirical data provided by the ‘Police in Transition’ project is a good basis from which to start. We must attempt to advise politicians and lawmakers, and to provide them with empirical data on policing. This would contribute much to the development of the constitutional and legal system, and even of the political system in the countries in transition.
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The Impact of Transition: A Comparison of Post-Communist Societies with Earlier ‘Societies in Transition’ Robert I. Mawby
While the concept ‘countries in transition’ has recently been applied to former Eastern Bloc countries in the process of transition into democratic societies with market economies (Zvekic 1996; 1998)—that is, post-Communist societies—the term itself has much broader scope. In essence, we may describe any society as in transition if it is subject to a fairly rapid, and probably contested, shift in its economic, social, and political structure. In the case of post-Communist societies, the impetus for such a shift has come from within the societies themselves, allied to the dramatic changes taking place at the same time in the (former) Soviet Union. A similar process can be identified as colonial societies achieve independence. In other cases it may be as a direct consequence of war, where the occupying powers seek to impose a new system on the conquered. In either case, what is fascinating for criminologists, especially police researchers, is the extent to which changes in the economic and, particularly, political systems impact upon policing. For example, one might ask whether a change in political structure necessitates a change in policing, and, where policies are implemented to change the nature of policing, how successful they are. The question becomes more fascinating where the ‘old’ police were closely identified with the former regime and where, therefore, reform of the police is high on the political agenda of the new political leadership. I shall argue that, despite the crusading zeal associated with new regimes, implementing change is a difficult business, and in many cases police reforms may be superficial rather than fundamental. To illustrate this point, I shall take three examples: postwar reforms enacted by the West in West Germany and Japan; the situation as Britain’s colonies gained their independence; and, in more detail, the current position in post-Communist societies.
The Impact of Transition: A Comparison of Post-Communist Societies with Earlier ‘Societies in Transition’
1. Postwar Reforms in West Germany and Japan Following the Second World War, West Germany was divided into three sectors, administered by the Americans, the French, and the British. Initially, each tried to reform the police in its own image: the British, for example, disarmed the police, a rather brief experiment in the hazardous conditions of the time. However, as Fairchild (1998) details, long-term reform of the police centered on concerns that the police should lose many of their extensive powers. This entailed curtailing police functions, demilitarizing the police, and to a certain extent checking the credentials of staff. However, the close association between militarism and professionalism, and the ‘need’ to secure the borders against the communist ‘threat’, meant that reforms were never as comprehensive as had been envisaged. Aldous’ (1997) critique of US attempts to reform the Japanese police are even more negative. He begins by describing the key features of the Japanese police as it emerged from 1874: it had a broad range of functions, including an active political role, and was highly centralized to the extent that it “surpassed its French progenitor in the level of centralization achieved” (Aldous 1997, 23). Relationships within the police organization and with the public are described as hierarchical and patriarchal, with arrogance and brutality common features. Although there was a localized component to policing, this operated more as a means of exerting central control than as a way local communities could influence policy, as was reflected in the growing importance of the Special Higher Police in the 1920s and 1930s. On one level it thus seemed obvious that the Allies would prioritize police reform and see a reformed police system as a key to the liberalization and democratization of Japan. However, attempts by the civil authority to reform the police, interestingly (and reflecting US bias) through decentralization, were deflected. One reason for the failure of reform was that economic crises and problems of disorganization and disorder left the government increasingly reliant upon the police during the transition phase, especially since the armed forces had been abolished. Another was the pressures of the US military that saw a strong and (relatively) unaltered police as an essential part of the armory to combat the communist threat. As a result, while a purge of senior police officials was relatively successful and police functions were curtailed in some res-
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The Impact of Transition: A Comparison of Post-Communist Societies with Earlier ‘Societies in Transition’
pects, more fundamental reforms were problematic. Decentralization was applied, in theory but not in practice, from 1948 to 1951; moves to abolish the household census failed; and, far from becoming more accountable, the police were able to exceed their powers, suppress prisoners’ rights, and enforce the law selectively. Traditional links between police, political system, and organised crime were similarly resistant to reform. Contrary to the more positive image of Japanese policing offered by academics such as Bayley (1991), criticisms of the police by internal (Miyazawa 1992) and external (Aldous and Leishman 1999) academics can be better understood in this context.
2. Colonial Systems While colonial policing was not exclusive to the British Empire (Cole 1999), many of the academic writings concerning colonial and post-colonial policing relate to the British situation. Across its Empire, the British government sought to establish a policing system that was integrated with the military and the civic administration and that provided tightly controlled and efficient government, where the needs of expatriates were catered for and the demands of the indigenous population suppressed where necessary. The model it used was the one first established for Ireland (Tobias 1977) where the police could not rely on public consent. There has been considerable debate over the extent to which differences between colonial societies exceed similarities, with Anderson and Killingray (1991; 1992) arguing persuasively that differences are marked. Nonetheless, colonial police may be characterized as (i) structurally more centralized and militaristic—for example armed and living as units in barracks; (ii) functionally giving more priority to public order tasks, but also having a number of administrative responsibilities; and (iii) deriving their legitimacy from their colonial masters rather than the indigenous population (Mawby 1990). Differences are, however, evident, not just between the colonies but also at different points in time. MacKenzie (1992) makes a threefold distinction, between: (i) the early stages of colonialism, where public order is primary and the emerging police is concerned with enforcing order; (ii) the more stable colonial phase, where dissent has been largely eliminated and the focus turns to ‘conventional’ crime, with a comprehensive structure of legal 21
The Impact of Transition: A Comparison of Post-Communist Societies with Earlier ‘Societies in Transition’
institutions being established; and (iii) the final phase, where independence is gained through (usually) a period of mounting disorder and a correspondingly punitive police response. Anderson and Killingray (1992) argue that in this latter phase the response of the colonial power is to accentuate the core features of the colonial model. For example, the number of police officers is increased, central control of the police is tightened, the police are insulated from the new democratic influences, the police are better armed, specialist units are established (for example, covert squads, riot control units), and links with the military are extended. That this should happen is not surprising. What is important to stress, though, is that it makes the transition to a system of policing by consent, what earlier practitioners saw as both desirable and unproblematic (Jeffries 1952), exceedingly problematic. Moreover, given the near inevitability of conflict and disorder after independence, the social control functions of the colonial police attained a new value. While the personnel may have changed, the essential features of police structure and functions often remained. In India, for example: In practice…it is hard to see that any significant change in police methods and attitudes occurred after independence, though nationalist leaders like Nehru and Patel certainly claimed that it had, and cited the departure of the European police chiefs as clear evidence for this. Faced with a series of crises that threatened the unity and viability of the new nation state…governments in New Delhi and the provinces shelved indefinitely any possibility of a radical overhaul of the police organization they had inherited from the British…While hastening the departure of its European personnel, Congress ministers took over the colonial police organization (and its colonial mentality) largely intact, promoting to vacant senior posts Indian officers habituated to colonial policing roles and attitudes. The greatest value of the police to the new regime—as to its predecessor—was as an agency of coercion and intelligence…(Arnold 1986, 58)
Claims that the largest democracy in the world still operates under a colonial police system are of particular relevance for the new democracies of Central and Eastern Europe.
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The Impact of Transition: A Comparison of Post-Communist Societies with Earlier ‘Societies in Transition’
3. Changes in Central and Eastern Europe Prior to the political upheavals of the late 1980s, the police systems of Eastern Bloc countries can be characterized as incorporating political and administrative responsibilities, having a strong centralized secret police and a centralized, militaristic uniformed police, and being accountable to the party, with little popular mandate (Mawby 1990; see also Shelley 1997). The important part played by the police in defending the political regime against insurrection is clear. In the GDR, for example, the police played a key role in snuffing out anti-Communist protests in the 1950s and in protecting the Honecker government in the early 1980s. In Hungary, Matei (1994, 132) notes, “Classical policing and the police jobs such as crime fighting and the maintenance of public order played an inferior role in comparison to the activity of the political police”. It is also evident that, overall, the police in Eastern Bloc countries were charged with a wide range of responsibilities. For example, in Czechoslovakia they were responsible for citizen registration under the national identity card system, while in Hungary, “some of the tasks regularly assigned to the police would have been regarded [as] quite nonsensical in a democratic framework” (Dános and Tauber 1995, 119), and Ward (1984) lists licensing, censorship, and visa and passport control as police responsibilities. One aspect of police functions that finds expression in police structure is the crucial role played by the secret police. The Sigurimi in Albania (Koci 1997), the Stasi in the GDR (Cooper 1996; Cullen 1992), the Internal Security Corps or KBW in Poland (Dzialuk 1994; Interpol 1992), and the Department of State Security in Hungary (Matei 1994) were all noted for both their size and power, with uniformed police organizations either formally or informally subordinate to them. Alongside the secret police stood the uniformed police. These forces, also highly centralized but under the direction of the Ministry of the Interior, were extremely militaristic. In East Germany uniform and ranks were similar to those of the armed forces, and some units—the mobile police—lived in barracks (Cooper 1996; Cullen 1992). In Poland early intentions to recruit the Civic Militia locally were never realized (Dzialuk 1994). The militarism of the Hungarian National Police was illustrated in its military rank structure, officer class, and disciplinary structure, which was based on the court martial system (Matei 1994; Szikinger 1994). 23
The Impact of Transition: A Comparison of Post-Communist Societies with Earlier ‘Societies in Transition’
In the context of the functions and structure of the police, the lack of accountability of the police of Eastern Bloc countries is evident. Thus centralized and militaristic systems provided minimal local or civilian accountability, secret police were accountable to the party and ministry, not even—in many cases—to parliament, and the emphasis placed on political functions meant that those recruited to both police and citizens’ groups were chosen on the basis of party loyalty rather than other qualities and came under direct political control. It is also notable that during the mid 1980s, as these regimes faced more overt public opposition, the repressive political role of the police became more pronounced. That is, as the state was more directly confronted, the police—along perhaps with the military—were used to protect and sustain the unpopular regime. In Czechoslovakia, Zapetal and Tomin (1995) note that the police were associated with brutality in the period leading up to 1989, and Koci (1997) makes the same point regarding the police in Albania today. Similarly Jasinski (1995) describes the role of the police in attempting to repress Solidarity in Poland in the 1980s. In East Germany, both uniformed and secret police acted ruthlessly to sustain the Honecker government (Cooper 1996; Cullen 1992). Given the importance of the police in sustaining the ‘old’ system, it is scarcely surprising that the new democratic regimes of Central and Eastern Europe should have prioritized changing them. In the early days of the new regimes, changes to both police and penal systems were considered crucial. Jasinski (1995, 7), for example, notes that in Poland, “It was generally accepted that one of the most important elements of the socio-political transformation was the far-reaching modification of the criminal justice system”. Similarly, in Hungary “during the changes the police became the number one target of those forces which required a democratic change” (Pintér 1995, 110; see also Szikinger 1999). But have radical changes materialized? Clearly the most radical changes occurred in East Germany (Cooper 1996; Cullen 1992; Judge 1992). Following unification East Berlin’s police organization was absorbed into West Berlin’s, and elsewhere five new Länder were established, each with its own ‘county’ police system. All ex-GDR police were vetted: many were not reappointed, others were demoted. Those reappointed were retrained, subject to a probationary period, and (in Berlin) normally assigned to joint patrols with West German officers. Elsewhere changes were less radical, lustration—the reassessment of police and the weeding out of unsuitable officers—being 24
The Impact of Transition: A Comparison of Post-Communist Societies with Earlier ‘Societies in Transition’
the most common option taken up. This occurred in Czechoslovakia (Simovcek and Forro 1994) and in Hungary, where the police were all required to swear allegiance to the new republic, and those who refused were fired (Matei 1994; Pintér 1995). Borger (1995) traces the Polish lustration process back to the vetting committees established by Solidarity in 1990, which led to 14,000 of the 24,000 secret police officers being sacked. The militia also had to pass through a ‘verification’ procedure (Dzialuk 1994), although Murzynowski (1995) has argued that this was not thorough enough. Despite this, many fired officers have appealed against their dismissal (Borger 1995), while others have joined the rapidly expanding private sector (Jasinski 1995). Changes to police personnel thus appear to have been widespread in the early phase of development. But how have the function, structure, and legitimacy of the police been affected? Considering first police functions, in Hungary a number of police posts where the occupants appeared to carry out non-police tasks were abolished, although the police are still responsible for ID card and passport duties (Matei 1994). In contrast, the police do not appear to have moved significantly towards a service or welfare orientation, although in many countries—including Poland (Mikusinski 1995), Hungary (Katona 1994), and the Baltic States (Juriene 1995)—crime prevention has recently featured on the agenda. The descaling of the political functions of the police are illustrated in the dissolution of the secret police: for example in East Germany (Cooper 1996), Albania (Koci 1997), and Poland (Murzynowski 1995). Nevertheless, in some cases they were replaced by an organization with similar features, albeit with less power and more directly accountable. For example, in Poland the secret police was replaced by the State Security Agency, answerable—like the uniformed police—to the Ministry of Internal Affairs (Murzynowski 1995), and the agency now has only 10 percent of the 10,000 originally assigned to the KBW (Dzialuk 1994). Some attempts have also been made to demilitarize the uniformed police. For example, new uniforms—distinguishable from those of the armed services—were introduced to Czechoslovakia in 1992 (Simovcek and Forro 1994), and in Poland the rank structure was changed (Dzialuk 1994). Nevertheless the police remain armed, in some cases significantly so. In Poland they may be equipped with CS gas (Dzialuk 1994), and in Hungary with devices for producing electric shocks (Matei 1994). In Poland, where the public order police, the ZOMO, was dissolved in 1989, its replacement, 23 ‘police preventive units’, is armed with AK47s, CS 25
The Impact of Transition: A Comparison of Post-Communist Societies with Earlier ‘Societies in Transition’
placement, 23 ‘police preventive units’, is armed with AK47s, CS gas, and disabling nets (Dzialuk 1994). Similarly, while in some countries there have been attempts to create some local involvement in police organizations, or at least to give regions some degree of autonomy (Dzialuk 1994; Gorenak 1996), in general the police structure remains highly centralized. In Hungary, for example, the 1994 Police Act makes no changes to the centralized structure of the police, and while local government has developed markedly in other areas of public policy it seems to have been excluded from the police (Matei 1994; Szikinger 1994). One structural change that has been effected, however, is a commitment in some countries to develop closer contacts with the public through police volunteers and ‘neighborhood watch’ involvement. In Poland the police have encouraged the emergence of citizen patrols and established multi-agency crime prevention forums (Mikusinski 1995). In Hungary, Volunteer Police Units were wound up in 1991 and replaced by Civil Guards, formed independently of the police and operating as civilian patrols (Pintér 1995; Szikinger 1994). Katona (1994) suggests there were at that time as many as 600 self-defense organizations with some 40,000 members. These units, which may wear their own uniforms and carry guns on patrol, have formed their own national association (Fogel 1994, 156–168). While such initiatives may open up the police to outside influence, there is no guarantee that this will happen. Indeed, Szikinger (1994; 1996; 1999) argues that the Police Act in Hungary ignores the question of accountability and in some respects enhances the authority of the police over the public. Nevertheless the former influence of the Party over the police has, with some exceptions, been undermined, with government excluded from operational control of the police. For example, in Hungary the police are prohibited from engaging in political activity within their jobs (Szikinger 1996) and the National Police Headquarters is now largely autonomous of the Ministry of the Interior (Salgó 1992). The fact that the police are not directly subject to government on an operational level is illustrated by the well publicized interchange between the head of the national police and the Ministry in 1990 during the taxi-drivers’ strike, when the police chief made it quite clear that under no circumstances would he order his officers to fire on the strikers. This example illustrates the fact that changes have taken place. However, they have perhaps not been as radical as was envisaged
26
The Impact of Transition: A Comparison of Post-Communist Societies with Earlier ‘Societies in Transition’
at the time of the collapse of communism in Central and Eastern Europe. How is this reflected in research on the police? As yet, very little research has been conducted on the police in societies in transition, at least partly because of the lack of tradition of academics carrying out research on policing issues. Nevertheless, some research has been initiated by those working in police colleges or academies and the International Crime Victim Survey (ICVS) incorporates a number of questions on the police; the second sweep in 1992 included Czechoslovakia, Poland, Estonia, and the former GDR, as well as cities in the former Soviet Union and Slovenia (del Frate et al 1993). The third sweep, in 1996–97, attempted to incorporate all societies in transition (Zvekic 1996; 1998). The 1992 ICVS found generally lower levels of satisfaction with the police in Central and East European countries compared with Western Europe and other industrialized societies. Victims from post-Communist societies were less willing to report their crimes to the police, and while this is not solely due to perceptions of the police per se, in other respects the police were criticized. For example, Czechoslovakia and Poland had the lowest proportions of respondents who felt that the police did a good job in controlling crime, and victim satisfaction was also low, particularly in Poland (Van Dijk and Mayhew 1993, 35–37). In both countries the police were criticized for not doing enough, especially not detecting crime; some two-thirds of respondents felt the police did not patrol enough and the police were blamed for the rising crime rates (Siemaszko 1993; Valkova 1993). Kury (1993) describes a similar situation in East Germany, most notably in contrast to West Germany, and with regard to the situation in the former GDR where the police—in retrospect—were evaluated more positively. Thus 70 percent of burglaries in the East were reported to the police, compared with 84 percent in the West; 33 percent of victims in the East were dissatisfied with police services, compared to 26 percent of West Germans; and whilst 60 percent of East Germans were satisfied with their local police before unification, only 53 percent were afterwards (comparable figures for West Germany being 80 percent) (Kury 1993, 543–545). While the picture was less bleak for Slovenia (Pavlovic 1993), the general impression is of police systems still lacking widespread public support. Even at this time, however, there was some indication of an improvement in public perceptions of the police. In Hungary, for example, Finszter (1994) notes an improvement of ten percentage points in public satisfaction between 1990 and 1992. Similarly, in 27
The Impact of Transition: A Comparison of Post-Communist Societies with Earlier ‘Societies in Transition’
Czechoslovakia Zapetal and Tomin (1995) describe research carried out with 1000–1500 respondents in 1990 and 1991. Between the first and fifth survey, attitudes towards co-operation with the police and general satisfaction with police in the local area improved only marginally. However, distrust of the police fell from 60 percent in May 1990 to 34 percent in December 1991. Zvekic (1996) reports a further improvement in public perceptions of the police between 1992 and 1996. By the latter date levels of crime reporting had increased and overall evaluations of the police were more positive. Nonetheless, “the results…confirm a pattern established in the previous survey, that is to say in the developed world satisfaction with police handling reported cases is much higher that in countries in transition and in the developing world” (Zvekic 1996, 54). What is also notable, though, is a marked difference between post-Communist societies. For example, satisfaction among burglary victims reporting their crimes to the police was, in 1996, 61 percent in the Czech Republic and 54 percent in Hungary, but only 12 percent in Kyrgyzstan, 19 percent in Romania, and 21 percent in Poland and Georgia (Zvekic 1996, 53). In reporting the results of a public opinion survey in the Czech Republic, Sak and Semrad (1996), while noting that the police were heavily criticized, also show that the Czech public rate their police and the Hungarian police as better than the police of other postCommunist societies, albeit below those in Western societies. Mawby (1996) and his colleagues also found that there was a marked difference between burglary victims in Hungary and Poland, with criticism of the police considerable in the latter (see also Mawby et al 1997). However, this research also suggested, in line with Sak and Semrad (1996), that contact with the police produced a more favorable evaluation; there was more criticism of the police in general than of the police response to a specific incident. Moreover, it appeared that victims did acknowledge some improvements in policing: for example, they felt that the police were more ‘victim-oriented’ than in the past. Nevertheless, local reviews of policing and the results of recent research tend to suggest that changes to police systems in countries in transition have been disappointing. In the context of the situation in post-war West Germany and Japan and among post-colonial societies, however, this is scarcely surprising. One explanation for this is that governments have been reluctant to instigate radical change where social, economic and cultural changes have added to the pressure on criminal justice sys-
28
The Impact of Transition: A Comparison of Post-Communist Societies with Earlier ‘Societies in Transition’
tems in general and the police in particular. Economic inefficiency, collapse of living standards, and social dislocation have bred a criminogenic environment (Anderson 1995). In Lithuania, Abisala et al (1996) argue that economic factors such as privatization, unemployment, and inequality, combined with social and cultural factors, such as increased levels of individualism and nonconformity, to increase crime. In Poland and the former GDR the increased availability of firearms and commodities to steal aggravate the situation (Cooper 1996; Jasinski 1995). Recorded crime rates support such pessimistic forecasts. In Poland national statistics confirm a dramatic increase for a range of offences in the late 1980s (Gruszczynska and Marczewski 1995; Jasinski and Siemaszko 1995, 84–85) A similar picture is presented for Czechoslovakia (Suchy n. d.; Zapetal and Tomin 1995) and Hungary (Farkas 1996). In Russia crime rates rose from 1983–85 and then again from 1987 onwards, and health statistics show a recent quadrupling of the already high homicide rate (Afanasyev et al 1995). In the Baltic states, Lithuania has seen a near trebling of the crime rate since 1988 (Abisala et al 1996; Dapsys 1995), while the increase has been even greater in Latvia and Estonia (Leps 1995a); in Estonia the overall rate in 1992 was 350 percent its 1987 level, with homicides rising from 70 to 239 per annum (Leps 1995b). Of course, recorded crime rates may be misleading. It is arguable that victims may be more willing to report crime now than under previous regimes, and international crime victim survey (ICVS) data certainly give credence to that (Zvekic 1996; 1998). Moreover, crime statistics were manipulated in Eastern Bloc countries, such as Poland (Siemaszko 1995a; Siemaszko 1995b; Spirydowicz 1989; Szumski 1993). In the past this often led to the appearance that crime was ‘under control’. Victim survey data, while relatively recent, does however suggest that from comparatively low rates under communism crime rates in societies in transition may be rapidly catching up with those in the West and for some offences may actually have overtaken them. Thus while the 1991 ICVS showed crime rates in those post-Communist societies included to be around the European average, Poland was classified in the second highest crime grouping, Czechoslovakia the third; Czechoslovakia had the highest rate of all for burglary, Poland the highest for pick-pocketing and ‘other’ personal thefts (Van Dijk and Mayhew 1993, 17–26). Similarly, Sessar (1997) concludes that in Germany the crime rate in the East was well below that in the West but then rose to parallel it. 29
The Impact of Transition: A Comparison of Post-Communist Societies with Earlier ‘Societies in Transition’
It is also evident that fear of crime is prevalent in societies in transition. Wojcik et al (1997) show that among burglary victims, the impact of the crime is higher in Poland and Hungary than in England, and Mawby’s (1996) analysis of the same samples reveals higher levels of fear of crime among victims in postCommunist societies. The 1991 ICVS shows a similar picture, with fear of street crime particularly high in both Poland and Czechoslovakia (Van Dijk and Mayhew 1993, 40). Kury (1993) notes that while in 1990 crime rates in West Germany were actually higher than in the East, East Germans felt less secure, and Sessar (1996) argues that East Germans, less conditioned to high crime rates than their West German neighbors and further demoralized by economic crises and feelings of impotence since unification, are increasingly likely to hanker back to the ‘good old days’. Thus, comparing surveys conducted in 1991 and 1993, the percentage of respondents who said they had felt safe before 1989 rose from 36 percent to 52 percent. Elsewhere a raft of surveys report a similar story. For example, in St Petersburg, Afanasyev et al (1995) found crime to rate third behind inflation and poor health care as a serious contemporary problem and reported declining levels of perceived safety both in the home and on the streets. In Lithuania, Abisala et al (1996) argue that perceptions of the crime problem have intensified as public discontent with the new political regime and socio-economic conditions has risen; their findings—from 1993—reveal that 71 percent felt the government should prioritize the protection of order rather than political freedoms and that 51 percent felt it should first protect law and order, with only 40 percent feeling it should “solve economic problems” first. The outcome of this is discussed for Hungary by Szikinger (1996). Comparing the feeling in 1990 that a radical change in policing was called for with an acceptance by the government in 1992 that major changes were unnecessary, he complains: “Since then efficiency and strength of the police are on the agenda instead of the democratic reorganization of the still overcentralized and militaristic national police in Hungary” (Szikinger 1996, 256). Similarly, Mawby (1996) argues that in the light of current concern about crime many citizens of post-Communist societies criticize the police today as less efficient (albeit more approachable) than their predecessors. Crime statistics and public debate on policing methods are more open; lack of information in the past at least gave the impression that the police had crime under control. Thus Mawby identified a significant number of victims who felt 30
The Impact of Transition: A Comparison of Post-Communist Societies with Earlier ‘Societies in Transition’
that in the light of ‘apparent’ reforms the contemporary police lacked power and, conversely, suspects now enjoyed too many rights. It seems, then, that the socio-political context has changed dramatically in many post-Communist societies; increased crime rates and fear of crime have resulted in order maintenance replacing freedom and democracy at the top of political agendas. This may impact upon both police reorganization and other penal policy changes.
4. Discussion Given the high expectations for reform of the police systems of former Eastern Bloc countries, it is not uncommon to find commentators who are vociferously critical of the lack of change (see, for example, Szikinger 1999). This may well be justified, but the lack of reform is scarcely unexpected. In the context of postCommunist societies, escalating crime rates, greater public awareness of crime, and increased fear have all contributed to a situation where the dominant discourse may be community safety rather than democratic policing. A cursory glance at the experiences of other societies in transition, moreover, suggests that a move towards democratic government does not necessarily guarantee a radical overhaul of the police. Political instability or rising crime may be cited as justification for maintaining a ‘strong’ police. The examples from post-war West Germany and Japan, and from post-colonial societies, suggest that change is often slow, and subject to reversals. It may be easier to tackle police personnel, weeding out senior staff identified with the ‘old’ regime, than to radically change the structure and function of the police, or improve accountability processes. Equally it is clear that considerable differences do exist between the various societies under review: for example, in terms of previous policing systems in operation, and past and present political, social, and cultural underpinnings. Thus, there are marked differences between post-Communist societies both in terms of the reforms enacted and in terms of public perceptions of crime and policing. It would seem important, then, to focus on what changes have occurred in comparable societies, and push for similar reforms. At the same time, it is clearly crucial that police reformers 31
The Impact of Transition: A Comparison of Post-Communist Societies with Earlier ‘Societies in Transition’
confront the crime problem and address public concerns over community safety. It is insufficient to justify reform on the grounds that the ‘old’ system was ‘repressive’. Changes must be justified, not merely in terms of the intrinsic values of a more democratic police, but as part of a package of reforms designed to improve community safety and enhance quality of life.
References Abisala, A., R. Alisauskiene, and A. Dobryninas. 1996. Criminality and the Process of Democratization in Lithuania. Vilnius: University of Vilnius. Afanasyev, V., Gilinskij, Y. and Golbert, V. 1995. ‘Social Changes and Crime in St Petersburg’, in Victimization Perception after the Breakdown of State Socialism, ed. H. J. de Nike, U. Ewald, and C. J. Nowlin, pp. 133–150. Berlin: KSPW, GSFP. Aldous, C. 1997. The Police in Occupation Japan: Control, Corruption and Resistance to Reform. London: Routledge. Aldous, C. and F. Leishman. 1999. ‘Police and Community Safety in Japan: Model or Myth?’, Crime Prevention and Community Safety: An International Journal 1, no. 1: pp. 25–39. Anderson, M. 1995. ‘Police Co-operation with Eastern Europe in an EC Framework’, in Comparison in Policing: An International Perspective, ed. J-P. Brodeur, pp. 175–183. Aldershot: Avebury. Anderson, D. M., and D. Killingray. 1991. Policing the Empire. Manchester: Manchester University Press. Anderson, D. M., and D. Killingray (eds). 1992. Policing and Decolonisation: Politics, Nationalism and the Police 1917–1965. Manchester: Manchester University Press. Arnold, D. 1986. Police Power and Colonial Rule: Madras 1859–1947. Oxford: Oxford University Press. Bayley, D. H. 1991. Forces of Order: Police Behavior in Japan and the United States. Second edition. Berkeley: UCLA Press. Borger, J. 1995. ‘Poland’s Old Security Men Strike Again’, The Guardian (15 November). Cole, B. 1999. ‘Post -Colonial Systems’, in Mawby (1999), pp. 88–108. Cooper, B. 1996. ‘The Fall of the Wall and the East German Police’, in Policing in Central and Eastern Europe: Comparing Firsthand Knowledge with Experience from the West, ed. M. Pagon, pp. 239–252. Ljubljana, Slovenia: College of Police and Security Studies. Cullen, P. 1992. Working Paper II: The German Police and European Co-operation. Edinburgh: Dept of Politics, University of Edinburgh. Dános, V. and Tauber, I. 1995. ‘Relationship between the Hungarian Police and Society’, in Social Changes, Crime and the Police, ed. L. Shelley and J. Vigh, pp. 118–125. Chur, Switzerland: Harwood Academic Publishers. 32
The Impact of Transition: A Comparison of Post-Communist Societies with Earlier ‘Societies in Transition’ Dapsys, A. 1995. ‘Characteristics of the Crime Situation in Lithuania’, in Report of the VII Symposium of Criminologists of the Baltic States: Crime Prevention and Criminal Policing on the Way to Market Economy, pp. 33–45. Vilnius, Estonia: Institute of Law. Dzialuk, I. R. 1994. ‘Natural Police Profile, Poland’, in Policing in Central and Eastern Europe, ed. D. Fogel. Appendix V, pp. 102–115. Helsinki: HEUNI. Fairchild, E. J. 1998. German Police. Springfield, Mass: Charles C. Thomas. Farkas, A. 1996. ‘New Problems of Controlling Crime in Hungary’, Paper delivered at Ninth Baltic Criminological Seminar, Tallinn, Estonia. Finszter, G. 1994. ‘Police Models, with Special Attention to the Hungarian Police’, in Timoránszky (1994), pp. 3–22. Fogel, D. 1994. Policing in Central and Eastern Europe. Helsinki: HEUNI. del Frate, A .A., U. Zvekic, and J. J. M. Van Dijk. 1993. Understanding Crime: Experiences of Crime and Crime Control. Rome: UNICRI. Gorenak, V. 1996. ‘Organizational Changes in the Slovenian Police in the Period 1989–1996’, in Pagon (1996), pp. 229–238 Gruszezynska, B., and M. Marczewski. 1995. ‘Recorded Crime and Penal Policy’, in Jasinski and Siemaszko (1995), pp. 11–19. Interpol. 1992. ‘Poland’s Painful Transition to Democratic Policing’, Police (28–29 April). Jasinski, J. 1995. ‘Crime Control in Poland: An Overview’, in Jasinski and Siemaszko (1995), pp. 6–10. Jasinski, J., and A. Siemaszko (eds). 1995. Crime Control in Poland. Warsaw: Oficyna Naukowa. Jeffries, S. C. 1952. The Colonial Police. London: Max Parrish. Judge, T. 1992. ‘2 into 1 Won’t Go Smoothly’, Police (19–22 January). Juriene, L. 1995. ‘Urgent Problems of Crime Prevention in Practice’, in Report (1995), pp. 99–103. Katona, G. 1994. ‘Survey on Crime Prevention’, in Timoránszky (1994), pp. 37–44. Koci, A. 1997. ‘The Politics of Protest Policing in Albania’, unpublished paper, Scarman Centre for the Study of Public Order, University of Leicester. Kury, H. 1993. ‘Germany’, in del Frate et al. (1993), pp. 537–545. Leps, I. A. 1995a. ‘The Estonian Freedom Struggle and the Crime Situation’, in Report (1995), pp. 46–53. ———. 1995b. ‘An Option for a State Programme to Grant Law and Order in the Republic of Estonia’, in Report (1995), pp. 138–146. MacKenzie, J. M. 1992. ‘General Editor’s Introduction’, in Anderson and Killingray (1992), pp. ix–x. Matei, L. 1994. ‘National Police Profile, Hungary’, in Fogel (1994), Appendix 1X, pp. 130–150. Mawby, R. I. 1990. Comparative Policing Issues: The British and American Experience in International Perspective. London: Routledge. ———. 1996. ‘Comparative Research of Police Practices in England, Germany, Poland and Hungary’, in Pagon (1996), pp. 473–485. Mawby, R. I. (ed). 1999. Policing across the World: Issues for the Twenty-First Century. London: UCL Press.
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The Impact of Transition: A Comparison of Post-Communist Societies with Earlier ‘Societies in Transition’ Mawby, R. I., Z. Ostrihanska, and D. Wojcik. 1997. ‘Police Response to Crime: The Perceptions of Victims from Two Polish Cities’, Policing and Society 7 (1997): 235–252. Mikusinski, W. 1995. ‘City and Violent Crime’, in Jasinski and Siemaszko (1996), pp. 68–72. Miyazawa, C. P. 1992. Policing in Japan: A Study on Making Crime. New York: SUNY Press. Murzynowski, A. 1995. ‘Administration of Criminal Justice’, in Jasinski and Siemaszko (1996), pp. 53–62. Pagon, M. (ed.) 1996. Policing in Central and Eastern Europe: Comparing Firsthand Knowledge with Experience from the West. Ljubljana, Slovenia: College of Police and Security Studies. Pavlovic, Z. ‘Ljubljana (Slovenia)’, in del Frate et al. (1993), pp. 587–594. Pintér, S. 1995. ‘The Effect of Social Changes on the Police’, in Shelley and Vigh (1997), pp. 109–117. Raska, E., and J. Saar (eds). 1997. Crime and Criminology at the End of the Century. Tallinn: Estonian Natural Defence and Public Service Academy. Report of the VII Symposium of Criminologists of the Baltic States. Crime Prevention and Criminal Policing on the Way to Market Economy. 1995. Vilnius, Estonia: Institute of Law. Sak, P., and J. Semrád. 1996. Role policie ve spoleènosti v ocekáváni verejnosti. Prague: Police in Akademie Ceské. In Czech with summary in English. Salgó, L. 1992. ‘Hungary and Security’, in Timoránszky (1994), pp. 5–18. Sessar, K. 1997. ‘Social Transition and Fear of Crime’, in Raska and Saar (1997), pp. 165–177. Shelley, L. 1997. Policing Soviet Society: The Evolution of State Control. London: Routledge. ———. 1999. ‘Post-Socialist Policing: Limitations on Institutional Change’, in Mawby (1999), pp. 75–87. Shelley, L. and J. Vigh. 1995. Social Changes, Crime and the Police. Chur, Switzerland: Harwood Academic Publishers. Siemaszko, A. 1993. ‘Poland’, in del Frate et al. (1993), pp. 631–637. ———. 1995a. ‘Unreported Crime’, in Jasinski and Siemaszko (1995), pp. 77–82. ———. 1995b. ‘The Media and Crime’, in Jasinski and Siemaszko (1995), pp. 20–27. Simovcek, I., and P. Forro. 1994. ‘National Police Profile, Czechoslovakia’, in Fogel (1994), Appendix III, pp. 80–90. Spirydowicz, W. 1989. ‘Crime and Mass Media in Poland’, The Review of Comparative Law 4: pp. 125–135. Stead, P. J. (ed.) 1977. Pioneers in Policing. Maidenhead: Patterson Smith. Suchy, O. n. d. ‘The Penal and in Czechoslovakia’. Unpublished paper. Szikinger, I. 1994. ‘The Police in Hungary Today’, in Timoránszky (1994), pp. 23–35. ———. 1996. ‘Continuity and Change in Hungarian Policing in the Mirror of Public Security Detention’, in Pagon (1996), pp. 253–263. ———. 1999. ‘Law Enforcement in Hungary during the Transition to Democracy’, Crime Prevention and Community Safety: An International Journal 1, no. 1: pp. 71–77. 34
The Impact of Transition: A Comparison of Post-Communist Societies with Earlier ‘Societies in Transition’ Szumski, Z. 1993. ‘Fear of Crime, Social Rigorism and Mass Media in Poland’, International Review of Victimology 23: pp. 209–215. Timoránszky, P. (ed.). 1994. Rendészeti tanulmányok. Budapest: BM Rendészeti Kutatóintézet. Tobias, J. J. 1977. ‘The British Colonial Police: An Alternative Police Style’, in Stead (1977), pp. 241–261. Valkova, J. 1993. ‘Czechoslovakia’, in del Frate et al. (1993), pp. 493– 499. Van Dijk, J. J. M., and P. Mayhew. 1993. ‘Criminal Victimization in the Industrial World: Key Findings of the 1989 and 1992 International Crime Surveys’, in del Frate et al. (1993), pp. 1–49. Ward, R. H. 1984. ‘Police and Criminal Justice in Hungary’, Police Studies 6, pp. 31–34. Wojcik, D., S. Walklate, Z. Ostrihanska, R. I. Mawby, and I. Görgényi. 1997. ‘Security and Crime Prevention at Home: A Comparison of Victims’ Response to Burglary in England, Poland and Hungary’. International Journal of Risk, Security and Crime Prevention 2, no. 1: pp. 38– 48. Zapetal, J., and M. Tomin. 1995. ‘Attitudes of the Czechoslovak Public towards the Police after 1989 in Light of Empirical Investigation’, in Shelley and Vigh (1995), pp. 190–194 Zvekic, U. 1996. ‘Policing and Attitudes towards Police in Countries in Transition’, in Pagon (1996), pp. 45–59. ———. 1998. Criminal Victimization in Countries in Transition. Rome: U.N. (UNICRI series no. 61).
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Comparative Studies and Country Analyses
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Police Organization and Accountability: A Comparative Study Renate Weber
A proper understanding of the role of the police in society must underlie any adequate approach to police organization, functions, and accountability, in all their aspects. Generally, the public perception is that the most important tasks of the police are defending public order and fighting crime. But are these two functions valuable in themselves? Or are they necessary means for the establishment of a peaceful environment in which all can live safely, enjoy their rights, and pursue their own goals with dignity? If this is the case, the police should strive to establish and preserve such a peaceful state of affairs. But this also implies that what the police do directly affects people’s lives: if the police do not do their duty people must live in an unsafe society, and their dignity, rights, and freedoms will be seriously jeopardized; it is even worse when the police, instead of securing a safe society, abuse their powers, so undermining their very foundations. This is what the preamble of the Code of Conduct for Law Enforcement Officials (adopted by UN General Assembly resolution 34/169 of 17 December 1979) implies when it states that UN member states are “[m]indful that the nature of the functions of law enforcement in the defense of public order and the manner in which those functions are exercised have a direct impact on the quality of life of individuals, as well as of society as a whole”. If this really is the role of the police, then it must be the same in all societies, regardless of a country’s history. This means that similar rules should function with respect to fundamental aspects of the police in every country. Of course, disparities will still exist because there are many differences between countries, but they should not be extreme. Among these basic considerations is the character of police organization, whether it is military (quasimilitary) or civilian, something which has important consequences:
Police Organization and Accountability: A Comparative Study
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On the issue of centralization versus decentralization it has been shown that, while it is possible to have a highly centralized civilian police, it is not possible to have a decentralized military-style police. But if the true role of the police is to ensure a peaceful and safe environment, decentralization is a major way of bringing the police as close as possible to the community—and individuals—it must serve. The nature of the relationship between the police and its officers is also different in a military-style police and in a civilian one. While in a civilian police its members are rather civil servants—and enjoy appropriate rights and benefits— police officers operating in a military structure are bound by military discipline and order: disobeying an order issued by a superior is a crime, in some cases even if the order is unlawful. The advantages enjoyed by police officers in a military structure are rather privileges than rights and there is a price to be paid, namely, the fact that privileges may also easily be withdrawn; generally, the judicial review of unlawful internal measures, including dismissal from the force, is absent. It is much easier to assign tasks that are not specifically police-related when the force is a military-style one, such as involvement in secret service activities, or even in activities which are normally the province of the army. Trade unions—normal for civilian institutions—are very rarely to be found in military-style police forces and when they exist generally do not play a significant role. The nature of information handling is also different. While it is usual for the police to handle confidential information, in the case of a military-style police almost everything—including the salaries of the officers—is considered to be a ‘state secret’, as the general perception is that whatever concerns the military has a direct relation to state security. Differences also exist in respect of prosecution for offenses. While in a civilian police the law enforcement officials are investigated and prosecuted by civilian magistrates, enjoying the same rights as all other citizens, for the members of a military structure, investigation and prosecution may be undertaken only by military prosecutors and judges. Sometimes this may be to the benefit of the accused police officers—as some degree of corporate loyalty is likely to exist—but it is very damaging for society as a whole. In other circumstances, this may also be misused as a way of keeping police officers under control. 40
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Police supervision and accountability are much more effective in relation to a civilian police force than in the case of a military-style force. Of course, police control and accountability depend very much on the democratic traditions and legal culture of a country, but experience shows that it is easier to cope with these issues when the police has a civilian organization and structure.
Bearing all this in mind, together with the preamble of the UN Code of Conduct and the role of the police in society—the duties which law enforcement officials should perform according to their mandate—one would expect to see the most important organizational or practical policing issues regulated by the constitution, the basic law of any country. There are several issues which should find their legal framework—at least in terms of guidelines for further legislation—in the fundamental laws, including the police mandate, police organization, the status of police officers, the limits of policing, and remedies against police abuses and miscarriages of justice. Surprisingly, constitutions tend to be rather vague in this respect, although most have provisions on fundamental rights and freedoms. In this paper, I shall discuss how the countries participating in the project ‘Police in Transition’ (Bulgaria, Czech Republic, UK, Germany, Hungary, Poland, Romania, Slovakia, and Yugoslavia) deal with the organization of the police, the status of police officers, police control and accountability, and remedies against police abuses.
1. The Organization of the Police and the Status of Police Officers 1.1 Organization and Structure One of the most important differences between Central and Eastern Europe and the well established Western democracies concerns the character of the police. Former communist countries seem to be finding it very difficult to abandon the heritage of the Soviet system, namely, a militarized police, acting upon orders, with individual police officers having little to say or do on their own initiative. Usually, this militarized character goes hand in hand with extreme centralization. 41
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In Bulgaria, the Ministry of the Interior has sole authority over the agencies acting within its framework, the most important being the National Police, the National Service for Organized Crime, the Border Police, and the Gendarmerie. There are no constitutional provisions guaranteeing a clear separation between the army and the police. According to the Defense and Armed Forces of Bulgaria Act, the “armed forces” include not only the army, but also other government agencies, including those within the jurisdiction of the Ministry of the Interior. But—with the exception of the military police—the army does not have law enforcement powers and it is not involved in any activities close to law enforcement. It is even harder to draw a precise line between the military and some police forces—namely, the Border Police and the Gendarmerie—due to their organizational structure. According to the Ministry of the Interior Act, the Ministry of the Interior also has territorial units—named Regional Directorates of the Interior—which have at their disposal units of the national/central agencies. All national agencies report to the Minister of the Interior who has ultimate decision-making powers. The Heads of the Regional Police Units report to the Director of the respective Regional Directorate of the Interior. The major law enforcement agencies are the National Police and the National Service for Organized Crime, in charge of crime detection and prevention, and the protection of public order. As a consequence of the military character of the police, several aspects related to their organization and structure are considered to be ‘state secrets’: this is the case, for example, with police numbers. The same philosophy applies to budgetary matters: the only publicly available information is the budget of the Ministry of the Interior as a whole. But there is no official data on what funds are allocated to each national agency under its authority. In Hungary, the situation is similar. Besides enhancing guarantees of human rights, the revised Constitution (1989) adopted a new chapter dealing with the armed forces and the police. The new constitutional provisions prescribed regulations on police organization and activities to be codified by an Act of Parliament requiring a qualified majority. In 1993, a new amendment to the basic law was adopted, expressly authorizing border guards to carry out policing duties while not changing its status as part of the armed forces. However, the 1994 Police Act did not change the military-type structure of the force, although it opened the way to employing civil servants to perform administrative duties. In 1996 the Act on the Service Relations of Police Officers was adopted. The law uses the general term “armed bodies” and de42
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termines the rights and obligations of all officers serving in bodies structured in a military framework, the police included. The 1991 Romanian Constitution has only one reference to the police, in article 117, paragraph 3, which reads: “provisions under paragraphs 1 and 2 [both concerning the army’s mandate, source of authority, and further organization—author’s note] shall apply accordingly to the police and security services of the State, as well as to other components of the armed forces”. The Romanian police is a militarized structure and all its activities are subject to military discipline. The police are a highly centralized agency within the Ministry of the Interior and, according to the 1994 Law on the Police, are structured as follows: The General Police Inspectorate (headed by a General Inspector); the General Police Directorate of Bucharest (Headed by a General Director); the District Police Inspectorates (headed by District Inspectors); the Police Inspectorate for Railway, Air, and Naval Transport; educational institutions for police officer training. With the exception of the Rector of the Police Academy, who is a civilian, all the directors and inspectors mentioned above have military rank. In Slovakia, the only connection between the police and the Constitution relates to the role of the police, namely, to carry out its tasks in such a way as to maintain the fundamental philosophy of its operations, derived directly from the Constitution, to respect the laws, and the principles of democracy, human dignity, and morality. Police activity is regulated by the Act on the Police Corps, the Railway Police, and the Prison Officer Corps, the service relationship being a reflection of the military organization. In the Czech Republic the situation is rather different, although the police are subordinate to the Ministry of the Interior and remain a centralized force. The structure of the Czech police is defined by an order issued by the chief of police and encompasses departments with national competencies, departments with regional competencies, and district headquarters. Although the Polish police are a uniformed, armed force, their internal structure reflects a civilian rather than a military organizational philosophy. A police officer is not subject to army discipline and if he commits a criminal offense he will be investigated by a civilian prosecutor and brought before a civilian, not a military court. Police officers are not employees, but appointed state functionaries. Service in the police is characterized by several principles, such as: vertical service subordination, secrecy and confidentiality, acting on orders or instructions, and a court of honor which examines violations of professional ethics. As a con-
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sequence of the civilian character of the force, most personnel decisions are subject to judicial review by administrative courts. In the Federal Republic of Germany, the tasks of the police are laid out either in the Basic Law or in the Constitution of each Land. The organization of the police clearly reflects a civilian organizational philosophy and a corporate identity. In England and Wales, where there is no written constitution, the role of the police derives from the Common Law and from specific legislation. While having a hierarchical, rank-based chain of command and being traditionally regarded as a disciplined service, the British police service is decentralized in many respects. The Yugoslav case is rather unique. Policing matters are dealt with by the Constitution only in the sense of restricting the rights of police officers. There are three distinct police forces in Yugoslavia: Federal, Serbian, and Montenegrin. They have their own separate commands, which are independent of one another. Each police force is composed of a state security service and a public security service. The Federal Police force maintains a low profile and the most important task of the Federal Ministry of Internal Affairs is maintaining relationships with the internal ministries of other countries. Federal services are neither entitled nor equipped to act on the territories of the Republics. The internal structure of the police is predominantly based on a military organizational model and is closed to any lateral influence. The Serbian and Montenegrin ministries of internal affairs have their own organizational set-up which does not match the administrative structure of the respective republics. Hierarchy is the ruling principle in all police forces in Yugoslavia, but the differences between Serbia and the two other forces appear to be significant. In Serbia, not only does the internal structure reflect a military philosophy, but the police force is completely militarized. In 1995 a system of ranks was introduced with 18 levels, so that the Serbian police are similar to the army to a considerable extent. Up to 15 high-ranking officials, including the Dean of the Police Academy, were promptly promoted to the rank of police general. Military sciences—military and police tactics, theory of military operations—are taught at the police academy, including training in handling heavy weapons and piloting helicopters. Uniformed police units are equipped with weapons such as mortars, bazookas, and other rocket launchers, mines, and so on. These changes may indicate a lack of confidence in the Army on the part of the Serbian regime, but also as a way of substituting army functions by police ones, since there is an obligation under the Dayton Agreement to reduce the armed forces. In 44
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any case, this reflects a very different philosophy concerning the role of the police in society. Instead of fighting crime and protecting public order, the police are seen as a force directed against an enemy, regardless of whom this enemy might be.
1.2 Centralization or Decentralization? Military structures are generally centralized. In Bulgaria, where the police are highly centralized, decentralization is not understood as a matter of granting more powers to local at the expense of national structures, but giving more autonomy to the different national services within the Ministry of the Interior. Granting more powers to the Regional Directorates of the Interior is a way of maintaining the centralized structure. They are organized like territorial Ministries of the Interior, with a similar structure and system of subordination. The police are subject to the Minister of the Interior and there is little interaction with local and municipal authorities, what there is being based not on any formal subordination of the police to the local authorities, but rather on the general duty of the police to assist any governmental authorities in the performance of their tasks. In Hungary, National Headquarters is the focal point of the centralized force, with powers to control the whole system. A National Commissioner appointed by the Prime Minister, but reporting directly to the Minister of the Interior, is the chief of all police officers. There are 19 county police forces, plus the capital, which has county status. Local police stations, serving several municipalities, represent the lowest level of the pyramid. The Hungarian paradox is that, although since 1990 substantial decentralization of general administration has been achieved through the introduction of a solid system of local government to replace the previous Soviet-type network of councils, further centralization has taken place within the police. While local police forces have been recognized as legal entities with the power to conclude contracts, the 1994 Police Act deprived these agencies of relative independence, declaring that only the county forces and the National Headquarters constitute legal entities. Within the Polish police, power is centralized, as manifest in the organizational structure of the force and in the position of the Chief Commander as the superior of all police officers, irrespective of the service within which they operate.
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In Romania the whole structure is strictly hierarchical, the General Police Inspectorate being in complete command. The General Inspector is answerable only to the Minister of the Interior. Orders given by the Minister of the Interior or instructions of the General Inspectors are compulsory for local police forces, which are merely the local branches of the General Inspectorate. Slovakia is similar: the police are centralized, individual units—Police Corps, Railway Police, Prison Officer Corps—being directly subordinate to the respective ministers, who are entitled to appoint and dismiss their chiefs. The ministers are accountable directly to the National Council of the Slovak Republic. The Minister of Interior Affairs takes action and makes decisions in service-related matters not only in the case of members of the Police Corps, but also in that of the Railway Police and the Prison Officer Corps. The Federal Republic of Germany has adopted another approach. The organization of the police is decentralized and falls under the jurisdiction of the Länder. Only the Federal Crime Office and the Border Police are centralized forces, since their activities cover the whole Federation. The UK case is even more significant. There are 43 police forces in England and Wales–often referred as the ‘Home Office’ forces—six in Scotland, and one in Northern Ireland. In addition to all these, there are a number of other police agencies which operate under statute: the Ministry of Defense Police and the British Transport Police are the two major ones. The Isle of Man and the Channel Islands of Jersey and Guernsey also have their own police forces. Until recently there has been resistance to the development of a national police force. However, due to the need to maintain a cohesive approach to national and international organized crime and to information technology the 1996 Police Act organized three police services at the national level: the National Criminal Intelligence Service, the National Crime Squad, and the Police Information Technology Organization. They have specific tasks: the National Crime Intelligence Service gathers, sorts, and analyzes information in order to provide the police forces in Great Britain, the Royal Ulster Constabulary, the National Crime Squad, and other law enforcement agencies with criminal intelligence. It is headed by a Director General whose appointment is approved by the Home Secretary. The National Crime Squad’s main function is the prevention and detection of serious crime which is of relevance to more than one police area in England and Wales. The Police Information Technology Organization is involved in activi46
Police Organization and Accountability: A Comparative Study
ties related to the information technology systems used by police forces and authorities. However, it must be emphasized that the establishment of these national agencies does not change in any way the decentralized character of the police in England and Wales. They are agencies which cover the whole country in some specific areas and assist the decentralized police forces as far as possible. Apart from these local or centralized agencies, in all cases legal authority is vested in individual police officers who can exercise their discretion. Finally, the Yugoslav police system has some paradoxical characteristics. It is decentralized in the sense that there are three independent forces whose jurisdictions do not overlap, but at the same time it is highly centralized because in the two Republics— where police functions are effectively carried out—the police organizations are extremely centralized.
1.3 The Legal Status of Police Officers One of the major issues related to whether a police force is military or civilian in orientation is the legal status of police officers. In Bulgaria, jurisprudence regards police employees as civil servants, although there is no legal definition of a civil servant. However, the legal status of police officers is different from the legal status of ordinary civil servants: there are special rules with respect to employment, dismissal, and promotion, and police officers are limited in exercising certain basic rights. When dismissed, for example, they are not entitled to a judicial review, except in the case of disciplinary punishments, but even in such cases the procedural rules to be followed and the deadline to be met are different from those applicable with respect to other civil servants. When charged with crimes, police officers are subject to an investigation conducted by military prosecutors and their case may be decided only by military courts. It is interesting to note that the remilitarization of the Hungarian police began in 1990 after a blockade protest which paralyzed the whole country. The fact that the police were unable to cope with the situation was considered the result of its lack of military character. The 1994 Police Act confirmed this militaristic approach in determining the legal status of policemen. A Bill on the Rights and Duties of Law Enforcement Personnel (including the police, but excluding the military) was submitted to the Par47
Police Organization and Accountability: A Comparative Study
liament in 1994, but was never adopted. Police officers are soldiers in terms of the criminal law. This means that they are subject to special provisions of the criminal code in addition to the ordinary ones. For example, disobedience of an order is an offense, even if the order proves to be unlawful. The only justification of a refusal to comply with orders is avoidance of committing a criminal offense. Other limitations of policemen’s rights include the denial of the right to be members of political organizations and the right to strike, and restriction of free movement. At the same time, there are also important privileges which other public servants do not receive, such as higher salaries, housing, and other social benefits. In Romania, the legal status of police officers is the same as that of military personnel. There are ranks, and rules concerning promotion, discipline, and subordination to one’s superiors. Several privileges are attached to this status: salaries which are higher than average, bonuses, free uniforms and/or civilian clothing, free medical care in their own hospitals and clinics, medical insurance from health insurance companies which are not accessible to the rest of the population, and in some cases even free public transport. In 1996, a draft law on the Status of Police Officers contained a number of privileges, one of which was extremely dangerous: a police officer could not be investigated for any crime by the military prosecutor’s office without the approval of the Minister of the Interior. The draft law was never discussed by the Parliament and its status at this moment is rather uncertain. Restrictions of rights can also be found in Romania: some are similar to those existing in other countries. For example, police officers are not allowed to join political parties, they are not allowed to go on strike, and their freedom of movement is also restricted in the sense that they may be recalled in case of emergency. However, there are also some restrictions which derive from the military character of the police: police officers are not allowed to set up their own trade unions or professional associations which could engage in negotiations with the Ministry of the Interior or the General Police Inspectorate; if police officers want to marry foreigners or persons with dual nationality they need the approval of the Minister. If dismissed, police officers have no resort to a judicial review. In Slovakia, police officers are obliged to respect service discipline, that is, they are required to fulfill the service duties stipulated by law, other regulations of general application, and the orders, instructions, and directions of their superiors. At the same time, policemen are restricted as regards membership of political parties, as well as business activities. They must obtain written 48
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approval from the service authority for the acquisition of property from other persons or to become members of boards of directors, supervisory boards, and other bodies of partnerships, companies, or cooperatives. In the Czech Republic, the legal status of police officers is based on Law 186/1992 Coll. on the Service Status of Czech Police Members, which specifies the relationship of police officers to the Czech Police Force while performing their duties. The criminal law bestows on on-duty police officers the status of public official. This status provides legal protection against liability for actions contrary to the law. The same law deals with police officers’ careers, ranks, salaries, and so on. Among the main advantages is the level of salary, which is much higher than that of other state employees. Rights limitations include the fact that police officers may not go on strike, they are not allowed to engage in business activities with the exception of educational activities and publication, and they may not participate in some civic activities which would compromise their independence and objectivity as police officers. Polish police officers are public servants under a special administration. Their relationship with the police force is regulated by the Law on the Police and provisions issued by the Chief Commander of the Police. Police officers must observe the principles of professional ethics, in particular the honor, dignity, and reputation of the service. If a police officer violates these principles he/she may be brought before a court of honor. Police officers must execute the orders and instructions of their superiors. Like other civil servants they enjoy several benefits, but at the same time they are subject to several restrictions: they are not allowed to join political parties, they need their superiors’ approval in order to run for the Parliament, and they are not allowed to go on strike, although they can establish or join their own trade unions. If they want to spend more than three days outside Poland they must notify their superiors, a procedure which is also consistent with the fact that they can be transferred to any locality in the country, even without their consent. In Yugoslavia, police officers are civil servants only in the sense that they are employees of the Government, but in fact they are soldiers. In the three police forces different rights and restrictions apply. The Federal Republic’s Constitution and the Montenegrin Constitution prohibit membership of political parties for police officers. The Serbian Constitution does not place similar restrictions on police officers and members of the public administration. The right to organize unions is refused only to the members of 49
Police Organization and Accountability: A Comparative Study
the Federal Police Force, while the constitutions of Serbia and Montenegro do not make such a restriction. Strikes are prohibited for all police forces. The civil servant status of police officers in Germany offers broad protection: police officers cannot be dismissed, they receive danger money, as well as payments for shift work, and they receive free uniforms. There are also some restrictions with respect to rights and freedoms which relate to police work: police officers are not entirely free to pursue political activities, they do not have the right to strike, and they can be obliged to work anywhere in the Land, even contrary to their wishes. In England and Wales, police officers have a degree of discretion in executing the powers granted by statute and common law. But the police service is a disciplined body with powers conferred by law and responsibilities enforced by a disciplinary code drawn up by Parliament. This means that police officers are not immune from instructions as to the manner in which they carry out their duties. The main benefit of the traditional role of the local policeman, the constable, is to be found in the accountability for individual conduct and in the relationships which this is supposed to engender within the framework of local policing. This is the root of the widely held belief that in Britain police work is essentially a form of community policing. There are some limitations concerning the rights of police officers related to business interests and freedom of expression. In recent years, there have been controversies about police officers who are members of Freemasons’ lodges. Although there is no official restriction on membership at present, it has been argued that membership of such a secretive organization is incompatible with an impartial policing role. Private conduct of police officers may be investigated at any time by investigative authorities, such as the police or HM Customs and Excise if an officer is suspected of committing criminal offenses. The salary system is on a fixed schedule with regular increases for each rank. Levels of remuneration are nationally agreed between the staff associations and officials through regular pay review procedures. Police salaries are generally comparable with those in the civil service and in the private sector, although top salaries in the private sector far exceed those of senior police officers. Other traditional benefits—such as the payment of housing allowances—have recently been eroded and this has raised the concern that the current level of salaries and the rewards package will be insufficient to attract recruits of the highest caliber.
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2. Police Control and Accountability. Remedies against Police Abuses The Preamble of the UN Code of Conduct for Law Enforcement Officials states that (a) “like all agencies of the criminal justice system, every law enforcement agency should be representative of and responsive and accountable to the community as a whole”, and (b) “every law enforcement agency, in fulfillment of the first premise of every profession, should be held to the duty of disciplining itself in complete conformity with the principles and standards herein provided and that the actions of law enforcement officials should be responsive to public scrutiny, whether exercised by a review board, a ministry, a procuracy, the judiciary, an ombudsman, a citizens’ committee or any combination thereof, or any other reviewing agency”. It is interesting to look at how far the countries participating in the ‘Police in Transition’ project—all are members of the United Nations whose General Assembly adopted the Code of Conduct—have met the requirements set forth in relation to police accountability and public scrutiny. 2.1 The Supervision of Police by State Organs In Bulgaria, the Minister of the Interior, a member of the Cabinet, is the highest authority with the most powers in terms of managing the police. He has the power to appoint and dismiss the top ranking personnel of the police agencies. There are no limitations with respect to his powers in issuing directions and instructions in individual cases. Due to his functions, he is not so much a supervising or controlling authority as the executive head of the police. It is the duty of the Prosecutor’s Office to make sure that legality is observed not only by individuals but also by government agencies. The Prosecutor may even cancel unlawful acts of the police or issue mandatory instructions and orders, particularly within a formal investigation. However, if the police refuse to carry out the Prosecutor’s instructions and orders, the Prosecutor has no remedy. One of the most important consequences of the military status of the police is that such a refusal is not “a refusal to carry out the orders of a superior” and therefore it does not constitute a criminal offense. Institutional disagreement between the police and the Prosecutor’s Office can only be resolved through negotiations. 51
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Monitoring the work of the police is also carried out by the Parliament and its National Security Committee, which has authority to oversee the work of the Ministry of Defense and the Ministry of the Interior. They may request any information and may question any Government official on issues of interest to them. In reality, parliamentary control has been used more as a tool of party political confrontation than as an instrument for police accountability. Czech citizens must have a guarantee that their rights, freedoms, and interests may be restricted only for legitimate reasons and in a manner specified by the law. In pursuit of this, police activities are controlled by the Parliament and other democratic institutions, above all by the Czech Parliament’s Committee for Defense and Security. Special committees are set up to deal with individual cases. Police activities are also controlled through executive authorities by state attorneys who monitor the compliance with legality of criminal investigations. The Hungarian Constitution asserts that the direction of the armed forces, the police, and law enforcement organs is the task and competence of the Government. The Prime Minster appoints and dismisses the National Commissioner of the Police, taking into consideration, but not being bound by, the findings of the competent Parliamentary Committee. The Government directs the police through the Minister of the Interior who is responsible for the proper functioning of law enforcement. His powers to direct the police cover all fields of policing, including investigation. This means that he may order an investigation, but he may never prohibit the police from launching one. The Ministry of the Interior facilitates internal auditing and has at his disposal a service which carries out covert crime investigation activities within law enforcement organizations, including the police. The Parliament can oversee and control the police through its specialized committees, which police officials have to appear before and submit reports to if required. The Ombudsman also has some supervisory powers. The prosecutors exercise their powers to control investigations conducted by the police. In Hungary, external supervision is considered to benefit primarily the criminal rather than the fight against crime, and therefore does not exist. The opinion of high ranking police officers is that any institution interfering with police matters constitutes an obstacle to operational efficiency. The Chief Commander of the Polish Police has to report to the Minister of the Interior. At the same time, police activities are supervised in a variety of forms by the Diet (the Polish Parlia52
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ment) through its Commission of Administration and Internal Affairs. Interpellations and parliamentary questions addressed to the Prime Minister, to other members of the Cabinet, or to the President of the Chief Board of Supervision constitute an extensively used form of parliamentary supervision over police activities. Prosecutors also supervise police activity in individual investigations. Another institution which examines how the police observe human rights and freedoms is the Polish Ombudsman (Commissioner for Civil Rights Protection). In Romania, the picture is very much the same. According to the Law on the Police No. 26/1994, the Romanian police form part of the Ministry of the Interior. The Minister of the Interior is a civilian political appointee, a member of the Cabinet. He has full powers in running the ministry, and issuing orders, regulations, and instructions. He appoints and dismisses the General Inspector and the district police inspectors. At the same time, he is a member of the Supreme Council of National Defense, headed by the President. According to Article 118 of the Constitution the Supreme Council “shall organize and co-ordinate in unitary command the activities concerning the country’s defense and national security.” Thus, both the Cabinet and the Supreme Council supervise the Ministry of the Interior. Recently, issues such as the reorganization of the Romanian Police (its decentralization and demilitarization) have been discussed by the Supreme Council. The Minister of the Interior is accountable to the Parliament. There is a specialized committee in each of the two Chambers which deals with matters regarding national defense and public order. Both may ask for ‘clarification’ concerning various problems related to the activities of the Ministry of the Interior, the police included. The police may be accountable to the Ombudsman, mainly in respect of racial discrimination, but so far there is no evidence that the Ombudsman has been involved in such activities. In criminal investigations, prosecutors have the obligation to supervise police activities, therefore they have the right to issue mandatory requirements. Slovakia has a similar supervisory mechanism. The Police Corps is supervised not only by the Ministry of the Interior, but also by the National Council of the Slovak Republic and by the Government. The Prosecutor’s Office and the courts also supervise police activities, not as an institution but in individual cases. In Germany, the police are subordinate to the ministers of the interior of the respective Länder. Although the police authorities have the right to instruct the police, however, they do not have any authority to decide how the police go about a certain task. In 53
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criminal cases only the state prosecutor has the power to instruct the police. The term “supervision of the police by state organs” is rather inappropriate with respect to British policing: police officers there are subordinate to the law and to the law alone. The current system of accountability is based on the 1964 Police Act which provides a tripartite system of accountability, with responsibilities distributed between local police authorities, the Home Office, and the chief constable of each force. This arrangement has been endorsed by the 1994 Police and Magistrates’ Courts Act as amended by the 1996 Police Act. This tripartite system provides for accountability to Parliament through the Home Secretary, and to local residents through the local police authorities, which comprise elected local counselors, magistrates, and business representatives nominated by a central panel. Mechanisms of accountability and civilian oversight do not exist or do not function in Yugoslavia. In principle, the police organization is answerable to a civil body via the minister, who is accountable to the Parliament (in Serbia) or to the Government (Yugoslavia and Montenegro), but the scope and exercise of this accountability should be considered in light of the actual situation: the Parliament and the Government are organs of the ruling party from whose ranks anyone may be selected as Minister of Internal Affairs. It is worth mentioning that in Serbia the Minister of Internal Affairs is obliged to apply not only the laws and other acts enacted by Parliament and Government, but also the acts of the President of the Republic.
2.2 The Police and Local Authorities In countries where the police have a military structure, police accountability in respect of relations with the local authorities is almost non-existent. In Bulgaria, city mayors have some powers with respect to the police, mainly because the maintenance of public order in their jurisdiction is also among their duties. Therefore, they have the obligation to take all appropriate measures to improve the work of the police in protecting and guaranteeing public order. When the Ministry of the Interior issues instructions related to public order they must be immediately communicated to the mayors. Mayors have legal powers to give instructions to the police related to public order protection measures, and these instructions 54
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are mandatory. The police may appeal against these instructions before the County Governor—within three days—but such an appeal does not excuse them from following the instructions. When judging the appeal, the County Governor has the obligation to ask advice from the Minister of the Interior. But although the mayors have a formal power to instruct the police with respect to the maintenance of public order, they have no financial powers or other means to make the police follow such instructions. When, with the support of the Minister of the Interior, the police refuse to follow orders, the mayors have no remedy. Only if the refusal results in damages may mayors file a law suit. Another local government authority with supervisory powers over the police is the County Governor, who is the representative of the Government in a particular administrative unit. His powers are quite limited, however. In the Czech Republic, the practice developed so far consists of common meetings of municipal administration representatives and the management of the respective police departments, without, however, exercising real control over the police. Police centralization and militarization in Hungary reflects a philosophy contrary to the notion of allocating real powers to local government. The 1994 Police Act has provisions on cooperation between the police and local authorities, but with little substance to make them effective: for example, the Act does not recognize local statutes as legal norms. Police chiefs have to present reports on the public security of the relevant district and the local elected bodies may even initiate further inquiries, but the final decision will always remain with the police. The joint commissions which can be set up have no real powers. If a conflict arises between the police and the local authorities it will be dealt with by high-ranking police officers. Romania is no different in this respect. Although the police must cooperate with the local authorities—the prefect, the district council, the town council, or the mayor—it acts only on the orders of high-ranking police officers. The Law on the Police stipulates cooperation with local authorities and even the obligation of local police chiefs to periodically or upon request inform the prefects and the mayors on crime statistics, maintenance of law and order, and so on, but how information really circulates between them is not known. Currently, there is a debate on decentralizing the police and placing local police forces under the direct orders of the mayors. It is interesting to note that several mayors have worked out a set of proposals regarding the decentralization of the police, claiming that the local police should be under their command. 55
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In Poland, both the Law on the Police and the Law on Local Government provide that matters of public order should be a community’s own responsibility and that the local agencies of either central government or local government must participate in the protection of public safety. Local police commanders submit their annual reports to the appropriate heads of provinces, and regional and local councils. Upon the request of a head of a province, a community, or a mayor, local police are obliged to restore order. The police are also obliged to cooperate with and to supervise the activities of municipal guards, for whose training the police are also responsible. The possibility of local agencies making a contribution to the financial costs of police activities may also be seen as a form of cooperation. When carrying out its tasks, the Police Corps in Slovakia cooperates with local public authorities. There is a direct link with the Municipal Police, which is not part of the centralized structure of public administration, but a self-governing body established under the decision-making control of the municipal authorities. The Police Corps are bound to provide assistance to a municipality upon request and to the extent of their powers. In Germany, the police are subordinate to the Land. The municipalities are continuously kept informed by the police of any developments and observations with regard to public order and security. The municipalities can instruct the police within legal limits to execute certain measures but only the police can decide in what way these measures will be executed. England and Wales present a unique picture. A clear distinction needs to be drawn between the statutory structure of local police authorities and that of local governments. Although nine members of a Local Police Authority are also Counselors, and so members of the local government, the Local Police Authority is formally separate and independent of the local government structure. The Police Act makes provisions for local authorities to consider questions related to the functions of a Police Authority to be put to council members in open session. This represents an additional tier of local accountability. In addition to this structural relationship police forces regularly consult and cooperate with the officials of local government departments. This is usually in the context of crime prevention, local contingencies, or traffic management. In Yugoslavia, the municipality, which is the basic administrative unit, has no control over the police force acting on its territory. The only cooperation that may exist is based on good will and political affinities. 56
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2.3 Responsibility for Carrying Out Unlawful Orders or Instructions One of the most important aspects of the legal status of police officers is their relationship with their direct superiors and their responsibility for carrying out orders or instructions that are unlawful. In Bulgaria, refusal to carry out the order of a superior is not only a disciplinary infringement, but also a crime under the Penal Code. The responsibility for any damages or violations of rights which result from unlawful orders or instructions lies with the person who issued the orders. Such responsibility is disciplinary or criminal or civil, depending on the type of offense. The only exception regarding the responsibility of the person who carries out the order is when the order was ‘manifestly unlawful’. In such cases, both the person who issued the order and the person who executed it are liable. However, neither in the Penal Code nor in the Ministry of the Interior Act is there a definition of what a ‘manifestly unlawful’ order might be. Therefore, in order to apply this regulation, the courts need to balance the provisions prohibiting the particular instance of criminal behavior and the provisions prohibiting police disobedience. But the real problem is not the situation facing the courts, but rather that of the police officer who must make his own decision concerning what is and what is not ‘manifestly unlawful’. It is unjust to convict someone (police officers included) for not complying with a vague legal provision upon which the courts themselves may have different views. In the Czech Republic, police officers are obliged to keep their service oath and also to follow basic obligations while on duty. But a police officer is obliged to refuse to obey an order if by executing it he would commit a crime. The officer is also obliged to report such an instance immediately to a superior. If he executes such an order he bears full criminal responsibility. If a policeman believes that the order given to him by a superior is contrary to generally binding legal precepts, he is obliged to draw the latter’s attention to this fact. If the superior insists on the execution of the order, the subordinate police officer must execute it and in such cases the superior carries full criminal responsibility. If a police officer breaks the law he carries full criminal responsibility for his act and can be punished by the criminal law. Police officers in Hungary are soldiers and so, according to penal law, they are not punishable for executing an order. The person giving the order shall be liable for the crime committed upon order as its perpetrator. It is interesting to note that the Code of 57
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Conduct of 1990 demanded refusal to comply and prompt reporting to a competent superior if an order is obviously contrary to the law or obligations undertaken on oath. But the 1994 Police Act neither developed nor confirmed this provision. On the contrary, section 12 of the Police Act prescribed that, apart from cases in which the execution of an order would mean committing a criminal offense, a police officer may not refuse the execution of an unlawful instruction. In Poland, responsibility for carrying out unlawful orders or instructions belongs to the police officer if he/she is aware or has at least accepted that the execution of the order or instruction would lead to a criminal offense. But responsibility also lies with the superior who issues the unlawful order or instruction According to the Romanian Law on the Police, police officers may not offer as an excuse the orders of a superior or of another public authority to justify an infringement of the law. In the draft regarding police status there is one article which states that a police officer may refuse to carry out the orders of his superiors if he knows that by doing so a serious violation of human rights may result. The wording is rather vague, as it implies not only that the police officer should know that a serious human rights violation may result, but also that he should be able to decide that it is a serious violation and not just an ordinary one. In Slovakia, if a policeman thinks that an order, instruction, or directive given by a superior is contrary to the law he/she must inform that superior. If the superior insists on execution, the police officer must comply; otherwise, the police officer shall be held responsible and liable to disciplinary sanctions. But a police officer must refuse the execution of an order which involves committing a criminal offense. In Germany, every police officer is personally responsible for his/her actions towards citizens. Following the orders of a superior officer does not generally mean that the police officer is no longer responsible. If he/she has doubts about the rightfulness of an official order it is his/her duty to voice these doubts to the superior officer immediately. If the order is maintained and the police officer is still in doubt he must address the next superior officer. Only if this officer confirms the order will the subordinate police officer no longer be held responsible for executing the order. This rule does not apply if the order given is clearly punishable by law. If a police officer is ordered to execute an order because of an immediate threat and the next superior officer cannot be contacted in time, then he will not be held responsible later. A police officer may refuse to follow orders which would lead to the 58
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committing of a crime. If he follows the order he will be responsible for his action. According to British law, no police officer may be censured for failing to carry out an unlawful order. But the police disciplinary code does not countenance failure to carry out lawful orders. In accordance with the centralization which characterizes Serbia and Montenegro, every action taken by a police officer is attributable to the superior officer. The issuing of an order whose execution would constitute a criminal offense is a serious breach of police discipline and punishable by dismissal from the force. On the other hand, since there is no obligation for police officers to carry out unlawful orders or instructions, the one responsible for carrying out an unlawful order is ultimately the executing police officer. In fact, disobedience is lawful in such a situation. In this case, the problem is not so much the text of the law, but its implementation.
2.4 Complaints against the Police The available remedies in cases of unlawful police action are either individual (relating to individual police officers) or institutional (relating to the police service or the Ministry of the Interior). The individual measures applied can be disciplinary or criminal, with the addition of civil liability for damages. The police as an institution may be held responsible only with respect to civil cases for damages. In Bulgaria, victims of illegal conduct on the part of police personnel may address their complaints to the territorial Police Office, the Regional Directorate, or the Ministry of the Interior. There is no time limitation for such complaints. After a complaint is received, the head of the unit in question is obliged to investigate it and respond within a month. The complaint may be oral or written, providing as much detail as possible. Anonymous complaints are not considered. At the Regional Directorates and the Ministry of the Interior there are ‘Complaints Units’ specializing in investigating allegations of police misconduct. They are obliged to answer the complainant. If they find that police officers have committed violations they may only make recommendations. It is up to the head of the respective unit to take action. There is no appeal outside the Ministry of the Interior against the decisions of the police or the Ministry regarding such complaints. This is one of the reasons the public does not trust this system. 59
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It is interesting to note that if one wants to file a complaint, any information required from the police will not be given. The Instructions of the Minister of the Interior, which have never been published, also prohibit any employee from communicating with the press. As a matter of law, there is no legal obligation for the Ministry of the Interior to provide information. In a recent decision, the Constitutional Court stated that no governmental obligation to provide information could be read into the Constitution and such an obligation has to be created by ordinary legislation. But the issue of independent committees with investigating powers in such cases has been debated; while such a committee would be perceived by the public as ensuring the necessary impartiality, its establishment would run into strong opposition from the police. In the Czech Republic, if a citizen feels that a decision, an approach, or some other action on the part of a police officer was not right and proper he/she can make representations at the departments of complaint and supervision in the regional administrations. If a citizen is prosecuted he/she can also ask a prosecutor to confirm the legality of the police action. Another instrument of supervision over police activities is the possibility of initiating corrective action against decisions issued by an organ acting in criminal or administrative proceedings. In the Czech Republic citizens associations also have a place in the supervision of police activity. The law on criminal procedure gives them the right to take part in criminal proceedings, and to provide defendants with bail and other rights. They may also initiate an investigation of the legality of police actions. The Ministry of the Interior also monitors the activity of the police through its organs of supervision as part of its internal control system. In Hungary complaints against police officers must be submitted within 8 days to the police organ of first instance. The final decision will be taken by the police chief of the superior organ. In Poland there are several procedures related to complaints against police officers. First, there is the internal investigation, which takes place when a complaint is lodged with the Chief Commander. Such complaints generally concern the manner in which the police have taken action, although family matters and neighbors’ quarrels are also included. Outside the police structure, complaints against police officers are examined by the MSWiA Control and Supervision Inspectorate, parliamentary commissions, the Ombudsman, and non-governmental organizations. In Romania, individuals wishing to launch a complaint against police officers have two possibilities: for misdemeanors (insults, 60
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threats) they have to address such complaints to the accused police officer’s superior. For serious offenses (such as torture, illtreatment, illegal detention, and so on) the complaint must be lodged with the Military Prosecutor’s Office. Complaints may also be launched with the Ombudsman and the Parliamentary Committees of the two Chambers. Complaints against Slovak police officers are regulated by the Decree on the Handling of Complaints, Announcements, and Motions. The complaints must be launched with those authorities that are directly superior to the policeman against whom the complaints are directed. If a complainant alleges that an action taken or a decision made by the police was illegal, the complaint may be addressed to the public prosecutor. The prosecutor shall examine the motion and give a written answer to the complainant. If the prosecutor ascertains that the decision is contrary to the law he will file a protest with the issuing authority. The authority may either cancel the decision or replace it with one which is in compliance with the law. In Germany, the superior police organ deals with complaints concerning the way a police officer performs his/her duties. If charges are laid that an officer has committed an offense which can only be committed by a public official (bribery, corruption, assault in office, prosecution of innocent persons), the state attorney will be entitled to investigate the case. Prior investigations are carried out by detectives (criminal investigation police). At the moment, attempts are being made in Germany to create an independent external body to investigate such complaints. Several models are being considered, including the setting up of an Ombudsman. In England, the 1984 Police and Criminal Evidence Act established an independent Police Complaints Authority. The police chief of an area has to refer any case to the Police Complaints Authority which involves death or serious injury or which is specified in regulations issued by the Home Secretary. The police chief has the discretion to refer to the Complaints Authority any other complaint which he thinks appropriate, including grave or exceptional cases and those where a member of a police force may have committed a criminal offense or behaved contrary to police discipline. The Police Complaints Authority acts in a supervisory capacity; it does not have an investigative role. Investigations are carried out by police officers. In recent years, several other options have been proposed: a number of senior police officers have supported the setting up of an independent investigatory body;
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others have advocated the establishment of a proactive special police unit tasked with complaint investigation; others have been more vocal, expressing their belief that civilian oversight is counterproductive and only police officers have the technical knowledge and investigatory skills to investigate complaints against fellow officers. It is also worth noting that the Police Federation, the officers’ staff association (from constables to chief inspectors), favor a fully independent investigation system. Theoretically, complaints against police conduct in Yugoslavia can be dealt with by relevant parliamentary bodies and by the judiciary in the same way as all other complaints. The parliamentary committees are not independent bodies, however, nor have they a mandate to deal with public complaints against the police. In 1997, two bodies were set up in this connection: the Council on Security Matters (headed by the President) and the Parliamentary Committee for the Control of State Security. However, they may be perceived as another form of political control rather than as a genuine means of civilian supervision.
2.5 Disciplinary and Criminal Procedures against Police Officers Legal provisions remain no more than words if they are not implemented through suitable mechanisms and procedures, as well as through appropriate sanctions. Police officers committing offenses on their own initiative is obviously the most frequent form of police abuse. Generally, such offenses affect members of the public, resulting in individual or group victims. Therefore, the liability of offending police officers, and of the police as an institution, is the most significant test when analyzing compliance with international human rights legislation. Appropriate remedies for human rights violations are considered to be one of the most important guarantees that in future potential offenders will refrain from committing such violations. On the other hand, police liability seems to be a serious test with respect to community accountability. Constitutional provisions in this respect would be most welcome as some sort of message communicating the importance of the issue. A brief examination of the legal framework of the countries analyzed in this paper shows that, with minor exceptions, their fundamental laws do not tackle this. In Bulgaria, disciplinary proceedings can be initiated for violation of discipline, misdemeanors, or other offenses if the prosecutor refuses to bring charges against the individual police officer 62
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concerned. Disciplinary sanctions are taken by a superior officer based on the findings of an investigation. Usually, disciplinary sanctions are implemented for violations of internal rules and discipline, not for violations of the rights of third parties. Such measures may also be taken for unlawful business activities, contact with persons with a criminal record, or harming the reputation of the police. With the exception of a disciplinary dismissal, if a police employee is punished he has no right of appeal to an independent court. Whenever police misconduct qualifies as a criminal offense, a complaint can be filed with the prosecutor. Police employees are investigated, prosecuted, and tried by separate military investigators, military prosecutors, and military courts. Between 1993 and 1995 this system was dissolved, but it has been reintroduced on the grounds that military prosecutors and judges have better knowledge and experience with respect to military and police rules. In Bulgaria, there are Military Prosecutor’s Offices and a separate body for military investigation alongside the Military Regional Courts and the Military Department of the Supreme Court. Experience has shown that in some regions the military prosecutors and judges have developed a corporate loyalty which biases them in favor of police. They do not carry out a proper investigation and do not prosecute in cases of alleged police violations. In the Czech Republic a policeman failing to meet his basic obligations is not committing a crime, but a disciplinary offense which is dealt with by his superior, who has disciplinary powers. The sanctions are a written reprimand, docked wages (up to 15 percent for a maximum of three months), reduction in rank by one level for a maximum of one year, suspension, or a fine. More serious unlawful acts by policemen may be qualified as crimes or abuses of authority by a public agent in concurrence with a crime, for which a policeman may be punished by court, and even by imprisonment. In Hungary, investigation of accused police officers is the task of the special units of the Prosecution Service. Military felonies are to be investigated by the Military Prosecution Service and misdemeanors by superior officers. Evidence on that the police violated the law is a precondition in such cases, but this requirement raises two issues. Police compliance with the law usually depends on factors beyond the knowledge of an outsider. The lawfulness of many measures may be decided only by taking into consideration the specific tasks of the officer involved, but the regulations and orders determining those tasks are mostly un63
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available to the public. The other point is that the high rate of rejection of prosecutions against the police is attributed by prosecutors to the practice of experienced criminals accusing the police of ill-treatment or violent interrogation in order to explain why they changed their statements in the various stages of a trial. In Poland, disciplinary proceedings are regulated by the Law on the Police, while criminal procedures are regulated by the provisions of the Code of Criminal Procedure applicable to all citizens. Criminal proceedings against police officers are identical to those against any citizen; however, during the investigation and the trial police officers are either suspended or dismissed from service. In the Romanian system, if a complaint is addressed to a police officer’s superior, other police officers are appointed by the General Inspector to investigate their colleague. This is a practice which has raised doubts about the impartiality of the investigation. Assuming that the investigation is properly conducted, the investigating officer can only present his findings and conclusions to his superiors, who have full decision-making powers. The punishment is only of an administrative nature: oral or written reprimands, transfer to another police section, temporary suspension. The most serious is dismissal from the police force, a sanction which the police officer, due to his military status, cannot challenge in the courts. If, in the course of a disciplinary investigation, the accused police officer is found guilty of a serious offense, the case must immediately be referred to the Military Prosecutor’s Office. A police officer accused of committing a crime would always be investigated by a military prosecutor and eventually his case would be examined by a military court. As a general rule, when accused of committing a crime, a police officer, unlike a civilian, is not arrested and, although the penal code has a large number of crimes that may be committed by police officers in connection with their duties, the general accusation under which they are sent before the military court is ‘abusive conduct’, punishable by a term in prison or a fine. The latter is rather popular with military courts although it is very rarely used by civilian courts. Two aspects must be emphasized when discussing the criminal liability of police officers. The first concerns the burden of proof. Of course, police officers, like all other persons, enjoy the presumption of innocence. The problem is that victims of police abuse find it almost impossible to prove their case, since such abuses generally take place in police custody and most often the only witnesses are other police officers who, as a general rule, put corporate loyalty before justice. With the exception of deaths, no 64
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medical records are kept relating to injuries incurred in police custody. The other relevant consideration is the conviction of police offenders. Experience shows that prison terms for police offenders are much shorter than for civilians, even for much more serious crimes. In Slovakia, the liability of members of the Police Corps is governed by the Act on Service Relations. Disciplinary measures against police officers include: a written reprimand, docked wages (up to 15 percent for a maximum of three months), reduction in rank by one level for a maximum of one year, and prohibition from particular duties. The Slovakian courts are not allowed to examine orders given by the armed forces and armed corps officers, or decisions of administrative authorities concerning disciplinary penalties imposed on members of the armed forces and the armed corps, unless such decisions concern the restriction of personal liberty or imply termination of service. If a police officer commits a criminal offense he/she is liable under Slovakian penal law. But police officers benefit from the protection reserved for public officials and therefore their conduct must come under the category of the abuse of powers by a public official or of negligence on the part of a public official. In Germany, a police officer has exactly the same legal rights as an ordinary citizen in the course of criminal law investigations. In the British system there are special regulations for investigating breaches of police discipline. The disciplinary code punishes offenses such as discreditable conduct, failure to obey lawful orders, racially discriminatory behavior, and so on. Offenses against the code are investigated internally at disciplinary hearings. The burden of proof is similar to that in criminal trials, which means that a police officer’s guilt must be proved beyond reasonable doubt and not on the balance of probabilities as in civil proceedings. If found guilty, punishment may range from a reprimand to dismissal, depending on the seriousness of the offense. The police are accountable to the criminal law and where officers have allegedly committed a criminal offense they may be prosecuted. Recent cases of miscarriages of justice and assaults have led to extensive inquiries into police conduct and criminal proceedings have been taken against individual police officers. Under Yugoslav law, minor offenses against disciplinary rules are investigated by the immediate superior and the decision is taken by the ‘competent superior’. According to the Law of 1991 on Internal Affairs there are 15 serious offenses. In these cases, preliminary investigations are carried out by the immediate superior and the disciplinary investigator. Disciplinary proceedings 65
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are initiated by the disciplinary prosecutor at the request of the competent superior. The Disciplinary Board decides on punishments in the first instance and the appeals are dealt with by the Higher Disciplinary Board.
2.6 Civil Liability Apart from the criminal liability of police officers as individuals, the civil liability of both police officers and the police as an institution is another remedy for police misconduct. In this case, the approaches of individual countries are more complicated, depending not only on the law, but also to a large extent on the legal culture. In Bulgaria, civil liability for official misconduct can be both individual and institutional. Under Bulgarian law, civil liability can be for both pecuniary and non-pecuniary damages (Obligation and Contracts Act, sections 45–55 and Liability of the State for Damages to Citizens Act). Non-pecuniary damages are granted for the pain and suffering caused by the illegal conduct. Claims for damages are more often raised within the criminal procedure against individual perpetrators and much less in independent civil cases. The explanation resides mainly in the fact that there is no tradition of suing the police, as under the previous regime— although this might have been technically possible—it was not politically feasible. On the other hand, there is a strong tendency to over-rely on the criminal law, in respect of which the prosecutor has the leading role and civil claims are simply attached to the criminal trial, although experience has shown how difficult it is to prosecute a police officer for a criminal offense. In addition, there are a number of unresolved legal issues. Article 7 of the Bulgarian Constitution provides that the State shall be liable for any illegal actions of its employees. The rule is further extended in the Liability of the State for Damages to Citizens Act which provides for a special procedure under which the plaintiff is exempt from court fees. In such cases the burden of proof is with the plaintiff who must prove the illegal act or omission by the police, the damages, and the causal link between the two. The Ministry of the Interior argues that the police should not be liable under these provisions because police activities are not ‘administrative activities’. So far, the Bulgarian courts disagree, but the Supreme Court has not had a chance to rule on this matter. Typical cases of civil damages for police misconduct are those related to illegal use of force, illegal deprivation of liberty, illegal searches and seizures. 66
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Under Hungarian law, civil liability for damages caused by criminal offenses committed by police officers is possible. In addition, there are special rules on compensation for the detention of those who turn out to be innocent, even if the deprivation of liberty was lawful, based on reasonable suspicion and further conditions determined by law. In Romania, it is possible in principle for a police officer to be held liable under the civil law for unlawful activities—criminal or otherwise—resulting in pecuniary or non-pecuniary damages. But the law which may serve as the legal basis for such cases is the Civil Code of 1864, with its general provisions holding responsible the person whose behavior caused the damage and the institution in whose name the person acted. In practice, two aspects turn out to be very important when trying to apply this general rule. First, the courts are very reluctant to apply these provisions when police officers are the accused and the general perception is that, in fact, police officers are not responsible for their behavior under civil law. The absence of a legal culture under the Communist regime still has consequences today. Secondly, victims who want to sue under the civil law for pecuniary or non-pecuniary damages must pay a court fee which amounts to 10 percent of the sum claimed. This means either that the victim must pay a very high fee—which is difficult for victims of police abuses, who are generally poor—or that the compensation claimed must be symbolic, but in this case the law suit loses its significance. Rather, the victims expect to see first a penal sanction and only afterwards would they ask for a financial remedy as civil claims in a penal case are exempt from fees. New laws with special and clear provisions on civil liability have been demanded, but so far no intention to adopt them has been indicated. According to the Slovak Act on the Police Corps, the State assumes liability for the actions of the Police Corps towards a person who has suffered damages due to a police investigation. The exception is in cases where the damage was caused by the legitimate action of a police officer or as a consequence of the unlawful conduct of the person claiming to be the victim. Under German law, the police—as an institution—are liable for damages caused by unlawful actions. Depending on the degree of the damage and the severity of the police officer’s action, he/she can also be made liable. In England and Wales, the police may also be liable for damages in the civil courts for torts (private or civil wrongs) in exactly the same way as other individuals or organizations. Accord-
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ing to the Police Act, the Chief Constables are jointly liable with the individual for the wrongful actions of their officers. It is interesting to note that during the 1990s there has been an increasing trend in Britain towards civil litigation against the police. Redress under the civil law is increasingly being resorted to, and police forces have lost a number of cases with much media coverage in the past two years. Such cases force the police to reconsider their training programs with particular regard to their ethical content. This illustrates that the civil law is a vital source of external accountability and can be instrumental in leading to changes at the levels of policy, procedure, and training. The Yugoslav Law on Internal Affairs provides for the compensation of individuals who have been groundlessly arrested or kept in custody beyond legal limits. There are also constitutional provisions on the obligation of the State to compensate damages caused by the unlawful actions of its organs.
3. Conclusions In recent decades, international institutions such as the Council of Europe and the United Nations have developed detailed rules on human rights and police actions. At the same time, the European Union, which initially was not concerned with human rights, has developed legal rules and procedures in this regard. For the first time, the Maastricht Treaty provided that “The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law, principles which are common to the Member States”. At the same time, a third pillar has been added, on cooperation in the field of justice and home affairs. The Treaty defines as “matters of common interest: asylum policy, the crossing of the external borders of the Union, immigration policy, combating drug addiction, combating fraud on an international scale, judicial cooperation in civil and criminal matters, customs cooperation, police cooperation for the purposes of preventing and combating terrorism, drug trafficking and other serious forms of international crime”. It specifically mentions that these matters “shall be dealt with in compliance with the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Convention relating to the Status of Refugees, and having regard to the protection afforded by Member States to persons persecuted on political grounds”. 68
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Developing this pillar, the Treaty of Amsterdam guarantees that judicial cooperation in criminal matters shall include, among other things, “progressively adopting measures establishing minimum rules of a European penal law”. It is true that the Treaty also mentions that “the Court of Justice shall have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law enforcement services of a Member State or the exercise of the responsibilities incumbent upon a Member State with regard to the maintenance of law and order and the safeguarding of internal security”. But at the same time the Treaty declares that the “Court of Justice shall have jurisdiction to review the legality of framework decisions and decisions in actions brought by a Member State or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application or misuse of powers” (Article K.7 para 5 and 6). This means that the European Union Member States, as well as the countries seeking accession, must review both their legislation and practice in order to comply with EU requirements in the field of human rights protection. As the police are one of the most important agencies of any country exercising powers which may easily be abused, it should be a basic requirement to regulate the limits of policing in a country’s fundamental laws. A number of measures would seem essential to the democratic development of the countries of Central and Eastern Europe: the demilitarization, decentralization, and rendering accountable of the police.
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The Police in the Constitutional Framework: The Limits of Policing Andrzej Rzeplinski
This essay is an overview of the extent to which the regulations governing the police forces of the Central and Eastern European countries participating in the Hungarian Helsinki Committee’s ‘Police in Transition’ project meet European standards with regard to the protection of privacy.
1. Constitutional Mandate of the Police First, we shall take a close look at the constitutional mandate of the police, since this is often used to justify a number of restrictions of the citizen’s right to privacy. 1.1 ‘Where Are We Coming from?’ I would like to point to an obvious fact, although one which is seldom and only reluctantly raised in Central and Eastern Europe. In 2000—that is, nine or ten years after the fall of Communism—a considerable number of serving police officers are persons selected and trained under the Communist system. This is particularly true with respect to commissioned officers, that is, the people who are now in charge of police forces in Central and Eastern Europe. Most of these ‘old–new’ officers, especially in countries on the point of joining NATO (or which have already done so) and the European Union, seem to understand their position and that of the police force in the new constitutional order. Yet the past and the habits developed under Communism cannot be erased from their memory. If we ignore this fact, we will never be able to understand the substantial inheritance of the previous period.
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The main manifestation of this inheritance is people’s expectation that the state bureaucracy will satisfy all their basic needs, and an acceptance of extensive interference with fundamental liberties by the police in return for the mythologized feeling of absolute safety allegedly characteristic of Communism. This attitude is also present in some circles of the intelligentsia: for example, in late January 1999, at a meeting of the International Lawyers Commission’s Polish Section dealing with the situation of the judiciary, a Justice of the Supreme Court seemed to relish talking about “Our Mother Communism”, despite the fact that he himself had not been a mere mouthpiece of the Communist Party. Another participant, a professor of law, defended judges who had once imposed severe penalties in political cases, arguing that the law had permitted such penalties, and that the judges had issued the sentences in accordance with their conscience. The exact date of the turning point with respect to the social perception of the police would be difficult to identify. Was it the day after the first free elections? Or the day after the appointment of a civilian Minister of the Interior; the day after the adoption of a new Police Law and the change of the force’s name from ‘Militia’ to ‘Police’; the day after the country’s admission to Interpol; the day after the promotion to officer rank of the first Police Academy graduates whose training was based entirely on the new–old curricula? Perhaps it might have been the day after the activists of human rights NGOs were permitted to enter and monitor police jails? None of these dates could serve as the turning point on its own, but they have all contributed to a new image of the police, one that is closer to standards associated with ‘the rule of law’. In Johnson v. United States, which concerned the limits of the police’s discretionary power, Justice Robert H. Jackson wrote the following majority opinion: “One of the most fundamental distinctions between our form of government [and that of a policestate is that our] officers are under the law, [while in a] policestate … they are the law”. 1 The US Supreme Court wanted the judgment of policemen, no matter how reasonable, to be subject to review by a judge, who would determine whether a warrant could be issued before a search could take place. Unfortunately, the police mandate in the new democracies is still partly rooted in the Newspeak of the previous regime, which corrupted language and permitted the Militia to call contempt for fundamental human rights and freedoms “the maximum satisfaction of ever growing human needs, also in the area of state security, and public safety and order”. 2 The individual’s legal status, 72
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rights, and duties were fluid and subject to arbitrary interpretation, depending on the current needs of the so-called ‘class struggle’. In the hierarchy of principles that governed the organization of communist police forces, the ‘leading role of the Party’ always came before the ‘rule of law’. This meant that a Party order had more weight than a legal provision. So-called ‘socialist scholars’ specializing in the militia and the security services all agreed that since the “agencies of the Interior exist to protect the interests of the state and the citizens, it would be wrong to excessively restrict their activity in consequence of a misinterpretation of the extent of civil rights and liberties”. 3 The situation is more difficult in societies that have no experience whatever of a state ruled by law, not even in pre-communist days. In April 1993, lecturing on human rights under the auspices of the Council of Europe to high-ranking officers of the Albanian police in Tirana, it became apparent to me that they all believed that, since the European Convention on Human Rights had just been translated into Albanian, and the Communist Party was no longer in power, they [the officers] should be fully prepared to observe all human rights standards developed under that system. One year later, I received a similar impression in Moldova. Closer to reality, however, was the view of a deputy chief prosecutor in St. Petersburg who told me in December 1996, during my attempt to negotiate the release of Alexander Nikitin from FSB prison, 4 that the European Convention on Human Rights, though recently ratified by Russia, posed a threat to the safety of citizens and the integrity of the country. I handed him the Russian text of the Convention and asked him to show me a provision permitting a person to kill or steal, or which relieved an offender of criminal responsibility. The prosecutor was surprised to find that the Convention actually contained none of the provisions which he had firmly believed were there.
1.2 The Police Mandate as Seen by the International Community The most concise formulation of this mandate is contained in Article 1 of the United Nations Code of Conduct for Law Enforcement Officials (1979) which states that “Law enforcement officials shall at all times fulfill the duty imposed upon them by the law”. In doing so they shall always serve the community and protect all persons against illegal acts. While serving the community and protecting citizens, policemen “shall respect and protect 73
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human dignity and maintain and uphold the human rights of all persons”. The Council of Europe Declaration on the Police (1979) defines the police mandate in very similar terms. The Declaration claims that it is a particularly important duty of any police officer to oppose “all acts of corruption”: Article 1.1. of the Declaration says that the police are established as a uniformed and armed formation serving society, preserving public safety and order. This formulation of the mandate serves to prevent a police officer in a state under the rule of law, who almost every day must face several difficult and/or dangerous and thus stressing situations, from adopting the ‘warrior’ approach, instead of playing his due role as the ‘servant’ of the law. 1.3 The Police Mandate in the Legal Systems of Project Participants As part of the executive, the police are seldom mentioned in constitutions. If at all, it is rather police officers who are mentioned, or rather the restrictions imposed on them by the basic law. Thus, the Polish Constitution of 1997 prohibits police officers (as well as judges, prosecutors, civil servants, and professional soldiers) from holding seats in the Parliament (Article 103.2). This is the sole mention of this professional group. The Constitution of Hungary (1989) says that “the fundamental duty of the Police shall be to protect public safety and internal order” (Article 40/A(2)). In Romania, the Constitution (1991) again refers to the police once, providing that it should be “exclusively subordinated to the will of the people” and to “constitutional democracy” (Article 117, para. 1 and 3). There are several references to police officers in the Constitution of Yugoslavia: Article 42 prohibits them (along with other specified civil and military personnel) from joining trade unions or political parties. Article 57 deprives them of the right to strike. Not all the states participating in the ‘Police in Transition’ project have adopted separate laws dealing with police and police officers. In some cases, the issue is ‘diluted’ in a law on the Ministry of the Interior (Bulgaria, Croatia), or on the general competencies of the Government or public administration (Serbia, Montenegro). Sometimes, the Law on the Police reserves the use of the name ‘police’ to the police force (Poland). How are the basic duties of the police defined in national laws? The ‘Police in Transition’ CD-ROM (see Introduction to the present volume) clearly indicates that in some countries the police are a unified formation, performing practically all tasks in the area of 74
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crime control and prevention, public order, and supervision of people’s movements (Bulgaria, Croatia). Elsewhere (Poland), some police functions are performed by civilian public administration or local government agencies, as well as by other agencies independent of the police. The latter may be subordinate to the Minister of the Interior or to several different departments (for example, to the Department of the Interior and the Prime Minister, or to the Defense Department and the Department of the Interior). If we consider just the first two statutory functions of the police, police laws or other laws pertaining to the force show what the lawmakers see as the basic values to be protected. The values that are most frequently mentioned in first place are either public security and order (for example, Croatia, Hungary, Yugoslavia), or protection of individuals and their rights (for example, Poland, Romania, Slovakia). The list of functions performed by police forces in the countries of the ‘Police in Transition’ project is quite long: • protection of the established order (Croatia, Hungary, Romania, Yugoslavia); • protection of the life of individuals and property (Croatia, Hungary, Poland, Romania, Slovakia, Yugoslavia); • assistance to all in the exercising of their rights (Bulgaria); protecting, helping, and reassuring the community (UK); • protection of public safety and order (Bulgaria, Hungary, Poland, Romania, Slovakia, UK, Yugoslavia); • securing peace in public places (Bulgaria, Croatia, Hungary, Poland, Romania, Slovakia, Yugoslavia); • supervision of foreigners (Bulgaria, Croatia, Hungary, Poland, Romania, Yugoslavia); • protection of state borders (Croatia, Slovakia, Yugoslavia); • issuing of personal ID cards, international passports (Bulgaria, Romania, Yugoslavia); • issuing firearms and arms trade licenses (Bulgaria, Poland, Yugoslavia); • prevention of crime (Croatia, Bulgaria, Hungary, Romania, Slovakia, UK, Yugoslavia), also in cooperation with public organizations and NGOs (Poland); • protection of VIPs (Croatia, Slovakia); • detection of crimes and prosecution of perpetrators of petty offenses (Bulgaria, Croatia, Hungary, Poland, Romania, Slovakia, UK, Yugoslavia); • pre-trial detention (Romania); 75
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• arresting troublemakers (alcoholics and drug users: Bulgaria and Poland), mentally ill persons (Bulgaria); • supervision of municipal and private guards (Hungary, Poland); • international cooperation with foreign police forces (Poland); • being open to well-founded criticism with a willingness to change (UK); • performing its duties with respect for human dignity and human rights (Czech Republic, Poland); with respect for democracy, humanism, and ethics (Slovakia); upholding the law fairly and firmly and performing its duties with integrity, common sense, and sound judgment (UK). The police should evoke respect, but the public should not fear them: quite the contrary, police officers and the institution they serve must strive to reduce the fears of the public.
2. The Police and the Protection of Privacy The right to privacy is universally protected in the legal systems of the participants of the project. After Warren and Brandeis, it is commonly defined as “the right to be let alone”. 5 There are three ways in which the police may legally (or illegally) interfere with the right to privacy: • search and seizure of private premises; • interception of communications; • access to personal files and documents. • 2.1 European Standards Between 1977 (Klass case) and 1998 (Lambert case), the European Court of Human Rights developed standards regulating the limits on police powers in respect of the right to privacy, especially the interception of communications and access to personal files and documents. As a result, in order to be consistent with Article 8, paragraph 1 of the European Convention on Human Rights, police interfer76
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ence with a person’s private life must be in accordance with existing domestic law (Malone, 1984). That law must be of sufficient: • Accessibility, whether written or unwritten. Citizens must have full access to the texts of all laws. “The ‘law’ itself, as opposed to accompanying administrative practice, should define the circumstances in which and the conditions under which a public authority may interfere with the exercise of the protected rights” (Malone, para. 68) • Transparency. Citizens must be able to calculate, if need be with legal advice, the consequences of any action. “The law must be sufficiently clear in its terms to give citizens an indication of the conditions in which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to privacy” (Malone, para. 67). • Quality. It must adequately and effectively safeguard against potential abuse. The law must follow the principle of the rule of law, as explicitly stated in the Preamble of the Convention. This means that there must be a remedy in domestic law against the arbitrary interference of public authorities with the secrecy of correspondence and privacy. “If the use of secret means of surveillance were officially ordered and no remedy were provided against such orders, the contents of Article 8 would be nothing but fiction. In this situation, an individual might receive treatment inconsistent with Article 8 or even be deprived of the right guarantied by that provision without even being aware of the fact—and thus without being capable of using the remedy at the domestic or international level before the Convention organs” (Klass 1977, para. 36). Thirteen years later, the Court issued a reminder that “tapping and other forms of interception of telephone conversations constitute a serious interference with private life and correspondence and must accordingly be based on a ‘law’ that is particularly precise. It is essential to have clear, detailed rules on the subject, especially as the technology available is becoming more and more sophisticated” (Kruslin 1990, para. 33; Huvig 1990, para. 32). The Court stated in particular that legal police interference with privacy must: • name the offenses which may give rise to surveillance (Huvig/Kruslin); 77
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• be restricted to cases where factual indications for suspecting a person of involvement in a serious crime already exist through other means (Klass); • be ordered only on written application, giving reasons, by a specified high-ranking officer (Klass); • be carried out only under a warrant from a non-executive branch or body, preferably a judge (Klass); • set a maximum time limit on the validity of the warrant (Huvig/Kruslin); • include a procedure for summarizing reports containing intercepted conversations (Huvig/Kruslin); • include precautions for the communication of intercepted material between different authorities (Huvig/Kruslin); • set the circumstances in which recordings may or must be destroyed (Huvig); • describe what should happen to tapes/transcripts should the accused be acquitted (Huvig); A further condition of the legality of police interference in privacy is that it has to be necessary in a democratic society. It is acceptable “only so far as [it] is strictly necessary for safeguarding democratic institutions” (Klass), and “under exceptional conditions, necessary in a democratic society in the interest of national security and/or for the prevention of disorder or crime” (Klass). In an expanded form, the Court summarized the above principles once again in the cases of Halford (1997) and Kopp (1998), stating: Article 8, para. 2 (art. 8–2) further provides that any interference by a public authority with an individual’s right to privacy and private correspondence must be “in accordance with the law”. According to the Court’s well-established case-law, this expression not only necessitates compliance with domestic law, but also relates to the quality of that law, requiring it to be compatible with the rule of law. In the context of secret measures of surveillance or interception of communications by public authorities, because of the lack of public scrutiny and the risk of misuse of power, the domestic law must provide some protection to the individual against arbitrary interference with Article 8 rights (art. 8). Thus, the domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in and conditions on which public authorities are empowered to resort to any such secret measures (Halford, para. 49). 78
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In the Kopp case the Court said the following: “The Court by no means seeks to minimize the value of some of the safeguards built into the law, such as the requirement at the relevant stage of the proceedings that the prosecuting authorities’ telephonetapping order must be approved by the President of the Indictment Division, who is an independent judge, or the fact that the applicant was officially informed that his telephone calls had been intercepted” (Kopp, para. 72). There is no doubt that police forces, many politicians, and a large part of the public are less keen that these standards be upheld. They want to see only the good side of the police invasion of privacy, that is, its potential benefits in terms of fighting organized crime and terrorism. The following concurring opinions of Judge Louis Edmond Pettiti in the Lambert and Kopp cases are directed at those who would like to overlook the potential danger such an approach poses for civil liberties: Intercepting telephone conversations is one of the most serious temptations for state authorities and one of the most harmful for democracies. Originally, reason of state or national security were put forward in the attempt to justify interceptions, particularly in the sphere of so-called administrative telephone tapping that is sometimes used to evade the rules governing judicial telephone tapping. Abuses, however, are becoming more and more unacceptable, taking the form of monitoring wholly private conversations on the pretext of spying on political entourages. In several member states the supervision systems set up to control the monitors have proved inadequate and defective. Will it be necessary in the future, in order to protect privacy, to require people to get into ‘bubbles’, in imitation of the practice of some embassies, in order to preclude any indiscretions? That would be to give in to Big Brother. (Lambert)
Judge Pettiti stressed this view with even greater force in his concurring opinion on the Kopp case: The legislation of numerous European states fails to comply with Article 8 of the Convention where telephone tapping is concerned. States use—or abuse—the concepts of official secrets and secrecy in the interests of national security. Where necessary, they distort the meaning and nature of that term. Some clarification of what these concepts mean is needed in order to refine and improve the system for the prevention of terrorism.
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The warnings of jurists and parliamentarians go back more than twenty years: the Schmelck Report in France, my report as a consultant to the Luxembourg parliament, the Government white paper in the UK and the Court’s Klass, Malone, Kruslin and Huvig judgments have all remained largely ineffective. The people running the relevant state services remain deaf to these injunctions and to a certain extent act with impunity. Apart from the specific problem, is this not a sign of the decadence of the democracies; does it not reveal to what extent the meaning of human dignity has been eroded? For this depressing trend states and individuals must share responsibility.
We must therefore be aware of the fact that, despite the above judgments, both criminal and security police—also in the established democracies—still tend largely to ignore, with politicians’ consent, some of standards of conduct. This is manifested by the European Court’s recent judgments in the Halford, Kopp, and Lambert cases. What is the situation in the new democracies from the viewpoint of these standards? 2.2 The Limitations on Police Powers of Search and Seizure Normally, a search warrant is required for the police to enter and search private premises. It should be issued by a judge (magistrate) or, during a preliminary investigation, by a public prosecutor (for example, Bulgaria, Germany, Poland). The authority issuing a warrant needs to be convinced that an offense has been committed; that what is sought is likely to be relevant admissible evidence; and that a warrant is necessary to gain access (UK). Domestic law demands the presence of two witnesses. Sometimes the presence of witnesses is required by the constitution (Croatia, Yugoslavia). If the police make a search under the warrant, they must stick to the terms of the warrant and only search for what it authorizes. The search may not continue after the police have found what they came to find or after it becomes clear that what they are looking for is not there. However, the police can seize anything that is covered by the warrant or is believed to be evidence of any offense. In England and Wales, for example, the discovery and seizure of drugs during a search on a warrant for stolen goods would be perfectly admissible in evidence. Romanian law has similar provisions, where illegally possessed objects or documents are also seized. This provision has been very much abused as it can also be interpreted as allowing seizure of objects for which the 80
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individual does not possess appropriate documents. Moreover, it establishes a presumption of illegal possession (which may result in criminal culpability), the possessor being required to prove his/her innocence. In all the countries involved in the ‘Police in Transition’ project the law prohibits searches and seizures with respect to members of the staff of diplomatic missions and consular offices, as well as other persons of equal status under statutes or international agreements and customs, if such persons are not citizens of the country in question. The law also prohibits searches and seizures with respect to other persons who enjoy diplomatic or consular immunity under statutes, international agreements, or generally recognized international customs. In cases of immediate danger the magistrate or public prosecutor may approve of the measure in a subsequent decision. Ignoring these rulings may result in the evidence being debarred, consequently it cannot be used in a court of law (for example, Germany, Poland). Secret search of private premises is possible with a judicial warrant, however, except in urgent cases when the chief of the investigative unit has the power to order it, while simultaneously applying for approval by a judge (for example, Hungary). The provisions on secret intelligence of the 1994 Law on the Police in Hungary go quite far. The text is as follows: With the consent of the prosecutor, in order to obtain information, the Police, on promising the dismissal or termination of the investigation, may enter into an agreement with the perpetrator of a criminal offense, if the interest of the enforcement of criminal law to be served by the agreement is higher than the interest attached to the criminal prosecution of the case by the state.
Of course, without even starting an investigation it is highly questionable whether one can identify a perpetrator of a criminal offense. In addition to human rights problems this provision challenges the right of the courts to decide upon guilt or innocence. Such a law raises serious questions as to compliance with elementary constitutional standards. In general, two classical legal principles are undermined: the separation of powers and the priority of human rights over the operational requirements of the state. The special plea bargaining provision is one example of the disregard of both the separation of powers and human rights (presumption of innocence, right of appeal). Laws, sometimes even basic laws (Romania), limit the time during which private premises may be searched. Searches can commence, for example, between 6:00 and 20:00 (as in Romania) or 81
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between 6:00 and 22:00 (as in Poland). Codes of criminal procedure usually specify, however, that a search begun between those hours may continue into the night: in other words, a search that starts at 21.59 may last all night. Furthermore, I know of no judicial decision ruling such a late beginning search illegal because it could have been started earlier. Any person can be searched without a warrant at a border checkpoint and in the border area. Border guards in Slovakia, for example, may carry out the search of a person, their luggage and means of transportation if there is a well-grounded suspicion that a criminal offense has been committed by a person crossing the state border or that there has been a transgression in connection with crossing the border. Romanian law allows the police “to check vehicles on the roads if a severe offense has been committed, or if there is good reason to suppose that the committing of an offense is imminent and the person or the goods sought are in the area”. As this sort of search is not mentioned in the Code of Criminal Procedure and as the Law on the Police does not mention anything about the search warrant or written consent of the suspect, this part of police activities may be left to the officer’s discretion. It must be mentioned that legal literature and jurisprudence have assimilated the ‘car’ to the ‘domicile’ which thus enjoy the same protection. However, searching the trunk of a car is common practice. In some countries (Poland, UK) domestic law creates, in addition to the power to stop and search, a procedure for establishing road checks to discover whether a vehicle is carrying a person who has committed a serious criminal offense, who has witnessed such an offense, or who is an escaped prisoner. In England and Wales, the road check must normally be authorized in advance by an officer of the rank of Superintendent or above. English law seems to have the most developed rules on search. The Police and Criminal Evidence Act provides the police with the power to stop and search, but not with the power to stop and question. The Act does, however, permit the police to stop someone and speak briefly to him before deciding whether to search him. Before stopping the person, the officer must have reasonable grounds for suspecting that he will find either stolen goods or other prohibited articles on him or in his vehicle. The concept of reasonable grounds means fairly strong suspicion with a concrete basis that could be evaluated by an impartial third person. If the person is actually searched, the officer must make a record of the fact.
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Objects that are used as items of evidence in the investigation can be seized and confiscated. Objects that are not handed to the police voluntarily are always confiscated (for example, Germany). Any object which is not needed as evidence must be returned immediately to the owner (for example, Poland). 2.3 The Regulation and External Control of Police Intelligence. Interception of Telecommunications and Other Surveillance Techniques Most intelligence activities do not require external authorization. The sole obstacle to even more intelligence operations being mounted than at present is the high cost: for example, to effectively shadow a suspect, 60 agents are necessary (20 agents per shift, three shifts in 24 hours). Usually, domestic legislation is characterized by double standards. On the one hand, the law seeks to comply with the basic law and international standards; typical in this respect is Bulgarian legislation where, according to Article 3 of the Law on Special Surveillance Methods, such measures shall be used “only for the prevention or disclosure of serious crimes and only if the information could not be obtained using other methods less detrimental to human rights”. On the other hand, we have the usual Catch 22 situation from the point of view of civil liberties. Electronic surveillance may be employed in “exceptional cases”, that is, when needed for the protection of national security. The secret and the regular police have a certain amount of discretion regarding application of the term ‘national security’, which is undefined in judicial decisions. This practice and its legality are outside external control. So-called ‘personal sources of information’ are still the most fruitful tools of police intelligence. In Central Europe, after the collapse of the old regimes in 1989–1990, every hundredth citizen turned out to be a security services informant. In some professions (for example, journalists, clergy) probably every tenth person was a collaborator with the political police. Every Communist Party member had an obligation to provide information about everything that could threaten the system. With the onset of transition, there was strong pressure not only towards the condemnation of such practices, but also towards the identification of collaborators, their discrediting, and the deprivation of some political rights. Those who opposed measures against informants used the following argument: public denunciation of the security service’s collaborators would deprive the police—and the new security police—of new personal sources of information. This 83
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would constitute a serious threat to police intelligence in the fight against petty and organized crime. The argument is false, however. For a variety of reasons, the police can always hope for ‘fresh blood’ of this kind. Whenever I ask a police officer in the region about this, part of the answer is: “you know, some people love to hurt others so much, especially those who are not clean themselves. I am not worried about any shortage of informants”. In some places, the registration of all police informants is required (UK). The names of police informants are among the best protected official secrets. Midway between a police informant and a witness, there is the ‘anonymous witness’. This is a new element in criminal proceedings introduced to prevent intimidation of witnesses by organized crime groups. The European Court of Human Rights has elaborated some rules in respect of this institution (the Lüdi, Kostovski, Doorson, and van Mechelen cases). Protection of the anonymity of some witnesses is also regulated by the Council of Europe’s Recommendation concerning the ‘Intimidation of witnesses and the rights of the defense’ (R [97] 13). The weakest point is often not the secrecy of the names of informants, but a lack of even the minimum general oversight by an external agency (for example, a parliamentary committee). Without such oversight no one can be sure that the police are using the informant only to fight crime, or how efficient and expensive the measure is. Some systems exist for the evaluation of intelligence obtained and for monitoring the handling of informants. The use of technical equipment for surveillance can also be closely monitored (UK). The materials obtained in the interception of telecommunications which do not constitute information confirming an offense are subject to immediate recorded destruction by a commission. No data are available, however, on the number of cases in which such destruction of materials was carried out, and on how much time passes between establishing that no offense has been committed in a given case and the destruction of materials. In Poland, no relevant information is provided either by the Parliamentary Committee for Administration and Internal Affairs (with respect to the Police) or by the Committee for Security Services. This failure to inform the public probably results from the Committees’ ignorance. External supervision of wiretapping is practically non-existent; it may always turn out that the case requires checking in the future or that it is advisable to wait for an unspecified period of time so as to be positive that the case should be closed. 84
The police in the Constitutional Framework: The Limits of Policing 2.4. The Procedure for Obtaining Surveillance Permission
The procedure for obtaining permission to undertake surveillance may be confidential (for example, Bulgaria) or published in an official journal (Poland). In the case of the operations or criminal investigations of the police, there is an ever-present obligation to get outside permission for the interception of communications or for a search. In the former case (operational activities), the permission is issued by the Prosecutor General (Poland), the Secretary of State (UK), a para-judicial body (Germany), a higher court (other countries), or the Chair of the Regional Court (Bulgaria). In Poland, the Police cannot ask the external agency directly; the motion should first be accepted by the Minister of the Interior, who then formally submits it to the Prosecutor General. Obtaining permission may be a long and complicated bureaucratic procedure. In any case of police surveillance in Poland the procedure is as follows: (i) the investigating officer sends a request to the provincial police commander; (ii) the commander forwards the request to the appropriate department of police headquarters; (iii) from the department the request goes to the Chief Commander; (iv) if the Chief Commander agrees, the investigating officer approaches the Minister of the Interior; (v) after the Minister’s approval the request goes to the Public Prosecutor General. This procedure no doubt encourages police officers to try to obtain information without permission, on occasion. In Poland, approval is not required in cases of controlled purchase and surveillance of trade in illegal articles. In the latter case, the Minister of the Interior “informs the Public Prosecutor General on an ongoing basis about actions carried out and their results”. The Prosecutor General may order that the surveillance of trade in illegal articles be dropped. If information about an offense is confirmed, the Minister of the Interior hands over to the Prosecutor General the materials gathered in the course of operations, together with a motion for the institution of criminal proceedings. In the latter case (criminal investigation), the permission is issued by a prosecutor (during preliminary investigation) or the court that tries the defendant. Surveillance permission is given for a specified period, usually 60 days, but it can be extended for a further four months (Bulgaria). In urgent cases, surveillance can start even without permission, but if permission is not granted within 24 hours (Bulgaria, Poland), it has to be terminated. 85
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There is no requirement that the fact of surveillance be reported to the individuals who were subject to surveillance (Bulgaria). There is also no statutory requirement for the authorities to publish statistics on the use of electronic surveillance (Bulgaria). 2.5 Sharing Secretly Gathered Information with Other Institutions In some countries of the region it would be too much to expect easy access to police intelligence on the part of other public agencies, including the security service. Due to the historical lack of mutual confidence and the inferior position of the militia compared to the security service in Communist Poland, for example, there have been complaints from the Office of State Protection concerning poor cooperation in the sharing of secret information. An additional factor here is the responsibility of both agencies for fighting organized crime; neither is ready to pass on any information to the other. Problems of unmonitored cooperation between police and national security agencies exist in other countries. One of the security agencies in Hungary, the Special Service for National Security, is a general background institution for all other agencies authorized to use secret intelligence, including the police. Based on written application, it provides—within the framework of the law— those organizations which have the appropriate legal powers with means and methods of secret data collection. The service also provides legally authorized organs with special technical equipment and materials for secret data collection. The most sensitive police and national security information is dealt with by the same organization using the same technical facilities. This does not necessarily mean confusing different procedures, but the possibility of exchanging data is clear. The Hungarian National Security Act (1995) does not establish legal barriers to such mutual movement of information. National security agencies are entitled—in the interest of fulfilling their tasks, in the absence of other special legal provisions, and with the identification of the purpose of the process—to acquire data, even those gathered secretly by the police, from any system of data processing. They are also authorized to look into such systems and the relevant documents. The Hungarian police law seems to offer the broadest scope with regard to police record keeping. Thus, persons who are the subject of secret intelligence do not have to be informed about the data collected about them, unless those data are used in a criminal 86
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proceeding as evidence. In addition to the police and organs of national security the following persons and agencies have right of access to police criminal data systems, including, among other things, secretly gathered information: members of organs exercising supervision over the police, civil servants of the Ministry of the Interior if authorized by the Minister, the Data Protection Ombudsman, and representatives of other organs authorized by law to acquire first-hand knowledge. A judge who issues a warrant for the use of secret methods of information gathering may, at any time, have access to the content of the files compiled in this way. Several other agencies have the right to obtain information needed for performing their duties from the police. Investigative agencies (Customs Service, Border Guard), the Prosecution Service, the courts, the Ministry of Foreign Affairs, and organs of defense administration may request data, defining the purpose of their use. Any other person or organization may be empowered to exercise the same right based on specific legal provisions. Personal data, including those produced by police intelligence, may be forwarded to foreign and international law enforcement agencies according to obligations accepted by Hungary or in the interest of the prosecution of criminal offenses, provided that data protection standards are respected. The Polish police law is more restrictive. The police can pass intelligence information only on the request of a public prosecutor or judge, and only when it is necessary for an already instituted criminal investigation, or when it is required in accordance with international agreements, or when keeping such information could threaten life or health. There is almost no legislation on information gathering and management and on data control in Bulgaria. There is no general legal duty of state to provide access to information, nor are there many legal guarantees for the protection of private information. What information the Government and, in particular, the Ministry of the Interior should or may release, or whether the information should or may be released, is considered to be a matter of government discretion—with the exception of cases involving state secrets. In the UK, the police are subject to the Data Protection Act in relation to all information that may serve to identify individuals. However, they are allowed to pass such information to other police officers and forces and to the National Criminal Intelligence Service, which has a statutory responsibility for maintaining a high level of intelligence. Protocols for information sharing are agreed at the top level between the Home Office and other relevant agencies. 87
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Notes
1 Johnson v. United States, 333 US 10 (1948). 2 E. Ura, ‘Prawne zagadnienia bezpieczeñstwa pañstwa’ [The legal issues of the security of the state] (Rzeszów: KAW, 1988), p. 110. 3 Ibid., p. 140. 4 Nikitin is a retired Soviet nuclear submarine officer who, in 1996, published a book on the dangers to the environment posed by a fleet of submarines stationed near Murmansk. He was accused of the disclosure of state secrets despite the fact that his book was based solely on materials already published in Russia, and that the right to knowledge concerning the state of the natural environment is recognized as a human right under the Russian Constitution. In February 1999, despite the lack of evidence, the proven police violations of Nikitin’s fundamental procedural rights, and the protests of his defenders, the Supreme Court of Russia handed the case back to the FSB for supplementary investigation. 5 C. Warren and L. D. Brandeis, ‘The Right to Privacy’, Harvard Law Review, No. 4 (1890): p. 193.
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Policing in Transition Countries Compared with Standards in the European Union: Hungary—Where Dreams Are Not Fulfilled Miklós Benke
This paper aims to compare the standards and practice of the police service of Hungary with EU standards and practice. The problem is twofold. We have to understand, first, what restrictions exist for police personnel; and secondly—and more importantly—how police-related legislation can violate citizens’ rights. The non-compliance of a number of provisions of police-related legislation with the EU acquis and the relevant international (primarily European) agreements could easily be proven by means of desktop research if one compares them with the Council of Europe Declaration on the Police or similar documents. It is more challenging, however, to follow how the police observe and protect the rights of citizens, especially those of more vulnerable groups, such as migrants or ethnic minorities. The most important pieces of legislation in this regard are Law 34 of 1994 on the Police, Law 43 of 1996 on the Service Regulations of Armed Bodies, and Law 1 of 1973 on the Code of Criminal Procedure, the modified version of which was supposed to come into force in 2001 (now postponed until 2003). The Constitution of Hungary determines the role of the police very briefly. Article 40/A, paragraph 2 sets forth that “the fundamental duty of the police shall be to protect public safety and internal order”. The detailed description of the role of the police can be found in the Law on the Police. The importance of the Law on the Police is underlined by the fact that a two-thirds majority vote is required when amendments or modifications are made. Even though the Law on the Police was drafted after the constitutional reform, it does not reflect the emphasis on human rights issues. Most of its provisions express the view that the efficiency of the police service has a higher priority than safeguarding individual rights. The Service Regulations Act devotes a whole chapter to listing restrictions on the fundamental rights of police officers. Although
Policing in Transition Countries Compared with Standards in the European Union: Hungary—Where Dreams Are Not Fulfilled
it stipulates that disproportionate harm should be avoided, it is questionable what kind of justification can be given for restricting the fundamental rights of citizens. The law states that the least possible damage should be caused and the fewest possible restrictions employed, but no guarantees are provided. The most important restrictions are as follows: Freedom to choose place of residence or stay: the place where officers carry out their duty is selected on the basis of the operational requirements of the force, but the interests of officers also have to be taken into consideration. An officer has to report to his superior if he intends to leave the place where he performs his duty. This is a clear violation of privacy since there are several ways (phone, pager) of calling officers if their services are urgently required. A trip across the border also has to be reported to a superior. Freedom of expression and political activities: the Hungarian Constitutional Court has ruled that the freedom of expression is of outstanding importance among basic rights. This right is not only of paramount importance for the individual exercising it, but also represents a major pillar of any democratic society. It follows that limitations on the freedom of expression must be exceptional. Defending general, abstract values such as public tranquility is not an acceptable reason to limit the freedom of expression of police officers. Police officers are not allowed to criticize orders or regulations issued by their superiors, while at the same time they have to report all instructions perceived as unlawful. Another restriction on the freedom of expression is that officers are not allowed to make any statement endangering the order and discipline of the force, or to express private opinions through the press concerning ongoing official proceedings. According to the Constitution (40B§) membership of political parties or engagement in political activity is not allowed for members of the armed forces. On the other hand, the Law on the Police (4§(3)a.) stipulates that the Minister of the Interior represents the police at Parliamentary sessions and in Cabinet. Consequently, the Minister expresses the summarized views of police officers in political debates, while the individual officer is excluded from taking part in open discussions. Right of assembly: the Service Regulations Act requires the prior permission of a competent superior as a precondition of any public event being organized on the premises of the armed forces. The wording of the Act does not interpret correctly what the geographical scope of implementation shall be and in fact the
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issue of such permission depends on the prior evaluation of speeches to be delivered and the activities planned for the event. Right of association: officers are obliged to report their membership or planned membership of any organization which is not linked to their profession. Their superior is allowed to prohibit such membership if it is perceived that the interest of the service would be endangered. Privacy issues: the Service Regulations Act of 1996 stipulates that all applicants to the police service have to lead an irreproachable way of life. This also applies to his/her close relatives and all persons living with the recruit. The applicant and all his relatives have to give their written consent so that the police can check compliance with the relevant standards. This covers the whole period of the applicant’s service. This provides unlimited access to the police officer’s private life. Since the term ‘irreproachable way of life’ is vague it allows a certain amount of arbitrariness on the part of police superiors. The Law on the Police contains a chapter on the general principles and rules of police operations. The very first statement in this section is that the police officer must obey the orders of his superior and must defend public safety and internal order, if necessary by sacrificing his life (11§). This contradicts constitutional principles and provisions. Human life and dignity are fundamental values and not even laws can restrict rights related to them. This requirement is not only unconstitutional but also morally unacceptable. These few examples clearly indicate that several provisions of police legislation do not comply with the Constitution and, as already mentioned, are not compatible with EU standards either. Resolution 690 of the Parliamentary Assembly of the Council of Europe lists several requirements which are clearly not met by the Hungarian police. If we look at the provisions of the Law on the Police, which is the fundamental source of police obligations and rights, the findings are even more alarming. Not only are the lives of police officers apparently not perceived as valuable in themselves, neither are those of persons with whom the police come into contact in the course of their duties. The rules regarding coercive measures stipulate that causing injury to or killing a person should be avoided—if possible. It follows that human life is not the highest value for the police service. Checking personal identity: the Law on the Police (29§) stipulates that, in the course of his duties, a police officer is allowed to check the identity of an individual if necessary. Since the conditions of 91
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an identity check are not laid down, it allows the police to check the identity of any person at any time without giving any reason. After the check has been completed the person concerned can ask the police officer to give a reason for the identity check, but the officer is entitled to refuse if the explanation could endanger public safety. The wording of this section of the Act allows police to harass citizens without any reason, and if their action is challenged they can always refer to the public safety clause. Hungarian citizens are obliged to carry ID cards or other documents; non-compliance with these provisions constitutes an offence. A more serious consequence of not having an ID card on public premises is that the police can detain those unable to present documents when requested to do so. The clothes or vehicle of the person concerned may also be searched. Members of ethnic minority groups are checked more frequently. If detention follows the ID checks fingerprints and photographs can be taken. This restriction of personal freedom can last until the identity of the individual is established. It is even more alarming that the police have the power to carry out general identity checks in public places. In order to apprehend and detain a criminal, or to prevent or stop an activity endangering public security, the head of the relevant police unit has the power to order the identification of all persons present in a public area, and search buildings, vehicles, or personal belongings. This is coordinated and concentrated police activity, in the course of which all or part of the area under the control of police authorities is sealed off and an identity check of all those found in the area is carried out. It means that the police have the power to question or search individuals who have committed no crime, but who are just in the wrong place at the wrong time. ID checks are regular sources of conflict, as police officers tend to select for ID checks people in respect of whom further action might be taken. It frequently happens that an ID check escalates into a verbal conflict, followed by a physical conflict, and by the use of force, coercive measures, and criminal proceedings. The other problem with ID checks is the lack of safeguards and legal remedies. The Law on the Police also allows officers to check all persons’ identities in a particular public place if the police chief decides to do so in order to apprehend a criminal or to prevent a crime. This clearly shows that these measures can be employed indiscriminately. Reports are not prepared after these measures, limiting the ability of the victims to turn to a court or to file a complaint.
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Data gathered during actions of this kind can be kept for two years, but another section (85 §) of the law does not allow the deletion of such data. The result is that such data are stored for an unlimited period. There is an unusual provision in the law which stipulates that any question posed by a police officer in the course of his duties must be answered by a citizen. There are no consequences if no answer is given, but needless to say this obligation can lead to serious miscarriages of justice. Warnings are not given before such questioning and data can be stored and used as evidence. Police measures restricting personal freedom: police measures restricting personal freedom, if not linked to adequate safeguards, allow the violation of fundamental human rights. Unfortunately, the Law on the Police does not provide adequate safeguards against the arbitrary actions of the police. What is even more disappointing is that the new provisions provide the police with more powers without any chance of judicial remedy. People can be detained without a court’s or a prosecutor’s approval; all that is required is that the police officer’s superior sign a form declaring that the measure was lawful. It is difficult to understand why the time period for the restriction of personal freedom has been extended by four hours, from eight to twelve hours. Research into short-term arrest has clearly shown that the extension of the time limit cannot be justified. The police use this measure frequently to sanction those who cannot be prosecuted otherwise. Of course, no organization runs perfectly, but where our fundamental rights are concerned we have to be very careful. It is worth mentioning that the provisions on the possible duration of detention were substantially closer to the constitutional requirements in the previous legislation than in the current law. The 1990 Decree, published by the Minister of the Interior of the last Communist government, provided that police had to decide promptly (at the latest within four hours, and in exceptional cases within eight hours) on release or arrest on special legal grounds. Section 33, paragraph 3 of the 1994 Law on the Police replaced the regulation with the following: The Police shall restrict personal freedom by public security detention only for the necessary period of time, but not exceeding eight hours. If the aim of the measure cannot be achieved, this time period may be prolonged once by four hours by the head of the police organ. The time period shall be calculated from the beginning of the application of the police measure. 93
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One apparent change is the extension of the possible duration of keeping persons in custody from a maximum of eight to twelve hours. There is no reference in the reasons attached to the Bill to what made it necessary to increase this time limit. There was no fact-finding study or discussion about possible effects prior to the declaration made by the Minister of the Interior concerning his intention to raise the upper limit of the duration of public security detention. Having learned about the plans of the Minister the head of the Police Section of the Ministry asked the Control Department to examine whether this was really needed to improve police efficiency. The conclusions of the report made it clear that there was no real problem with the time already at the disposal of law enforcement officers, apart from cases in which the persons concerned had to be transported to distant places. Of course, this difficulty could have been solved without general extension of the time for making a decision with a direct impact on personal liberty. Furthermore, professional arguments also supported shortening rather than prolonging the maximum duration of public security detention. Databases have been developed since the introduction of the new upper limit, and so police need less time to collect the information they need. A speedy process is also desirable because most cases of public security detention are or can be related to the detection of criminal offenses. The earlier police obtain either corroborative or excluding pieces of evidence, the better the chances of clearing up a case are. In sum, extension of the possible duration of public security detention has been made not only without acceptable reasoning, but against the real needs of constitutionality and professional efficiency. Only empty rhetoric concerning a “strong state with a strong police” supported the change. This conclusion is also confirmed by the wording of the passage of the law. As we have seen, previous legislation required prompt decision-making and prolongation was possible only under exceptional circumstances. All this suggests a certain pressure on police organs to deal with the matter as quickly as possible. Now the text emphasizes police needs without any reference to the human rights of the detainee. Practically speaking, the new legislation underpins an interpretation that, in contrast to the former provisions, the police do not now have to give priority to cases where the persons concerned are detained. Consequently, a preference for police operational requirements over human rights guarantees is clearly revealed in the new Law on the Police: the previous (‘totalitarian’) regulation proves to be more favorable from the point of view of constitutional rights. At the same time, 94
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no reasonable argument has been given to show how the new provisions will improve matters. Another important guarantee was similarly weakened by the 1994 Law on the Police. The Decree of 1990 (paragraph 158) required that the arresting police officer inform the person concerned about the reason for and place of detention. The new Law on the Police makes informing the arrested person dependent on his/her request. This is in clear contradiction of article 5, paragraph 2 of the European Convention on Human Rights, which states: “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”. As to the possible grounds for public security detention, the 1994 Law on the Police repeats the most important provisions of the Decree of 1990 while introducing, at the same time, some changes into the rules on the relevant conditions. Apprehension— as before—has to be followed by public security detention. There is no space for discretion concerning the implementation of the relevant provisions; they have to be applied if the conditions are fulfilled. According to section 33, paragraph 1, the following persons must be apprehended: (a) anyone caught in the act of committing a criminal offence with intent; (b) anyone against whom a warrant of arrest has been issued under a separate act or under an international treaty, and furthermore, whose apprehension has been ordered; (c) anyone whose arrest or pre-trial detention is ordered or for whom compulsory psychiatric treatment or observation of mental state is ordered; (d) anyone who has escaped from, or failed to return to a penal institution, or who has evaded compulsory treatment, observation, or correction; (e) anyone whose public security detention is ordered under a separate act. In addition to these mandatory cases, the Law on the Police describes other circumstances where a police officer may, but is not obliged to arrest and detain people “in the interests of public security”. These provisions, as determined by section 33, paragraph 2 of the Act, apply to anyone (a) who is unable or unwilling to prove identity in a reliable way upon the request of a police officer; (b) who may be suspected of committing a criminal offense; (c) from whom, in order to gain evidence of a criminal offense or infraction, it is necessary to take urine or a blood sample, or any other sample in a way not qualifying as a surgical operation; (d) who is evading parental supervision, guardianship, or institutional education; (e) who is violating the rules of probation if the police have competence under a separate act; (f) who carries on commit-
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ting an infraction despite an order to stop, or against whom proceedings can be promptly effected, or from whom objective evidence has to be taken or an object has to be seized in order to ensure its confiscation; (g) who is listed as missing. Apparent differences compared to previous legislation are misleading because practically all powers given by the 1990 Decree have been taken over into the new regulations. According to the wording, it is no longer possible to apprehend a person for committing a criminal offense by negligence. However, based on subparagraph b. of paragraph 2, anybody who is suspected of a criminal offense can be arrested and detained “in the interests of public security”. Thus, causes given by the former legislation have survived under more general headings. The same applies to further repealed provisions. Begging, for example, constitutes an infraction, therefore a beggar can be taken into public security detention without difficulty with reference to paragraph 2, subparagraph f. Indeed, the new Act widened the scope of possible reasons for deprivation of liberty. Especially questionable is the provision concerning the detention of those who may be suspected of committing a criminal offense. Here, again, there is an obvious contradiction with the European Convention on Human Rights. This international document—directly binding on Hungarian legal subjects—does not permit arrest on ‘pure’, but only upon reasonable suspicion. Reasonableness is a substantive requirement even if problems of interpretation may emerge (see Judgment of the European Court of Human Rights in Fox, Campbell and Hartley v. United Kingdom, 30 August 1990, No. 182, 13 E.H.R.R. 157). Another deviation from the strictly formulated exhaustive listing of possible causes for arrest in the Convention is the provision enabling police to take missing persons, if found, into custody. Disappearance in itself does not violate any law, and therefore should not lead to deprivation of liberty. Such a category, of course, is not among the cases laid down in article 5 of the European Convention on Human Rights. In addition to the 8 (+4) hours’ general public security detention there are special regulations providing for keeping persons in custody for a longer time without any intention of taking them before a judge. The Law on the Police itself empowers police to deprive people of their liberty for up to 24 hours if it is necessary to check their personal identity or in the interest of the person concerned (extreme drunkenness, danger to himself or to others). The maximum duration is 72 hours if a person who is on parole or on conditional release from a reformatory institution, and to
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whom probation rules apply, absconds or if there is high probability of his/her absconding. The Hungarian Helsinki Committee conducted police cell monitoring and research concerning practical implementation of the provisions on public security detention. The report noted that some facilities did not even satisfy the elementary requirements for human habitation. The police custody facilities of the town of Ajka, for example, were situated below ground without any heating or either natural or artificial light. This might be an extreme case but conditions of detention in general do not correspond to basic international or domestic requirements. The main legal requirements for using physical coercion in order to implement a police measure: according to section 19 of the Law on the Police, everybody has to comply with instructions given by a police officer in the implementation of the law. This means that obedience does not depend on the lawfulness of all aspects of police activities. However, accepting the authority of a police officer remains mainly a moral duty because means of coercion can be used exclusively to enforce a legally unquestionable measure. The application of such means must take place under the general and special conditions laid down by the Law on the Police or the Code of Conduct issued by the Minister of the Interior. Torture or cruel, inhuman, or degrading treatment are not only forbidden but police are under a general obligation to prevent such activities irrespective of the rank or position of any person engaging in them (section 16). The principle of proportionality has been weakened by the strong emphasis on effective enforcement. Section 15, paragraph 2 of the Law on the Police provides that police shall select the least harmful measure or means of coercion through which effective implementation can be ensured. Section 17 requires avoidance of causing injury or death by applying means of coercion. Another passage (section 61) prescribes that a person on whom coercive means are to be imposed should be warned before it is resorted to. Apart from using bodily force or handcuffs, only lawful selfdefense can justify the use of coercive means against children or visibly pregnant women. In addition to the general rules on direct enforcement, conditions are laid down for particular police activities related to coercive means (sections 47–60 of the Law on the Police). According to the Code of Conduct (section 52) the order of description to be followed here, reflecting the structure of the Law on the Police, is of normative significance. It means that more serious means may only be selected if the less harmful one proves unsuccessful or has no chance of being effective. Bodily force, for example, may be 97
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used to compel a person to act or to refrain from action. However, statements may never be extracted from individuals by coercion. Handcuffs may be put on somebody in order to prevent the handcuffed person from causing injury to himself, attacking others, or escaping. They can also be used to break the resistance of the person concerned. Similar reasons can justify application of a chemical or electrical (shocking) device, a truncheon, the flat of a sword, or other objects. These things may also be acceptable to avert acts against property. Police dogs are also regarded as coercive tools, to be used in various ways, depending on the circumstances. A muzzled dog on a leash or unleashed equates with bodily force. Animals without muzzles but on a leash may be appropriate for the dispersal of crowds, while unleashed service dogs without muzzles are allowed exclusively to apprehend someone suspected of a felony or in cases where deadly force would also be allowed. Road blocks may be constructed without endangering traffic safety in order to stop a fleeing suspect. Special rules cover the actions of police officers and cases in which they may be invoked. Methods of crowd dispersal are also regulated by the Law on the Police. Problems connected to the use of firearms will be discussed separately. The system of reporting and overseeing the application of coercive means: the Law on the Police requires the reporting of the application of coercive means to a superior. Use of firearms should be immediately reported, regardless of the consequences (section 62). More detailed regulations concerning communication and supervision in cases of using force can be found in the Code of Conduct. Section 51 obliges the service superior of the officer applying coercive means to examine the necessity and lawfulness of the action with regard to the requirement of proportionality. In order to reach a conclusion he will hear those who suffered injuries in the application of coercive means, together with other persons present. If necessary, he will also clear up contradictions perceived in the report of the police officer. The superior is expected to make a report on his findings. If these show that the necessary legal conditions permitting coercive means were not present, he will initiate proceedings, depending on the seriousness of the case against the officer.
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Essentially the same, though more detailed regulations of the Code of Conduct (sections 65–66) prescribe the procedure to be followed in case of using firearms. The inquiry has to be finished within three days and provisions of the Code on Administrative Procedure of 1957 have to be implemented. The head of the police unit will decide on the lawfulness and professional correctness of the police intervention. Remedies against the conclusions of the chief are open, including judicial review. No institutionalized forum of external supervision exists, although appropriately authorized organs (for example, Prosecution Service, Ombudsman) may exercise their powers in these cases. The use of firearms by the police: the Hungarian Constitution complies with the universal standards referred to, stipulating in article 54, paragraph 1: “In the Hungarian Republic every human being has an inherent right to life and human dignity of which no one shall be arbitrarily deprived”. The Hungarian Constitutional Court has ruled that the death penalty is not compatible with a legal system based on the ultimate importance of human life and dignity. The Court reasoned as follows in its decision on the abolition of capital punishment: “Legal norms on the deprivation of life and human dignity by the death penalty not only restrict the essential substance of fundamental rights to life and human dignity, but also they permit the total and irreparable destruction of life and human dignity, as well as the right guaranteeing them. Therefore, the Court declares the relevant regulations unconstitutional and repeals them.” It was underlined in the opinion attached to the law that human life and dignity were inseparable, representing values prior to all others. Together they form an integral, basic right which may not be restricted and which is the source and precondition of numerous other basic rights. One would expect far-reaching consequences for the legal system as a whole from the extension of the ratio decidendi to other pieces of legislation on the activities of state organs involving possible use of lethal force. Although the Court did not go into a comprehensive analysis of the issue as it relates to problems outside the scope of the death penalty, it is clear that any “official killing” is contrary to the constitutional right to life and human dignity. The Hungarian Constitution prohibits any limitation of the essential substance of human rights. Thus, by declaring the unconstitutionality of the death penalty because of the obvious infringement of the right to life in cases of killing by the representatives of the state, the Court inevitably implied that all ac-
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tions with a similar possible result were to be refrained from in the course of exercising public power within the framework of the Constitution. This seems to be a rather strict conclusion, but it is a logical one. Concurring opinions of members and experts of the Constitutional Court also emphasized the superior, therefore unassailable value of human life and dignity. The most permissive view has been expressed by professor József Földváry, who stated in his expert opinion given to the Court on the death penalty: “There are, indeed, cases of violations of inherent rights which cannot be perceived as unconstitutional. However, these always relate to a collision with another inherent right and the conflicts must be limited to a rational and morally acceptable measure.” Though Földváry did not mention police use of deadly force, one can come to a position of acceptance based on his argumentation. But even this ‘tolerant’ perspective excludes justified shooting at human beings when there is no imminent danger to life or other constitutional value of outstanding importance. Perhaps it would suffice to retain only section 52, paragraph 1 of the Law on the Police, providing that the police may use a firearm for lawful defense or in case of emergency. These categories have been well defined by jurisprudence. However, section 54 of the 1994 Law on the Police empowers law enforcement officers to use firearms in a number of further cases partly overlapping with lawful defense and emergency action. According to this passage, police may resort to shooting in order to avert a direct threat to or attack against life; to avert a direct attack endangering bodily integrity; to prevent or to interrupt the committing of an offense causing public danger, a terrorist act, or airplane hijacking; to prevent an offense from being committed which involves firearms, explosives, or other means suitable to kill; to prevent an act aiming at unlawful seizure of firearms or explosives; to avert an armed attack directed against a facility of outstanding importance for the functioning of the state or for supplying the population with goods; to apprehend a perpetrator who intentionally killed someone or to prevent his escape; to apprehend a perpetrator of an offense against the state or humanity, or to prevent his escape; to enforce a police request to lay down weapons or other dangerous objects if the behavior of the persons concerned points to using them directly against others; to prevent escape, helping someone to escape by violence, or the fleeing of persons arrested or detained due to a judicial decision, unless the person is a juvenile; to avert an attack on the police officer’s own life, bodily integrity, or personal freedom. Section 57 stipulates that firearms shall not be used against a person in a 100
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crowd or group of people unless it is clearly possible to target the individual. Of course, the latter does not make any sense: if the conditions for shooting an individual are present, he will be a target no matter whether he is within a crowd or group of people or not. Needless to say, the danger of the police exercising these powers as a substitute for the death penalty is not negligible. It has to be underlined again that many of these possibilities for shooting do not presuppose any serious threat to life or bodily integrity. The protection of such legal objects are ensured by separate provisions covering the use of weapons. Thus, a clear contradiction emerges with the previously described perspective on the superior importance of human life and dignity. There is no legal way to execute people after having investigated the case thoroughly within a criminal investigation guaranteeing due process and safeguarding a suspect’s rights, while a person can be killed by a police bullet without any particularly deep examination of the facts. It is also evident that the scope and extent of the right to life do not depend on which state organ’s action results in the death of an individual. Several provisions of the Code of Conduct can be perceived as an admission of errors made in the adoption of the Law on the Police. Some important changes have been introduced into the premises on the basis of which deadly force may be applied. On the one hand, this is to be welcomed, while on the other hand, contradictory regulations will only increase the confusion concerning the legal basis of firearm use. The Code has been published as an order of the Minister of the Interior and as such does not have the power to modify an Act of Parliament. Despite this clear constitutional violation, the Code contains provisions deviating from corresponding rules of the Law on the Police. The most important change is that in the interpretation of the ministerial regulation, firearms may only be utilized in cases of escape, fleeing, or attempts to free prisoners if the underlying offenses have been committed against the state, humanity, or life (section 64, paragraph 2 of the Code). Limitations on the search and seizure powers of the police: it makes a significant difference whether search or seizure is carried out within or outside criminal proceedings. The latter have been rather loosely regulated in order to promote police efficiency. Search of the clothing or vehicle of a person in the course of an identity check is possible if needed or to avert probable danger. Such intervention may also be based on suspicion of a criminal or civil offense (section 29, paragraph 4 of the Law on the Police). Police may, after a warning, search the clothing of an individual 101
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who has been arrested or apprehended with a view to ensuring that he appear before a given authority, with the aim of seizing an object suitable for attack or for causing danger to himself. Except for urgent cases, the search of clothing shall be carried out by a person of the same sex. The action must not be performed in an indecent manner (section 31 of the Law on the Police). Akin to general identity checking, a search may also be conducted indiscriminately on a mass scale. Section 30, paragraph 3 provides that such measures may be implemented aiming at the prevention of a danger posed by an unlawful act threatening the safety of a meeting, an event, the traffic, or the order of a public area. Police are authorized to search all persons’ clothing and vehicles within an area determined by the head of a police unit. Law enforcement officers also have the right to check compliance with conditions set by the organizers or the owners of the premises, further, to seize objects endangering public security or to prohibit such items being taken into the given premises. Search of premises is normally possible only within the framework of a criminal investigation. However, for purposes of VIP protection or guarding a facility, police may apply technical checks and order the depositing of legally possessed dangerous objects (section 46, paragraph 4 of the Law on the Police). Secret search of a private residence may be done with a judicial warrant, save in urgent cases when the chief of the investigative unit has the power to order it, simultaneously applying for posterior approval by a judge (section 69). The Code on Criminal Procedure (Act I of 1973 as amended, sections 101 to 105) authorizes investigating authorities, including police, to seize objects to be used as evidence, or which may be confiscated, or possession of which violates the law. Search of premises may be effected in order to find material evidence or the perpetrator of a criminal offense. Personal search is lawful if justified by the probability of finding pieces of evidence. Search and seizure within the scope of a criminal investigation have to be carried out without unnecessary harassment of the person concerned, if possible during daytime. Causing unreasonable damages or disclosing information irrelevant to the case but violating privacy should be avoided.
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Police Governance in Romania Manuela Stefanescu
This essay presents an overview of the governance of the police in Romania. It touches upon the three most important questions related to this topic: the organization of the police, the accountability of police officers, and the oversight of the police by the state and civil society.
1. Organization Throughout the 50 or so years of communism, the ‘militia’, as the police used to be called, was employed as a powerful instrument to crush any individual or collective protest against the powers-thatbe. For many years, Romanians associated the police with the secret services (the ‘Securitate’) and feared both equally. After December 1989, the names of the two institutions were changed (the militia became the police and the Securitate became the Romanian Intelligence Service), each having their own duties established by law. However, both are still militarized, as are other special services, including the Foreign Intelligence Service, the Guarding and Protection Service, and the other secret services. This means, among other things, that their internal rules and regulations are classified as secrets, that they benefit from numerous material privileges, and that only military prosecutors can investigate potential abuses; if indicted, the perpetrators can be tried only in military courts. The new Romanian Constitution was adopted by the Constituent Assembly of 21 November 1991, and came into force pursuant to its approval by national referendum on 8 December 1991. The only reference to the police in the Constitution is to be found under art. 117, para. 3 which reads that “provisions under para-
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graphs (1) and (2) [both regarding the army–author’s note] shall apply accordingly to the police and security services of the State, as well as to other components of the Armed Forces”. The article is placed under Chapter V—Public Administration, Section 1— Specialized Central Public Administration. The pyramidal structure of public order, national security, and defense is organized as follows. 1.1 The Supreme Council for National Defense Law 39 of 1990 on the Supreme Council of National Defense (Romanian acronym, CSAT) was passed the same day (12 December 1990) by both the Senate and the Chamber of Deputies of the first Romanian Parliament after December 1989—which also acted as a Constituent Assembly in charge of preparing and adopting the new Constitution—and promulgated the next day by the President of Romania. Article 3 of the law states that the President of Romania will chair the CSAT; the same article lists the officials who are to be members of the Council, one of whom will be the Minister of the Interior. Art. 2, para. C, letter g) provides that the CSAT shall analyze and approve “the plan of cooperation between the Ministry of the Interior and the Ministry of National Defense, as well as its application with regard to their units’ interventions and missions, use of weapons, ammunition and technical equipment included, with a view to protecting and defending important national objectives, and maintaining and re-establishing lawful order”. Letter ‘h’ of the same article refers to cooperation between the two ministries in case of national crisis or catastrophe. The CSAT establishes its own rules and regulations. Art. 8 of the above law specifies that the CSAT should present an annual report to the Parliament. 1.2 The Ministry of the Interior According to art. 4 of Law 40 of 1990 on the Ministry of the Interior, the ministry includes: the police, the gendarmerie, the fire department, the passport and border police, and the state archives. Art. 14 states that the ministry is led by a structure (‘college’) which includes the chief of police, but the minister is entitled to adopt measures with or without the college’s approval.
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Art. 16 provides that the police, the gendarmes, and the passport and border police should organize military councils whose operation is regulated by norms approved by the Minister of the Interior. The law, and explicitly art. 22 and 23, specifies that the Ministry of the Interior is a military structure. The law does not mention civil oversight of the Ministry’s activities. 1.3 The Police According to art. 1 of Law 26 of 1994 on the Police “the Romanian Police is part of the Ministry of the Interior and a specialized institution of the State which exercises powers concerning the defense of the person’s basic rights and freedoms, of private and public property, the prevention and discovery of offenses, and the observance of law and order on the country’s territory under the law”. It should be noted that the Constitution includes the police under “public administration”, while the Law on the Police defines it as a “specialized institution of the State”, thus creating a confusion as to the real place of the police in society. What is clear is that the police form part of the executive power, subordinated to the Minister of the Interior. The latter is a civilian. Art. 15 of Law 26 of 1994 on the Police lists the police’s competencies in 19 areas, including “collection of information with a view to taking cognizance of, preventing and combating criminal offenses, as well as in situations where there are data or indications that the committing of illicit acts is being arranged” (letter f), “to carry out investigations” (letter g), and to take people into “police custody and preventive detention before trial” (letter h). The police also sanction petty offenses (contraventions) (art. 15, letter r) with substantial fines, an activity regulated by Law 61 of 1991. If the fine is not paid within 30 days or contested in court within 15 days, the police can ask a judge to convert the unpaid fine into a term in prison which cannot exceed 6 months. According to the same law, a police officer may decide if a petty offense should be punished directly by a term in prison, in which case the accused is subject to an emergency court procedure. On 21 June 1999, Law 61 of 1991 was modified in the sense that individuals guilty of petty offenses are offered, as an alternative to incarceration, the opportunity to perform community service. The mayor’s office and the local councils are in charge of assigning them various jobs. The police also keep records on the general public, identity cards, and changes in the permanent or temporary residence of 105
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Romanian citizens (art. 15, letter o). The Law on Population Records of 1996 regulates this activity. Law 26 of 1994 on the Police contains provisions that run counter to the Constitution. For example, art. 23 (personal freedom), para 3 of the Constitution states that “Detention may not exceed 24 hours” with regard to deprivation of freedom without an arrest warrant. The Law on the Police introduces the same provision at Art. 16, letter d) (24 hours in police lockups without arrest warrant), but adds another 24-hour period of detention in police lockups in the form of the “taking into police custody” for identification of anyone who represents a threat to public order, human life, and so forth—or of anyone suspected of committing such crimes. In other words, deprivation of freedom on this pretext can extend up to 24 hours, followed by the legal 24-hour detention: that is, a total of 48 hours. The structure of the police is regulated by articles 5–14 of the Law on the Police, as follows: a) The General Inspectorate of Police, which conducts and supervises all police divisions and is headed by a general inspector recommended by the Minister of the Interior and appointed by the Government; b) The General Directorate of the Bucharest Police, headed by a general director appointed by the Minister of the Interior. The Minister of the Interior establishes the number of police stations in Bucharest (currently 23); c) County police Inspectorates (there are 40 counties in Romania, plus Bucharest) headed by an inspector. In each district, there are police stations in cities, towns, and communes (groups of villages); d) railway, air, and naval police inspectorates, with their own police stations; e) educational institutions training police officers. The Law on the Police should regulate the rank hierarchy within the police. This act should have been submitted to the Parliament, debated, and passed in 1994–1995. A first draft was presented to the Parliament during the second half of 1995, but it was never debated. The bill was withdrawn and reviewed by the Ministry of the Interior and then approved by the Government, which should present it to the Parliament for debate and approval in 1999, along with a proposal to modify the Law on the Police. 106
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In the meantime, police status is regulated by the statute regulating military personnel. Police officers have military ranks, and they have to obey their superiors’ orders, without any possibility of refusing, even if they believe the orders to be illegal. However, when torture, or inhuman or degrading treatment are involved, “no police officer can invoke the orders of a superior or of any other public authority” to justify this kind of crime, which is totally prohibited by law (art. 27 last para of the Law 26/1994 on Police). At the same time, police officers enjoy the same sort of advantages as the military (free medical assistance, free transportation, free uniforms, lower retirement age, and so on). The whole police structure has a very strict hierarchy, the General Police Inspectorate being in full command. The General Inspector is accountable only to the Minister of the Interior. Military discipline imposes very strict rules within the police. Although the police cooperate with other authorities (the prefect and the county council or the mayor and the town council) they take action only upon orders issued by high-ranking police officers.
2. Accountability Accountability is a key aspect of police functioning. In this section, we look at the accountability of the police in criminal procedures and on the individual responsibility of police officers.
2.1 Criminal Investigations The police, in common with other investigating bodies, are subordinate to the prosecution in criminal procedures. The prosecutor is the only entity authorized to indict. The Romanian system of prosecution consists of two sections, the civil and the military. The civil section deals with all crimes except for those in which the military is involved. The military section deals with serious crimes perpetrated by police officers (petty crimes are investigated by special police forces, which can apply only administrative sanctions), by the army, or by any other militarized institutions (gendarmerie, fire department, and so on). The prosecutor supervises investigations conducted by the police or other investigating bodies, analyses the results and recom107
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mendations when investigations are completed, and decides whether to indict the suspect. In case of serious crimes, the prosecutor must conduct his/her own inquiries. 2.2 Individual Responsibility of Police Officers There are two issues to be dealt with in connection with the individual responsibility of police officers: their responsibility in terms of the police hierarchy and in terms of the law. 2.2.1 Hierarchical Responsibility
In terms of individual responsibility, police officers are accountable first to their ranking superiors. As already shown, they cannot refuse to carry out an order, even if they believe it is illegal. Until the spring of 1998, the Ministry of the Interior had a special division—UM 0215 (UM stands for military unit)—which was a sort of ‘intelligence’ service. The public learned that this division had been involved in a number of illegal activities and it had to be disbanded. Apparently, the division was split into two internal services dealing with ‘protection of personnel’ and ‘corruption’ respectively. 2.2.2 Legal Responsibility
Law 26 of 1994 on the Police puts special emphasis on the responsibility of police officers in certain cases, such as the use of firearms (if, for instance, the individual fired upon dies or is wounded the competent prosecutor shall be notified immediately [art. 23]), torture, inhuman or degrading treatment (art. 27), and other acts of abuse (art. 28). Given the seriousness of the offense, individuals who wish to lodge a complaint against police officers have two possibilities: for misdemeanors (insults, threats, and so on) complaints are filed with the superior of the accused police officer; for serious offenses (such as torture, ill treatment, illegal detention, and so on) the complaint must go to the Military Prosecutor’s Office. Some police officers are appointed by the General Inspector to investigate their own colleagues. Such police officers have to be at least equal in rank with the accused officer. Every police officer in charge of that sort of mission has limited territorial competence. Only the police officers of the General Police Inspectorate have 108
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authority nationwide. This investigating body within the police is not separate from the rest of the police force (as Internal Affairs is in the USA) as its members continue to discharge the normal duties of any other police officer. This already calls into question the impartiality of investigations. Assuming that investigations have been properly conducted, the investigating officer can only draw his conclusion and present his recommendation to his superiors, who then make the final decision. The punishment is only of an administrative nature: verbal or written reprimand, transfer to another police section, temporary suspension, and so on—the harshest punishment is dismissal from the police force. Councils of honor have been set up within the police structure to take charge of establishing the kind of punishment to be meted out. Officers have the possibility of appeal within the system to a superior officer or council of honor. After this, the police officer may address a court to appeal the internal decision. If, in the course of investigations, the accused police officer is found guilty of a much more serious offense, the case must immediately be referred to the Military Prosecutor’s Office. Apart from these two possibilities (police investigating police and the Military Prosecutor’s Office investigating police), individuals may address the Ombudsman’s office. They can also complain to the specialized committees of the Parliament or ask an MP to address the Minister of the Interior on their behalf during a special parliamentary session. However, this last possibility has little chance of achieving anything. Military prosecutors take over investigations from the very beginning in cases of abusive behavior, abusive investigation, inhuman or degrading treatment, or torture (involving the police and individual victims), and cases of corruption, espionage, and so on (affecting public institutions). It is likely that a military prosecutor investigating a military (or police) officer would be biased in the latter’s favor. Moreover, the victim who complains against a police officer bears the burden of proof: medical certificates (issued only by the national forensic institute and its regional laboratories), witnesses, photographs, and so on. According to the Code of Criminal Procedure, a ‘no indictment’ decision issued by a military prosecutor can be appealed by the victim to the superior of that prosecutor. The superior may rule that the initial investigation was not sufficiently thorough and that additional information is required. Usually, the superior sends his/her questions to the military prosecutor who first investigated the case. It is difficult to believe that someone who has ruled on a case would radically change his/her mind and reverse the initial decision. In case of a second ‘no indictment’ 109
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decision, the victim may complain to the General Prosecutor. The latter may send the case back to the military prosecutor who conducted the first inquiry for further investigations. As, in most of the cases, the result will still be a ‘no indictment’ decision, the victim has no other way of appealing. In other words, a person who thinks he/she is a victim of police abuse has no access to courts where an independent authority would decide. In December 1997, the Constitutional Court of Romania ruled that barring access to justice to victims who receive a ‘no indictment’ decision from prosecutors (civil or military) was unconstitutional. The Constitutional Court decided that, if the victim is dissatisfied with a final ‘no indictment’ decision issued by the prosecutor’s office he/she should address a court. Unfortunately, the Constitutional Court cannot rule which court should be resorted to, what the court should consider in such a case, what sentence it may deliver, and how the decision should be implemented. These details should be established by law, that is, by means of a lengthy procedure in the Parliament, aimed at either adopting a new law or modifying the existing one.
3. Oversight of the Police Oversight of the police relates primarily to two issues: oversight by state bodies and the civil monitoring of police operations.
3.1 Oversight by State Bodies Both the Minister of the Interior and the police are accountable to the Parliament, even if the law does not specifically say so. Each chamber of the bicameral Parliament (the Senate and the Chamber of Deputies) has a committee for security, national defense, and public order. Either of the two committees may ask for clarification on various issues related to the activities of the Ministry of the Interior, including the police. The police may also be supervised by the Ombudsman. Unfortunately, the Ombudsman has limited powers; in cases of police abuse, all that this institution can do is ask for details and make recommendations. Art. 46 of Law 26 of 1994 on the Police stipulates that police “shall cooperate with: a) the specialized central public authorities
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and the local public administration authorities”. Art. 47 of the same statute states that “Chiefs of local police bodies shall be obliged to inform the prefects and mayors—periodically or upon request—on current crime statistics, measures taken for the prevention and detection of crimes, maintenance of law and order, and the guarding of important persons and their residences, and they shall request the public administration’s support in connection with measures called for in the territorial-administrative unit for the application and observance of laws and decrees, decisions and statutory orders of the Government.” Despite the pompous wording, prefects, mayors, and district and town councils actually have little say in local police activities. It remains unclear whether the flow of information between police and local administration functions well. It is true that prefects, mayors, and their deputies can decide if police intervention is necessary to prevent or control demonstrations or meetings disturbing public order, but only “at the request of the chief or deputy-chief of the local police” (Art. 22, para 2 of Law 26 of 1994 on the Police). In other words, if the police do not want to intervene no local official can force them, no matter how serious the situation may be. A number of mayors have worked out a set of proposals regarding the decentralization of the police. The local police—they claim—should be under their orders. NGOs such as APADORCH fully support this initiative, although there is little chance of seeing it submitted to the Parliament as a bill. 3.2 Monitoring by Civil Society Nothing in the present legislation allows for civil oversight of police operations. However, as we have seen, specialized parliamentary committees and the Ombudsman can exercise limited control over the police. There are also NGOs, such as the already mentioned APADOR-CH, which have their own programs/projects aiming at the monitoring of police activities. Although the response of the police to NGOs’ findings on police brutality are usually limited to denying the very existence of such cases, it should be noted that, since the end of 1998, the police have started to open up (for instance, APADOR-CH has been allowed to enter police lock-ups). The good cooperation which exists between NGOs and the media should be mentioned here: cases of police abuse investigated by NGOs are covered by the media, while NGOs take up cases of that nature presented in the media.
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The Challenges of Transition as Seen by the Police
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The Romanian Police and the Challenges of Transition Pavel Abraham
In this essay I shall attempt to describe the challenges the Romanian transition has set for the country’s police forces, the efforts the police have made to adapt to the new situation, and future plans to accomplish reform aiming at enabling the force to cope with the new requirements articulated by Romanian society and the European Community.
1. The Evolution of Romanian Society, 1989–2000 The changes in the political system in Romania at the end of December 1989 radically influenced both behavior and ways of thinking as people gained their liberty at a time when tensions capable of generating enormous conflicts had accumulated in society. The establishment of a space free of the regulations of the totalitarian regime, but not yet defined by a democratic reference system, made many people feel bewildered and guilty—a very human reaction on entering an unknown world in which the rules are being created in a haphazard manner. The immediate postrevolutionary period was characterized by people’s incapacity to regain their balance and the impossibility of taking a clear stand on events developing with extreme rapidity. In the economic field, disorder and chaos prevailed. Workers in a number of sectors demanded that wages be increased and that allowances unpaid for several years should now be honored. Shortages of energy, raw materials, and other things increased the difficulty of the situation and caused a massive decrease in production. The whole centralized economy went into convulsions, generating uncertainty in all areas of life. People at least hoped for a
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secure welfare system, but the economic preconditions were completely lacking. Tired of the utopian experiments of previous decades, people were no longer willing to be self-sacrificing. The institutional and statutory background was not sufficient to support rapid behavioral adaptation, although this would have been necessary for the establishment of strong foundations for society. In this tense situation and amidst the violent disputes regarding the legal functions of the state administration, the Police had to deal with a number of emergencies which threatened social peace. Before discussing the place, role, and efficiency of the police in the period since December 1989, we need to provide a little background information. During the events of the second part of December 1989, several police stations were attacked, set on fire, and destroyed by violent crowds, sometimes armed with shotguns. In these unprecedented circumstances policemen were killed (18 officers, 24 non-commissioned officers), others were seriously wounded (24 officers, 36 non-commissioned officers), or ill-treated. These experiences (accompanied by public anger with the entire establishment) severely reduced the capacity of the police to operate effectively in the subsequent period. The frightening increase of violence, the deep economic crisis, and the extreme tension caused by violent mobs roaming the streets led to a clear reduction in the efficiency of the police. At the same time, the lack of police forces specialized in maintaining public order in case of protest-action, and the development of situations never encountered before, left its mark. These factors explain the hesitant reaction of the police with regard to increasing crime and disturbance of public order. Ten years after the radical change of system, expressions such as ‘reform’, ‘restructuring’, ‘modernization’, or ‘transition’ mean almost nothing to most Romanian people, having been eroded by frequent use. Reality in the year 2000 has fallen short of expectations concerning structural reform, the consequence being a lack of involvement and deep apathy on the part of all social actors, including the police. The anomie characteristic of Romanian society is deepening, accompanied by the ‘dissolution of state authority’, a formula widely used by the Romanian media. Two types of institutional erosion took place at the beginning and the end of our period of reference, in 1990 and in 2000. In 1990, the following factors pointed to the collapse of the system: 116
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• the system was rigid, insensitive to the external changes taking place elsewhere in society; • the police system had largely adapted itself to the role of protector of the totalitarian regime; • the police command was completely politicized in order to protect the interests of the regime, which resulted in no less than nine changes in the leadership, a phenomenon reproduced at both county and local level; • institutional disintegration started in December 1989, causing severe problems for the old-fashioned corps. In 2000, there is a crisis of trust in the structures of state authority. The police is most frequently criticized for its insufficient organizational adaptation to a quickly changing society: • the system is flexible, sensitive to the requirements of society, but it is insufficiently equipped to ‘compete’ with criminals; • the police are there to serve citizens and society, but the level of trust between the police and civil society is low; • command is supposed to be in the hands of competent persons, but unfortunately a degree of political inconsistency and the survival of the old system of favors and personal relations are still present; • the erosion of the population’s trust in the police is due to the corruption reported by the media, the belated intervention against those bent on violence, charges that the police still serve party interests, and, last but not at least, the ‘crime wave’ which seems to have reached the level of an unstoppable tornado; • the legislative framework is characterized by a high level of inertia; it is not capable of responding quickly to the strategic realignment of criminality, with special regard to organized crime. Nowadays, we are witnessing the convulsions and attempted adaptation of an organism evolving in a fluid, constantly changing environment, allowing very little room for error. The Romanian democratization process is characterized by continuous transition and the lack of a homogenous structure programmed for positive change.
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2. The Direction of Change—the Importance of the Social Background and the Outlines of a Policy Marked by Discontinuity Until December 1989 the police was considered to be an oppressive structure protecting the Ceausescu regime. The name of the force was changed from the Militia to the Police by Law Decree No. 2 of December 1989 regarding the Constitution, Organization, and Functioning of the Council of National Defense. On 18 December 1990 the Romanian Parliament adopted Law 40 on the Organization and Functioning of the Ministry of the Interior. Article 4 provides that “the Ministry of the Interior consists of the police, gendarmerie, border guards, fire brigades, passport department, border control, registration of foreigners, and the state archives”. The organization and functioning of the police are regulated by Law 26 of 1994. In 1998, amendments concerning the status of police officers were submitted for debate and approval. However, the legislative background is only one factor having an impact on the Romanian police. The legislative vacuum emerging after December 1989 was replaced by a veritable avalanche of norms, decrees, and internal orders, although most have been old-fashioned, anachronistic, and ineffective, either because they do not take the domestic or the international situation into account or because they are based on obsolete working-models. The liberation of the police—and other law enforcement forces—from the political sphere indicated the starting point in establishing a democratic police aiming at serving society. Nevertheless, there have been several street confrontations in the course of which the police were accused of political bias and of being used as an oppressive instrument by the powers-that-be (the miners’ marches in June 1990 and September 1991). The same perception prevailed with respect to the timid and inadequate interventions in disputes involving ethnic minorities (particularly with the Roma minority), as well as the religion-based conflicts between Orthodox and Greek Catholic Christians. Besides the debates about the political aspects of the miners’ marches and other violent conflicts—judicial proceedings are now in progress—we must mention the inquiry into the role of the police in these events and also into the intervention of students of the Police Academy in certain demonstrations.
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As a result of political encroachment, suspicions emerged regarding the motivation behind the replacement of certain highranking police officers, the consequences being reflected in tensions at police department level, the negative press campaign, the browbeating of staff, the spreading of a sense of guilt, the accumulation of unprofessional rivalries, and the establishment of separate power-bases. It must also be mentioned that the desire to detach the police from the political sphere has turned into the destruction of its professional nucleus in the course of only 3 or 4 years: two-thirds of high-ranking officers have been replaced by unqualified persons and this has seriously undermined the professionalism of the force. During the ten years of transition neither a definite reform plan nor a coherent strategy have been elaborated. The incoherence of the organizational measures aiming at adaptation has only increased the chaos of transition. Real progress started only during the second half of 1999. We should cite the Hungarian experience here, where the police agreed to consultations with an independent international group in cooperation with the Dutch Police Study Center in Warnsfeld. The fact that Romania did not ask for international assistance reflects the absence of a strategic approach integrated in a national-level reform policy. However, something of a thaw commenced at the beginning of 1997, culminating in 1999 in the establishment of cooperation with Italy, USA, France, Germany, and the UK. Shared experiences have provided the Romanian police with a useful conceptual framework. After a long period, the co-optation of a number of foreign specialists by the Ministry of the Interior has proved that any experience can be useful and can promote the shaping of reform. One of the main reasons for the police’s inability to meet the requirements set by an evolving society is poor funding accompanied by an incoherent administration which is unable to draw up a resource planning strategy. The establishment of a number of concepts regarding police budgetary allocations can be regarded as the first step in the evaluation of the system of resource distribution. There is also a trend to establish more active relations with the community. This partnership—in the process of being forged— also involves other units of the Ministry of the Interior. One indication of this is the establishment of the Institute for Criminal Investigation and Forecasting in 1998. The institute’s activity 119
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covers a wide range of problems in connection with the identification of criminal motives and possible solutions. We can draw the conclusion with regard to ten years of police reform that the process has lacked a common basic standpoint, which has resulted in one-sided approaches unconnected to a long-term strategy. The institutional policy applied has created a number of discontinuities. Most decisions have been influenced by socio-political events instead of an integrated long-term strategy. In this connection we must point out that the consequence of the ‘miners’ march’ in January 1999 was that the command of a whole police unit (the Defense of Public Order Corps) was subordinated to the Gendarmerie, which later turned out to have been a bad decision, since the police needed a rapid intervention unit to face the riots and other ‘street events’. This tendency to extend the Gendarmerie’s competence regarding the defense of public order is dangerous, and might lead to the militarization of public order, as under the authoritarian regime. Most of the decisions concerning organizational reform have been taken under the pressure of socio-political events, not allowing time for the elaboration of proper solutions: this happened in the case of the elimination of the Department of Weapons, Ammunition, and Toxic Substances, and all the territorial subordinate units in 2000. The difficulties concerning the launching of reform are similar to those of the Belgian police, in the case of which, after a number of cases which led to a public outcry (such as the AgustaDassault and Dutroux affairs), all the different political forces adopted a reform agreement aiming to solve the police crisis, something which had been postponed for a long time.
3. Aspects of a Modern Police Force The number of crimes committed continued to increase in 1999, hand in hand with the anomie characteristic of transitional Romanian society, clearly reflected by the dynamic increase of criminality. The difficult economic situation in 1999 also contributed to the increase of economic–financial and regular crime. Some measures have been taken in order to deal with the ‘crime wave’ that has flooded Romanian society in the past ten years, and to address the police’s institutional dysfunctioning by
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reshaping organizational structures, securing a better distribution of forces all over the country, establishing a better relationship between ranks, and between operational and auxiliary services, harmonizing human resource management, improving relations with the community, and increasing the transparency and development of national and international cooperation. We should also remember the changes necessary at the administrative and logistical levels, the struggle against corruption and organized crime, developing public relations, the continuing demilitarization of the police, and the unsatisfactory protection of police officers. 3.1 Organizational Reform The Romanian police have undergone organizational changes during the past ten years. Some of these have had positive effects, while others have proved ineffective. Corresponding to the increase in criminality, new structures have been created in connection with—among other things— criminal forecasting, organized crime, corruption, and the control of trafficking, as well as specialized structures aimed at securing public order and intervention in university campuses. With the intention of improving their organizational structure, the police have tried to ensure that these changes guarantee the efficiency, transmission, and prompt performance of the orders of superiors within the whole range of police activities, and contribute to the improvement of collaboration among different police units. There has been a lot of talk about so-called community policing, but the results have not met expectations. It is important for the Romanian police to adopt a clear policy, establish a partnership with the community, and develop good interethnic relations. Expert recommendations are centered around a policy based on the general principles of democratic policing oriented towards the community. Special attention should be paid to the dual nature of the responsibility and duties of the Public Order Police and the Romanian Gendarmerie, the consequences of which have been reflected in the lack of coordination and dysfunctioning of interventions, such as the disastrous situation during the ‘miners’ march’ in January 1999.
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3.2 Human Resource Management The most significant risk factors in respect of human resource policy are: changes for the sake of change itself; the confusion created by new terminology; starting the process without proper preparations; sending out erroneous signals and the erosion of staff morale; the extreme prolongation of the transitional period. Human resource management reform must focus on staff recruitment and selection, appointments, promotion, assessment, and basic and in-service training. The development of new instruments for human resource administration also has the purpose of more effective career management. This motivated the elaboration of the ‘Concept regarding the Career Development of the Staff of the Ministry of the Interior’. Between 1990 and 1999 police numbers were increased on several occasions, rising from 32,748 in 1990 to 52,170 in 1999. Before the Revolution of 1989 Romania had a low number of police officers per head of population (1 policeman to 518 inhabitants); now it is close to the European average as a consequence of the establishment of new police bodies (organized crime unit, corruption control forces, bank security forces) and an increase in the numbers of existing forces: public order unit, traffic department, department dealing with weapons and explosives, control of financial crime, criminal investigation, the residence registration department, and so on. In spite of increased staff numbers and the redistribution of forces to high-risk areas, the crime rate is still rising. In the course of staff selection, the officers in charge sought to observe the principles of competence and moral characteristics instead of the socio-economic criteria applied in Communist times (when class origin was the decisive factor) in order to revitalize the police. However, a law enforcement career is less attractive than ever: the availability of other, more profitable activities prevent the police from realizing these objectives. In some cases, policemen who had committed disciplinary offenses pre-1989 were readmitted. The training system does not meet the requirements set by a pragmatic police organized on a rational basis: • the Police Academy: this has a very non-pragmatic orientation, applying an elitist policy leading to staff failure as a result of insufficient training for ‘inferior work’;
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• the NCO Schools follow the same selection criteria as the Police Academy and also offer an excessively theoretical education; • the Police High Schools have proved to be unsuccessful in respect of supplementary education, while events require an ability for continuous adaptation. We must also mention the rigidity of the knowledge which forms the nucleus of future police officers’ education; • police education has a formal character resulting from oldfashioned and inadequate approaches and the lack of financial resources. In order to solve the problem of educational rigidity, the new managerial model should focus on changing mentalities. The management of changes represents a continuous challenge in this regard. With regard to police efficiency, it is important to take into consideration the operational situation and internal migration (rural–urban) trends related to the increase of crime rates in certain territories when deciding on staff distribution, so that forces can be concentrated in areas where criminality is likely to increase. 3.3 Relations with the Community It is extremely important for the police to involve the community in programs aimed at the prevention and combating of crime. In Romania, we are witnessing a ‘pilot phase’ in this respect, as ways of increasing the institutional credibility of the police in the eyes of the public are examined. One problem is that several of the measures taken in this field have not been integrated into a comprehensive and consistent strategy. Programs taking into account citizens’ needs have been established. One of these is named ‘Open Doors’, aimed at setting up a direct relationship with the police leadership. As a response to the requirements of society, the elaboration of documents concerning all dimensions of police work became necessary. At the end of 2000, the Ministry of the Interior published the so-called White Book, which aims at making the organization more transparent to citizens.
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3.4 Public Relations In the past three or four years adequate communications have become a priority for the police. This is indicated by the fact that the position of spokesman has been established at each police station. The exchange of information with society has proved to be beneficial in certain criminal cases (for example, the pedophile case in Iasi), but criticisms of the police draw attention to their reluctance to investigate cases of police brutality or corruption (for example, the ‘Constanþa case’, when a journalist was illtreated and assaulted by two officers because he managed to get into a private party given by police officers). Transparency (a concept frequently mentioned in the reform plans concerning the relationship of the population and the police) requires more than just goodwill statements—the work of the public relations experts must also be coordinated with the activities of other institutional units. Without open access for the ‘media consumer’—that is, the citizen—it is impossible to promote community policing, citizens’ security, a climate of trust, and so on. 3.5 Logistical, Financial, and Resource Management The large and complex reform process facing Romanian society has also reached the police—this highly specialized institution of the constitutional state. In order to fulfill their duties, the police must be equipped with modern means of operation, investigation, and protection; vehicles; weapons; means for ensuring public order; means and equipment for training officers. Between 1990 and 1993 the General Police Department was financed by the Ministry of the Interior because the territorial organization of the police did not make the independent financing of units possible. Since 1994, the General Police Department’s budget and the principles of its financial policy have not allowed it to exceed the level of equipment of the 1970s. The police officers’ main demands concern inadequate equipment which prevents them from performing their duties effectively. It is obvious that the maintenance of public security is not a short-term requirement—its continuity can only be assured with the proper means (consider the ‘Luna-action’ of April 2000, when many police officers swamped high crime areas, but the results did not even meet the most pessimistic expectations and failed to achieve long-term effects).
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The priority of the Romanian Police is to improve the supply situation, which is only possible through better planning, voluntary contributions, and the distribution of these means among the areas under the most pressure. It must be pointed out that every budgetary allocation should be realized within the framework of comprehensive reform. 3.6 Fighting Corruption and Organized Crime In the last few years, several legislative measures have been taken in connection with corruption and in order to intensify cooperation with other authorities engaged in prosecuting these kinds of offenses. At the beginning of 2000 this trend came to a halt, but the anti-corruption campaign is far from being accomplished. Corruption is growing continuously and takes ever-changing forms: bribery, misuse of influence, receiving undue advantages, and so on. We must also mention the simultaneous development of the so-called ‘black’ economy in the shadow of apparently legal business. The results obtained in the fight against corruption and organized crime were based on a special action plan. When different groups of offenders are acting in so many fields—illicit trafficking in drugs, violence, and blackmail (‘rackets’ from the former Soviet Union, specialized groups disguised as security and service companies), the forgery of Romanian and foreign currency (facilitated by improvements in printing and computer technology), prostitution and pimping, illegal migration (smuggler networks smuggling groups from the East to EU countries)—the secret mechanisms of organized crime can only be detected by coherent, professional, and continuous action. The degree of corruption among police officers has also grown, a favorite theme of the Romanian media. The practice of not punishing guilty officers has created a collective feeling of guilt associated with the disintegration of institutional authority. 3.7 The Protection of Police Officers The legislative framework regulating the status of police officers allows them to use firearms in order to defend themselves, while the consequences of the use of firearms are evaluated in strict accordance with the law.
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3.8 The Supervision of the Police The police have their own supervisory structure and are subordinate to the Ministry of the Interior, which is in turn subordinate to the Parliament through the Committee of National Defense and Public Order. The Ministry of the Interior has internal units dealing with control of the police: the Supervisory Group of the Minister of the Interior and the General Department of Information and Internal Protection, both subordinate to the Minister of the Interior. In the past few years, the Information Department has experienced constant changes negatively influencing its efficiency and resolve in serious cases of misbehavior. Little by little, civil society has also developed institutions monitoring police performance (especially with respect to human rights). One example is the foundation of the ‘People’s Lawyer’ Institute. The activity of the Ministry of the Interior is defined by its position as a member of the Supreme Council of National Defense, an authority headed by the President of Romania. 3.9 Demilitarization The steps taken in this direction are almost imperceptible in practice, but there is an auspicious tendency among police officers regarding demilitarization. The main factors hindering the accomplishment of this process are: • • • •
the absence of a firm demilitarization policy; the relatively high cost of reforming police structures; the fear of a possible decrease in police efficiency; the persistence of certain attitudes rooted in the past.
In future, an approach to demilitarization must be prepared by studying the exact cost of change and its implications for the efficiency and promptness of police action. 3.10 Relations with Other Bodies Generally speaking, relations between authorities with responsibilities in law enforcement are regulated thoroughly enough to ensure the smooth implementation of specific actions. 126
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The police have abided by these rules: they have concluded agreements of cooperation with other units, contributed to the solving of joint cases, and helped promote a more scientific basis for application of the law. A degree of dissatisfaction is often noted among police officers concerning how criminal cases are tried by the judiciary because it often happens that the accused is able to influence the judge or judges. 3.11 External Relations The external relations of the Romanian police, as a constitutive part of the national foreign policy of Romania, are adjusted to the external relations of the Ministry of the Interior, which means that special attention is paid to preparations for joining the EU and the Euro-Atlantic structures, as well as cooperation with international organizations in solving international cases. Therefore, there are cooperation agreements with the neighboring countries, with traditional democracies (UK, France, Germany, Spain, Italy, USA, and so on), and with specialized organizations of the Council of Europe, the European Union, and NATO. The main directions of police cooperation are as follows: • the prevention of and fight against cross-border organized crime, with special regard to trafficking in drugs and stolen goods, money laundering, smuggling, and prostitution. In this respect cooperation has been optimal—not only in the field of information exchange, but also regarding the European Union’s assistance with respect to the protection of the borders; • the forging of an up-to-date policy for asylum seekers and refugees, the prevention of and combat against illegal migration; • freedom of movement for citizens of Romania and other countries; • meeting the European and international standards of human rights and basic liberties; • adopting methods and techniques used by similar institutions in foreign countries that have proved to be effective and have relevance with regard to present and future relations.
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4. The Need for a Modernization and Reform Strategy for the Romanian Police After outlining the institutional changes which have affected the Romanian police more or less positively, we must look at possible future developments. A coherent strategy has been drafted for the period 2000–2004 and particular versions have been elaborated according to the possibilities offered by the budget. The reform strategy of the Ministry of the Interior focuses on the complete democratization and modernization of the Romanian Police, compliance with EU standards, and the transformation of the police into a civil institution serving citizens, local communities, and the democratic institutions of the constitutional state. The structural–functional modernization of the General Department of Police, and also of the territorial units, requires the reorganization and logical regrouping of the system, the decentralization of decisions, the consolidation and revitalization of local units, the abolition of internal functional parallelisms, and the coordination and control of the central apparatus. The main purpose of the reform is to increase the internal and external credibility of the police and the citizens’ trust in the fundamental institutions of the state through the promotion of modern and comprehensive legislation, the extension and enlargement of the prevention of and fight against crime, the adaptation of principles regulating the development of a service career, and human resource management. Institutional reform will be based on the creation of flexible and dynamic structures (the Criminal Investigation Department, the Public Security Police, and the Administrative Police), the transformation of the Romanian police into a civil body, and the coordination of the county police departments. The decentralization of decisions, responsibilities, and resources is required to achieve maximum operational efficiency (concentration at the county level) centered around a new severalyear planning system. The modernization of working methods and adjustment to the demands of a democratic society mean that a 60-percent increase in detection and the simplification of police administrative procedures are needed to meet European police standards. The provision of an efficient logistical system (vehicles and communications equipment, weapons, forensic equipment, real estate, administrative and computer technology, and so on) is the 128
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key to reform, since the police are vulnerable to criminal groups using the most modern technology. Human resource management will focus on reshaping the evaluation of individual performance and developing a flexible training system. The development of international cooperation will take place in a coherent milieu. The ultimate objective is to create the infrastructure necessary to solve the problems concerning the status and living conditions of refugees in Romania, immigration control, and international crime. The cooperation with the relevant units of the European Union aiming at the maintenance of regional stability will be improved by setting up an International Cooperation Department within the framework of the General Police Department. The strategy regarding the modernization and reform of the Romanian police, based on past experience and the experience of other democratic countries, will be drafted by first gathering the proposals of the territorial units, which will then be structured and developed by the Ministry of the Interior. The document will then be submitted to the Supreme Council of National Defense for approval. This will not be a one-way process: objections and suggestions may be made even after the plans are submitted to the Ministry. A number of points must be emphasized with regard to the practical implementation of this strategy: • In autumn 2000, parliamentary elections will be held in Romania, possibly leading to the formation of a new government which may reject the application of the strategy, so maintaining the discontinuity that has characterized the past 10 years. • The strategy is not able to predict all the possible socioeconomic changes of the next four years (economic development, living standards, unemployment, birth rates, internal migration, and so on). Although the strategy is characterized by a high level of generalization, its application may be delayed or protracted if these factors evolve in an unpredicted way. • The evolution and diversification of crime is very rapid and may confront the police with new challenges that the strategy could not take into account. The application of the reform and modernization strategy of the Romanian police enjoys the support of the police staff and is oriented towards meeting the requirements of both the Romanian population and the Euro-Atlantic structures Romania seeks to join. 129
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The Political Changeover and the Police Géza Finszter
Before recalling the developments of the 1990s, it is worth discussing briefly the social nature of the police. The literature calls our attention to three characteristic traits. First, the police are the most conservative organization within the state apparatus. Their operational philosophy tends to remain unaltered even when society itself is undergoing profound change. The police do not allow too much room for elaborate, evolving creative work. Policing is a branch of public administration, the procedures of which—save the requirements of treating people in a humane manner—are not governed by liberal ideas. Instead, they should be governed by the needs and requirements of good professional administration. 1
The second significant characteristic is that policing should be conducted in a low-key manner and in full consciousness of the public service ethos. Thirdly, the autonomous character of the police should be mentioned, which may be explained in terms of the secrecy resulting from the nature of the work, the monopoly of legitimate force, or the comradeship and solidarity deriving from the risks undertaken. (We should not forget that police work can be generally described as the use of physical force with the aim of preventing danger caused by unlawful human conduct.) At times of historical change, conservatism enables the police to survive without great upheavals, and to be as adaptable as possible to new political regimes without losing their professionalism. At the same time, stability may become disadvantageous when transformation of the organization becomes warranted by changes in social needs. As far as the second point mentioned above is concerned, under normal circumstances the police do not play a decisive role, either in destroying old structures or in building a new society. This facilitates neutrality and loyalty, which are
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essential for policing. At the same time, this is one reason for the low level of respect the profession enjoys. Finally, autonomy creates extremely strong forms of inner solidarity, essential for the willingness to take risks, and this strengthens the effectiveness of police action. However, closed bodies formed in this way find it very difficult to cooperate with society, although this should be a fundamental requirement for the effective protection of public safety. Police roles in political structures may be best described in terms of police tasks, police powers associated with these tasks, and police responsibilities. Public safety is a general social need. The police officer is accountable for this before civil society. In a democracy, this type of control is extremely strong, which means that the police are obliged to give up secrecy to a significant degree, and they also have to put up with limits imposed by the law—in exchange, they can count on considerable support. The restrictions on police activity resulting from democratic structures and rules on accountability and transparency enable the police to understand themselves better, to evaluate their own performance realistically, and to keep up with social change: in sum, by this means the police are transformed from a conservative formation into a modern organization ready for change. Policing socialized in this way enjoys more respect from society, which, sooner or later, will be followed by pay increases. As crime increases, the fight against crime also becomes increasingly ‘heroic’, and the police may be able to reach levels of respect never previously enjoyed. Police autonomy will not be based on exceptional powers, but on the requisite skills and the strength of the public service ethic. Respect for the profession will attract well qualified individuals to the force. The ability of the organization to retain staff will increase as it becomes better able to offer a lifelong career. Nevertheless, there are certain limits to socializing the police. The monopoly on the use of force should not be privatized, as it requires the authority of the state. Consequently, some police activities will always remain within the competence of public administration, directed by the executive power. Government responsibility for public safety requires that there be a bureaucratic apparatus capable of implementing crime policy efforts. Similarly, preparatory procedures, essential for law enforcement needs, cannot be turned over to private administration, although expanding victims’ rights may be given such an interpretation. Government tasks give priority to centralized solutions where the hierarchy is characterized by relationships of strict subordination. Such structures strengthen conservatism. Organizational reform may only 132
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be achieved if the central government also initiates it. Centralization carefully protects the closed nature of the organization, which weakens oversight by civil society and will remain an obstacle to social acceptance of the profession. The government’s crime policy can give more weight to police performance, for instance, by using its propaganda machine to attribute ‘demonic powers’ to organized crime, then releasing news about victorious efforts in combating it. However, if these results are not supported by everyday experiences, success stories will do more harm than good to law enforcement. Statism opposes the creation of strong organizational autonomy; moreover, it diminishes the police to the status of a mere instrument. This can be a difficult obstacle to turning the police into a real profession. A further characteristic of military-type organizations is that they are incapable of rating expertise more highly than power: a superior is ipso facto smarter than anyone under his command. An additional difficulty is the unbalanced internal division of labor, which enables only those at the top to synthesize activities. A profession can only develop if it has at its disposal proper techniques for measuring performance and criteria for ensuring quality. Police centralization poses an obstacle to the application of performance indicators because it can only tolerate indicators which make it possible to evaluate, in a very short time and based on very few data, the performance of the maximum number of personnel. Criminal statistics are incapable of giving a substantial performance evaluation; instead, they are only capable of conserving the existing leadership. There is no worse dependency than when one is made to be accountable for things over which one has no influence. In a state under the rule of law, there are natural counterbalances to government power. One flows from the theory of the separation of powers and is best expressed in terms of parliamentary oversight. Another is the rule of law itself, which naturally extends to the police administration, especially where there are historical traditions of placing public administration under law. The third factor is unconditional respect for human rights, which makes society sensitive to police abuses and prevents the government from demanding that the police be effective at all costs, while covering up unlawful police actions. It should also be born in mind that politicians are likely to use the threat of organized crime for their own purposes. This is why demonizing international organized crime poses a serious danger to democracy: the fight against it threatens constitutional values more than organized crime itself.
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Police researchers agree that although what has been said so far derives from the nature of police forces, it is worth noting that there are substantial differences in national emphasis. The decentralized Anglo–Saxon policing model, built from the bottom up, is much less conservative because the historical roots of centralisation are lacking. Its level of social acceptance is also higher. However, this model also has a lot to learn from centralized law enforcement structures which have their roots in the first examples of public administration on the continent stemming from the seventeenth century. 2 Municipal police, it seems, are much more capable of cooperating with local communities. In this structure, far fewer policing functions are exercised directly by the central government. In the United States and the United Kingdom, the executive power shares the responsibility for public safety with local communities much more than in, for example, France. Differences in models of policing lead us to a discussion of how far the universal traits established by researchers apply to the police of the pre-1990 party-state system in Hungary.
1. The Police in the State Socialist Era Studies published in the last ten years represent essentially two standpoints. Western authors, such as Robert Reiner, Loubet del Bayle, and Jean Claude Monet, describe the police forces of excommunist countries as a model in its own right. On the other hand, publications from the region itself—for example, from Hungary—like to describe these structures as a version of the continental system governed by centralization and military principles. 3 One thing is certain: police cooperation developed since 1990 between East and West has convinced experts that there are far more common traits than differences between the various national police forces, despite the different political structures. This is supported by the fact that cooperation has been successful not only between centralized police forces, but also with British and North American police forces. At the time of their birth, one-party states sought to reform their police forces through revolutionary programs. In line with the ideology of workers’ power, they declared that they would ‘socialize’ and ‘democratize’ the police. The Soviet model even indicated this in its name, calling the pparatus responsible for
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maintaining public safety the ‘militia’ rather than the police. Marxist philosophy did not tolerate traditions from previous eras or the principle of non-politicized public administration. Policing was considered a primary political mission and all manifestations of conservatism were rejected. The article by Bibó already referred to (see note 1) described the Communist party’s desire to force class functions on the police as one of the crisis symptoms of Hungarian democracy. Communist ideology, which strove for exclusiveness, subjected the entire public safety issue to the doctrine of class struggle. It also endeavored to present policing as something heroic, something which has to find a demonic enemy, which—as we all know—took the form of the class enemy. Moreover, this ideology rejected with equal intensity the relative independence of the police, subjecting them entirely to the direction of the party. This is why there was no law on the organization of the police in Hungary up to 1990. Naturally, as the real nature of this political system developed, the revolutionary mission turned into the armed protection of a small elite. The heroic struggle turned into the inhuman violation of rights, and direction of the police by the party led to a loss of professional standing. (This description does not apply to an equal extent to all periods of proletarian dictatorship.) It is important to note that, while some Eastern European countries had significant democratic traditions before Communism, others did not. Furthermore, some Central and Eastern European states had reached different levels of democratic legal evolution prior to Communist dictatorship. Where public law was closer to Western patterns, normative traditions were retained to some extent even in one-party dictatorships. The manner in which some socialist countries attempted to rationalize their economies also influenced the state organization, including the profile of the police. In countries where economic reform was considerable, political and state organization reforms also emerged, against the will of the governing party. The concept of crime affected the police’s work even more directly. In countries which could break away at an early stage from a schematic interpretation of crime and accept that crime is a natural mass phenomenon even in a socialist society (including the internal contradictions of the new social order), there was a far better chance of strengthening professional policing than in countries unable to break away from a primitive interpretation of crime (putting the blame entirely on capitalism). A further essential question is the quantity and quality of crime itself, and whether criminal statistics were published or 135
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classified as state secrets. Significant differences also existed in terms of the quality of criminology. The realistic evaluation of police activities was assisted by academic workshops aimed at protecting classical human values, the realistic description of criminal phenomena, restoring the value of guarantees in criminal procedure, and, where possible, citing political flaws as one cause of crime. Where criminology was able to take this approach, the police were able to use it to regain some lost professional pride. A general characteristic of totalitarian dictatorships is that they manage to keep criminal offenses committed by members of the public at a low level. One obvious reason for this is that the strong state, controlling even the everyday activities of its citizens, operated its whole apparatus as a police organ and minimized freedom of choice, so reducing opportunities to commit crimes. The absolute primacy of state ownership, the total lack of markets, and the use of public administrative direction in place of entrepreneurial freedom in the economy also had an effect on crime. Finally, totalitarian regimes also conserve poverty while providing social welfare at a low level and maintaining full employment. These circumstances are characteristic of full-fledged dictatorships. However, historical experience shows that totalitarian regimes are incapable of operating such ‘perfect’ systems over long periods. As the first breaks appear in the originally coherent logic of power, the erosion of the monolithic regime becomes inevitable. Today, we know that one indicator of a political regime’s breakdown is the gradual but constant increase in crime. (In Hungary, the number of reported crimes rose from approximately 120,000 in the early 1970s to 220,000 in 1989.) This increase in crime reflected a growing level of freedom in socialist countries. It is no coincidence that growth was greatest in Hungary, the ‘happiest barracks’, the country of ‘soft’ dictatorship. To present another paradox, the police of the state socialist era were grateful that traditional forms of criminal activity could not be eliminated, despite all the ideological promises. The investigation of burglary, manslaughter, or traffic offenses require a certain amount of expertise which could not be altered by any 4 party directive or party resolution. It is also worth mentioning that in post-Communist countries, the social acceptance of the police has been significantly influenced by the role the police played during the political changeover in protecting the old political structure or in safeguarding the peaceful nature of the political changes. Where party state administrations, having lost their credibility, hoped to retain their 136
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position by using force right until the last moment by calling in the police (even as late as summer 1990 in Prague), it did not contribute to strengthening respect for the police in the process of creating democratic institutions. Elsewhere, the administration, sensing that the end was near, used the tactic of concealing state security service actions as police actions restricting the political opposition. This was fairly easy to achieve, as in Hungary, for example, where the law enforcement agencies were unified as a single armed organization, and so were capable of hiding the political police inside Interior Ministry organs. The ‘Duna-gate’ scandal which broke out in January 1990, however, relatively quickly revealed this tactic. This contributed to the police regaining some lost respect. On the other hand, secret service methods lost their credibility for quite a long time, which also adversely affected criminal intelligence gathering. (This happened despite the fact that this critical field came to be regulated in accordance with the rule of law surprisingly quickly, resulting in Act X of 1990.) Nevertheless, the present low quality of intelligence work cannot be justified by events that took place ten years ago. Mention must also be made of the relation between the role of the police in the crisis preceding the political breakdown and the situation of law enforcement in the sovereign countries which evolved subsequently. The national police forces of the newly emerging states also took part in the war in Yugoslavia, and obtained the public respect generally enjoyed by heroes following independence, as in Slovenia. This phenomenon is a peculiar example of what was described above as the process of regaining ‘heroic status’.
2. The Team Consult Report The image of the Hungarian police in 1990 may be described in objective terms. The interior ministry of the new democratic government decided on a thorough evaluation of the Hungarian police. The Swiss company Team Consult was commissioned to carry out this task. It is worth quoting an evaluation document from 1991: Based on the examination, the foreign experts held that the strong points of the Hungarian police are its relatively high crime clean up rate, even by international comparison, the average acceptable level of safety, and the fact that there is a uni137
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fied national police force. Furthermore, the experts found that the police leaders are highly qualified, and that the force is characterized by the will to change and a range of ideas aimed at improvement. Another great advantage is that we possess reliable criminal statistical systems capable of providing information over long time periods.
This diagnosis cannot be doubted, but today it can be seen that some elements did not support reform, but instead argued to conserve existing conditions. Presenting a unified police force as an advantage obstructed all efforts towards decentralization—in a different context, however, the evaluation called attention to the dangers of overcentralization. Furthermore, the highly qualified leaders had no interest in sweeping reforms, and so they used their experience to rein in reformers, often not only to protect their own position, but also because this was in accordance with their best knowledge. The traditions of unified police and prosecutor’s criminal statistics, dating back to 1964, are also valuable, but their existence contributed to the maintenance of an extremely limited statistical perspective, which hindered all other methods of realistic professional evaluation. Among opportunities for improving the police, the Team Consult report described a number of positive social changes which can drive reorganization: the opening of borders, which made it possible to obtain knowledge about Western experiences; increased international support; the transfer of advanced techniques; the improved relationship between the police and the community; the fact that the atmosphere was right for enforcing preventive strategies. Today, we know that, in addition to its advantages, there were significant disadvantages to the opening of borders as well, which strengthened the preservation of old formations. Proximity to the community was not manifested in cooperation—instead, the public, faced with the threat of increasing crime, wholeheartedly supported the idea of a strong police force. In this atmosphere, prevention found few supporters. The weak points, in the opinion of Team Consult, were the lack of a comprehensive strategic program, unclear chains of responsibility in the police leadership, underdeveloped human resource policies, low salaries, management problems, low motivation in the ranks, bad communications, and outdated equipment and technologies. These difficulties still exist; indeed, some of them have become worse. Among disadvantages, the report mentioned increasing crime rates, worsening public security, budgetary restrictions, the lack 138
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of coordinated action, and the draining away of the best officers. The foreign experts expected coordinated action from the government’s public safety strategy, but this is lacking even today. As regards the ‘brain drain’, the dangers signaled in 1991 have become sad reality in the meantime. The average age of police personnel is 32 years: middle-aged officers with great experience are almost entirely absent from the corps; professionals from whom policing could be learned are simply not present. Despite the fact that since 1992, basic police training has increased to two years and a secondary school diploma is a general precondition, the educational background of personnel has worsened. The profession is unattractive and has no ability to hold onto staff.
3. Reform or Evolution? Based on the above analysis, we may proceed to examine what has happened to the Hungarian police during the past ten years. It is clear that two different types of modernization efforts have developed, the first based on reform, the second on evolution. The reformers are primarily theoreticians, academics who, in the course of the political changeover, were appointed to various influential positions within the police, despite being without previous practical experience. Their efforts can be expressed in terms of three slogans: depoliticization, decentralization, and demilitarization. This infers a negative program, emphasizing what the police should not do and what should not happen. Some ideas also carried a positive message, however. Depoliticization was to be achieved by declaring the need to improve the professional quality of police work, in addition to separating the political and the professional. In the framework of decentralization, they planned to achieve municipal policing, and the distinct division of work among police services, justifying the maintenance of centralization in certain areas. Demilitarization strove to abolish military structures where they posed constitutional problems, violating the principles of the rule of law and the separation of powers. In criminal policing it is wholly unacceptable that obeying orders enjoys primacy over the law. These individuals defined policing as part of public administration and wished to have it restored to the general system of 5 public administration. Furthermore, the reformers believed that
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with democracy, the rule of freedom had arrived, and they had no doubt that human rights would take their due place above all other values in society. As most of them were lawyers, they knew that the normative basis of reform also had to be established. They had hoped that this would be a rapid process and planned to introduce the law on the police before the new Parliament in 1990. They expected that this legislation would place restrictions on the police’s use of force. Their program contained the strategic transformation of police powers, organization, and operations. For this purpose, a detailed condition-analysis was necessary. The aforementioned Team Consult, which had vast experience, was appointed to carry out this task. This idea received financial support from several European governments. The evolutionists also wanted a modern, ‘European’ police force. They saw the time of the political changes as a period of uncertainty within the police, and so defined their task in terms of three main objectives: functioning, self-confidence, and discipline. Both government politicians and police leaders followed these principles. They took account of rising crime rates and believed that the corps, which had lost its self-respect, should not be bothered by constant reforms. They expected professionalism primarily from the police leadership, which would ensure the disciplined execution of tasks by means of orders and control. The primary virtue of anyone under command is obedience, and certainty is given in exchange. Solidarity and cohesion should be strengthened, as these reinforce self-confidence. This practical position also recognized the need for a thorough evaluation because, they hoped, parliamentarians would be convinced by the conclusions of respected foreign experts about the importance of investment in the police. They were not disappointed as one of the first findings of Team Consult was that Hungary should spend more on security. The evolutionists lacked a long-term plan for developing the police and tried to solve difficulties by organizational means, the majority of which affected the force’s central apparatus. Having described the two schools, the question remains: which standpoint has been successful in realizing its aims?
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4. Development of the Police between 1990 and 2000 Simply stated, the evolutionist position succeeded over the reformist. According to the evolutionists, changes in political structures do not require the fundamental transformation of police organization and operations. Increasing effectiveness is a constant responsibility, but it may be achieved gradually, without hazardous modernization programs uprooting the whole organization and eventually endangering the protection of society. Technical modernization, however, is necessary; moreover, the number of personnel and police wages have to be increased. The Hungarian police have taken this course and there are no signs indicating that they wish to deviate from it. There are numerous reasons for the victory of this cautious development. When discussing social transformation, a distinction should be made between reform of the political system and modernization 6 of the state organization. The creation of a constitutional democracy means a radical change. A single impetus can make possible the functioning of political parties, separation of political and state activities, free elections, the parliamentary system, ensuring the independence of the judiciary, and establishing local government. In Hungary, this process hardly took longer than six months. On the other hand, any transformation of state administration requires a lengthy process of professional preparation, while the system of public administration itself has to take account of daily needs. The training of personnel to be ready for a changed set of requirements can take years, even decades, if it requires new ways of thinking and ethics. The future of the police should be placed in the context of reforming the state organization rather than the transformation processes of the political system. On the nature of the political changes, the Hungarian Constitutional Court has said: The political changeover took place on the basis of legality. The principle of legality places the following requirement on the rule of law: unconditional enforcement of legal norms concerning the legal system itself. The Constitution and fundamental laws, introducing revolutionary changes from a political perspective, came into being by complying with the legislative rules of the previous legal system, which was formally 7 unobjectionable. The old laws remained in force.
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This has several consequences regarding the activities of the police. First, the provisions of the Constitution were new only concerning the basics of the political system. It left several branches of the state organization unaffected, in compliance with the logic of peaceful transition. This is most visible in the case of the police, as the amended basic law (which entered into force on 23 October 1989) regulated the police in the same category as the army, declaring that the policing model had remained unchanged since 1945 and strictly separating the police from civilian public administration. Secondly, regulations defining the framework of policing activities continued to operate in terms of previous normative solutions. This is particularly true in the case of criminal procedure, the reform of which has begun but the new code of criminal procedure has still not entered into force. The old law would not have allowed reform of the police. The passing of the new police act in 1994 did not change anything in this regard, as it could not influence the constitutional position of the police nor the legal conditions of its operations. Consequently, we can say that only a new Constitution would be able to restart police reform. (This was the scenario in Spain, where, following the changes in 1975, the new Constitution was passed in 1978 while a new police act was only passed in 1984.) In order to see quality police reform, the whole of the penal code, the code of criminal procedure, and parts of public administrative law relating to policing would need to be reshaped. The legal conditions of police reform were lacking in 1990, and they still are today. So far, no government has taken a decision to transform the police. While they have taken account of the reasons already mentioned, there may be further reasons. The first coalition government viewed the police as servants of the state socialist system. However, it was impossible to fire thirty thousand people at the same time. (There was no ‘West Hungary’, for example, where experts with experience in democratic policing could be found.) It was supposed that one good remedy for mistrust in the police was to keep the unified, centralized, and military force under strong government control. In October 1990, however, when it proved absolutely incapable of dispersing the taxi-drivers’ blockade, which paralyzed the whole country, the police received strong criticism from the government. The following summer, the coup in Moscow convinced the leaders of the young democracy to postpone any form of police decentralization to the distant future. (Such possibilities of modernization were to be considered in ten or fifteen years, when the situation had improved.) The outbreak
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of war to the south of Hungary required the concentration of strength among the armed forces protecting internal order and security. (This is why the reform of the border guards was postponed.) Crime rates rose by 51 percent in 1990, and by another 29 percent in 1991. In 1995, it exceeded the critical level of 500,000 crimes. Prior to 1990, the figure hardly ever reached 200,000. Criminal offenses also became more serious. The number of homicides increased, as did organized crime and, along with it, the illegal drug market. Bombings were now on the agenda, too. The population, used to late-Kádár era tranquility, was shocked by this crime wave. Everyone expected a breakthrough from strong police action. Public opinion supported the government in maintaining a powerful and centralized police force. This was the moment when demands for much-longed for freedom were replaced by demands for security, while nostalgia for the modest tranquility enjoyed during the single-party era emerged. Political institutions were functioning well, the economy began to improve, but there was a crisis in public safety; and a crisis is not an appropriate time for reform. The executive has been maintaining a crisis management policy on crime for the past ten years. Essentially, this means expanding criminal sanctions and demanding severity from the judiciary and the quantitative development of law enforcement, deeming human rights guarantees as inappropriate for the time being, and being sympathetic towards all solutions that extend police powers and freedom of action. Instead of carefully thought out legal reforms, frequent amendments of the penal code are on the agenda. When signs of reform appear, they are regularly followed by delays. The main characteristics of current crime policy are: programs are always designed for the short term; there is no public safety strategy; alternative solutions familiar in advanced democracies are neglected; and both social and practical measures of crime prevention are overlooked. This policy interprets effectiveness in terms of falling crime rates, and its main tool is more effective law enforcement. It places great emphasis on improving statistics—because police efficiency can only be measured this way—and on threatening those lagging behind with deteriorating indicators. Crisis management plans require quick results which can be exchanged for votes at election time. Instead of a consensus-based public safety policy, this issue tends to deepen confrontation between opposing political forces. It is becoming increasingly harder for law enforcement bodies to maintain loyalty to the state and political neutrality at the same time, particularly in local municipalities where opposition parties form the majority. Com143
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promise, which is essential for reform, is absent. Police generals and colonels are once again experiencing the uncertainty they felt around 1990. It seems that changes in government necessarily mean regular changes in police leadership. Reform presupposes a clear distinction between the political and the professional. The evolutionist standpoint, on the other hand, requires close cooperation between the two spheres. One of the first steps taken by the new political regime was to separate the police from the Ministry of the Interior. The main reason for this was to separate the political and the professional. This was worthy of the ideals of the rule of law, but its realization was not successful because of the centralized and military structure of the police. Moreover, the direct political control of the police has taken different forms at various periods. When the national police chief was a strong figure, the Minister of the Interior could direct the work of the police while leaving the ministry apparatus ‘out of the loop’. When a relationship of this kind ended with a change in government, changes in police leadership were put high on the agenda. Today, the Minister of the Interior is a former national chief of police who is able to enforce a strong government policy on police functioning. According to this policy, the time is not yet ripe for reform. The police were unprepared for substantial reform both in 1990, and later. Police officers experienced the political changes as a crisis rather than recognizing the new opportunities offered their profession by the political changeover. (Scholarly efforts at that time may also be held responsible for this. We wrote about the crisis first and only later about reform. At that time, we were unaware that the authoritarian police leadership would only accept academic views on the police in a selective fashion, preferring those supporting their own purposes and ignoring everyone else.) Arguments were brought forward as to why maintaining the present structure was justified. Centralization is the sole assurance of professionalism; furthermore, it makes possible an increase in central budgetary support. The financial well-being of police personnel depends on how well the force is able to coordinate with the army, which has an excellent ability to enforce its own interests. The view is that civilian public administration is characterized by disorganization and ill-discipline, and so all ideas aimed at demilitarization jeopardize the functioning of the police. Municipal governments are weak and poor; on top of that, the opposition is in the majority in many municipalities, and they cannot be entrusted with further policing responsibilities. The police will only
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be able to gain social respect if they show strength and unity. Indeed, public opinion in large part wants it this way. Rising crime also prevents the demilitarization of the police— community policing offers no solutions. The only remaining option is slow motion and cautious development. Ten years ago, supporters of reform believed that Hungary’s membership of the Council of Europe and integration into the European Union would require qualitative changes in policing. This was a mistake. International influences have in fact helped to conserve the existing situation. Centralized organizations are the most appropriate for the kind of close cooperation required by Europol. This situation would only change if a European federal police force were implemented, but the chances of that are very slight. 8 There is no organization that could offer a universal recipe—on the contrary, in several advanced democracies, the police are following a course similar to the Hungarian police. Recommendations that would grant special authorization to intelligence and investigation in the framework of the fight against organized crime provide supportive arguments to evolutionists who believe that time has passed classical penal law guarantees by. Reformists urge police reform particularly to protect guarantees. It seems that they are the minority also in this regard. During the period of fundamental political changes, we perceived the causes of police abuse as lying in the mechanisms of dictatorship. Supporters of a strong police force might have been relieved to find that brutality is not alien to policing in a democracy, and at times it is even accepted as a necessary evil. If every now and then an abuse occurs, public opinion is extremely understanding. Reforms protecting fundamental liberties would weaken the democracy’s ability to defend itself. As regards police corruption, however, it has to be eliminated by all means. The best way to achieve this is to enhance internal controls within the police, to strengthen discipline, to reinforce the police within the police—its internal security organs. Only a centralized military organization, according to the evolutionists, is able to make effective use of these methods. In Hungary, the traditional approach to public safety has remained, the origins of which date back to the consolidated period of the party state. According to this approach, public safety is a product of the ‘caring state’, which it presents to the population as a kind of gift. Its main characteristics are the absence of danger and low levels of criminality. The most important tool for protecting public safety is the constant presence of the authorities, as well as the legitimate use of force. Put another way, protecting public security is a state monopoly. Reformers were unsuc145
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cessful in their attempts to put an end to this state prerogative, although the first signs were encouraging. Expansion of private ownership, the fastest privatization in the region, and foreign investment appearing in Hungary well before the other countries of the region all indicated the accomplishments of a market economy. On the market, however, even safety becomes a product. Private policing is founded on this basis, and it has become an equal partner of state and local police forces in many developed countries. 9 In Hungary today, selling safety has also turned into a profitable venture, whether it is offered by personal- or wealthprotection firms or private detectives. The commercial court of registration has registered about 3,000 such firms. The number of employees in private security exceeds 60,000, while the police only number 42,000. This high number of security employees constitutes a major problem. Many of these firms do not offer a quality service. The owners, in the hope of quick money, do not pay enough attention to training, and hire inappropriate persons on very low wages. Nevertheless, poor-quality providers regularly win public procurement tenders because government commissions are reluctant to pay a higher price for quality. One gets the impression that the state is not interested in having a proper private security sector able to act in concert with the police. At the same time, private businesses still seek stable state contracts, and this naturally poses a corruption risk. The misconduct of private companies, the slightest suspicion of their involvement in the illegal economy, strengthens the state monopoly on pubic safety. There is simply no market challenge which might urge reform in policing. At the beginning, private security firms could lure away the best professionals from the police force with the promise of high salaries, but this has ceased as the market has become overcrowded. (One more reason not to increase police salaries.) Despite the fact that a private security firms’ chamber has existed since 1998, the situation has remained unchanged. Good public safety in the party-state era was supplemented by the citizens’ sense of security, supported by full employment and modest social benefits to which everyone was entitled. People lost their ability to stick up for themselves and social solidarity also disappeared. Local and social systems of crime prevention simply cannot operate without these civic virtues. The National Council on Crime Prevention, established in 1995, is nothing but a government office. It has yet to launch any large or successful programs. Local governments are passive: the protection of public safety is not their task and they receive no financial support for it.
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Their cooperation with the police is no more than the nurturing of personal contacts. Financially more capable local governments support the police with donations, but these are not sufficient to bring about qualitative change. The Law on the Police made it possible for local governments to form public safety and crime prevention committees jointly with the police, but only a few such initiatives have been realized. The police have not been confronted with crime prevention concepts that would force them to transform their operations. However, the police have initiated their own prevention activities which harmonize with present policing philosophy. The National Civil Guard Association is present in almost every town or larger village; their members number around 40,000. Their honorary president is a retired police general; their volunteers patrol jointly with police officers in order to improve public safety in public areas. The Association has found a great partner in the centralized police. Reforms cannot be expected to start from here. On the contrary, efforts have to be made to ensure that the Association will not take over the functions and methods of the authorities. Public space supervisory boards, directed by local governments, could serve as the basis for community policing. Today, however, neither their functions (guarding public spaces and enforcing parking regulations) nor their powers make them capable of this. The finances of the police were characterized for a long time by deficit and debt. In 1991, the police received 4.1 percent of the central budget, while in 1997 it could count on only 2.3 percent. Financing is the weakest link in the centralized system: every indicator shows that such a huge organization is prone to squandering. Spending begins at the top of the pyramid and, as we go downwards, there is less money to meet needs. Europe’s most modern police palace—in Budapest—demonstrates this perfectly: it is already too small for the numerous police organizations operating within its walls. Most of the local police stations around the country are in such a miserable state that the Parliamentary Ombudsman for Human Rights called attention to the fact in her report of 1998. The central budget can manage barely more than keeping the police going and the periodic consolidation of the deficit. The characteristics of a centralized organization are also revealed in the development of the police. The police have been successful in such large central investments as procuring a computerized system for fingerprint identification, or creating a laboratory for registering DNA profiles. Nevertheless, there are constant difficulties in ensuring daily operations. Living and working
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conditions for police officers are not improving. Modernization, which only foresees technical development, will be faced with two obstacles. The first is central budgetary constraints. The other is the lack of development planning that may make technological investments carelessly implemented and very expensive. Furthermore, only a well-trained staff is able to adapt to new technologies. Professional training has created many problems for the evolutionist school. Training only works well if, together with a clear vision for the future, it can be known what policing needs will be in 5 or 10 years. A further precondition for training is the synthesis of practical experience, which makes it possible to teach the knowledge and skills necessary for police work. The development of contemporary professional training also takes a long time. Schools may only establish their own profiles over a period of decades. This cannot be achieved without scientific analysis of police operations. The last decade, however, has not been in the least appropriate for establishing professional training schools. Uncertainties center around three key issues. First, it had to be decided whether police officers should be trained in military academies or in civilian institutions of higher education. Literally, over a period of ten years, students’ uniforms changed three times—from uniforms to civilian clothes back to uniforms again. Today, we are witnessing the strengthening of the police’s military character, while the Police Academy is an accredited autonomous institution of higher education. Secondly, the levels of police training and the relationship between individual training institutions should be clarified. Presently, training takes place on two levels, with lower ranking officers studying in vocational schools and officers being trained at the college. A working relationship between these schools is completely lacking. This problem was worsened by the fact that vocational schools were under the supervision of the police, while the police academy belonged to the Ministry of the Interior. Recently this situation changed, as the Ministry of the Interior took over all police training institutions. The third obstacle is that training concepts should be integrated into a comprehensive human resources policy, which could provide an answer to what the ratio between lower and higher ranking police officers should be. (In Hungary, this differs significantly from the Western European model: one-third of personnel are higher-ranking officers compared to the average 10–12 percent seen elsewhere.) It seems that solutions rejecting reform have not been able to provide long-term opportunities for those choosing the police as a career. The goal of professionalizing the police still lies ahead. 148
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5. The Police of the Future The past ten years have also seen success in respect of laws governing policing, including police organization and activities. Nevertheless, there have also been failures. Unresolved problems persist, and these need to be addressed during the first decade of the next century—hopefully, at the same time as Hungary becomes a member state of the European Union. Let us look at the successes first. The police has at its disposal all legal means necessary to pursue its activities effectively in a democratic country under the rule of law. The Law on the Police was passed by Parliament in 1994. Regulations concerning covert information gathering comply with European norms. These rules, in addition to the principles of necessity and proportionality, also require judicial authorization for the taking of covert measures which infringe human rights. International treaties on assistance in criminal investigations, the fight against terrorism, and international policing cooperation are all incorporated into Hungarian law. A law on suppressing organized crime has been passed, which provides a legal basis for witness protection, use of covert investigators, and surveillance of vehicles. Hungary, as a member of the Council of Europe, also heeds Council of Europe recommendations and, as a candidate for EU membership, is harmonizing police-related regulations on an ongoing basis. The police have retained their operational capabilities and have been able to keep crime under control: at least, the dramatic increase in crime rates has come to a halt. Moreover, there was a fall in the crime rate in 1999. Social differences and pressures have not increased, the delicate balance in society has been successfully maintained, and a sense of public safety has made further political, social, and economic development possible. Parallel to the rise in the demands made by the police, total police manpower has increased, wages have increased more than the national average, admission requirements have been tightened, and the period of training lengthened. Social acceptance of the police has strengthened, and people recognize the efforts made by the police to combat crime. An opinion poll carried out in Budapest showed that citizens blame above all the government for deteriorating pubic safety, and reproach the courts for their slowness and the poor performance of the prosecutor’s office, but give much better marks to the police.
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The police also have a number of technical developments to their credit: for example, computerized databases and automated identification systems. International partnerships are constantly developing, and Hungary is a reliable partner for police forces in neighboring countries. Organizational and technical developments required by EU norms are being implemented on an ongoing basis. Hungary is a participant in the ‘Police and Human Rights 2000’ program within the framework of the Council of Europe. With financial support from the Phare program, there is a British–Hungarian cooperation project aiming at examining corruption in the police. We are part of an initiative to create a universal code of ethics for European police forces. The following problems persist. No progress has been made concerning the most serious manifestations of organized crime: assassinations, bombings, and murders. As far as small and medium crimes are concerned, the police have yet to develop effective crime prevention schemes involving the general public. Police performance is measured rather onesidedly in terms of criminal statistics alone, while hardly any attention is paid to changes in the public’s sense of security. There is no regular polling of victims of crime, which could provide information on the number of unreported crimes. Explanations must be provided for failures to solve crimes which pose a particularly serious threat to society, are carried out in an organized manner, and are capable of disturbing the ordinary workings of the economy. This need derives from the fact that, in recent years, national security and law enforcement agencies have made a special effort to come to grips with crimes of this kind. These agencies have also striven to effectively utilize the covert information gathering necessary for improving investigations. However, since the vital cooperation between these organizations is lacking, there is a lot of duplication, energies and resources are wasted, there is no synthesized analysis of collected evidence, and investigation is not subject to proper legal supervision, although this should be a task for the prosecutor’s office. This situation calls for a broad reform of criminal procedures. The structure of the police does not reflect qualitative differences between police tasks, while centralization is excessive and is the only structural principle. Reorganizations, as well as programs launched but never completed, are frequent. There are no long-term development plans. So far, no government has been able to put forward a concise strategy on public safety. On certain issues, the police are left to their own devices, while in other mat150
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ters they do not have the necessary independence: for instance, organizational development requires government action, but deciding on which cases should be investigated should be the task of the prosecutor. As there is no clear human resources policy, police work is still something of a world apart, professionally speaking. Due to an earlier spate of officers leaving the force, only a few experienced professionals remain. Suspicions of corruption are frequent, and instances of police brutality are not usually followed by convictions. There is a kind of cynical solidarity within the force, but a truly humane code of ethics is still lacking. Police officers do not have a sense of security, due to the fact that they have to carry out the orders of their superiors, and so lack the ability to act on their own initiative. The whole present system is characterized by a very low level of efficiency. A review of strengths and weaknesses leads to the conclusion that long-awaited reform is inevitable. The only question now is what are the chances of profound change on the verge of the twenty-first century. Proper attention must therefore be given to the factors, already mentioned, which have prevented transformation in recent years. First, there is no sense in debating whether the police’s present state may be explained in terms of external factors, or the defective domestic affairs policies of previous governments. In the Hungarian framework, the executive power has far too great a role in protecting public safety. Developments in Western Europe indicate that this administrative monopoly is being reduced in at least four ways: 1. The first is the international integration of policing, which is reining in national sovereignty somewhat. 2. Through the strengthening of local government, more and more powers and competencies, many of which are policing functions, are being transferred from the central pubic administration. 3. The increased role of private security firms is creating a market in personal safety, which also means declining official powers. 4. The strengthening of the civil guard organisations is turning important state tasks into civilian ones. 10
Since these processes have not yet gained strength in Hungary, the government has been right to look mainly to its public administrative organs, such as the police, for the protection of public
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safety. On the other hand, no government has been willing to relinquish its central role, considering the 60,000 or so lawenforcement operatives under its control as an extremely comforting instrument. Nevertheless, one fact remains: these forces have been used for the benefit of the community against threats to public safety. In the ten years since the changeover, many good decisions have been taken and efforts to improve policing should be recognized, particularly as they form a basis for future development. Furthermore, the way forward is that of compromise and cooperation. It is important to underline the fact that, unless we are able to agree on a common assessment of progress made so far, future development will be extremely difficult. Two extreme positions characterize the current debate. One takes the view that slow and cautious progress can be characterized as ‘reform’ and rejects overall transformation; the other portrays law enforcement in 1990s Hungary as the rebirth of the police state and calls for its destruction by some sort of ‘revolution’. The following recommendations by contrast seek the middle ground, presenting ideas of police reform which may hope for success by virtue of their harmonization with reform of public administration and the judiciary. During the drafting of the final Hungarian constitution, legislators should pay due attention to determining the place of the police in the constitutional order. In contrast to the current situation, this must be within the framework of public administration. This would be the first step in the process of demilitarization. A second phase of demilitarization would be the transformation of the service status of police officers, giving them civilservant status. Pseudo-military status should be terminated. A long-term public safety strategy, covering 10–15 years, is also needed. This planning process should build on the consensus of all political parties, ensuring that protection of public safety is exempt from political wrangling. This strategic program could take the form of a parliamentary resolution (an act of parliament only binding the parliament itself). Local public-safety tasks should be defined as the obligatory responsibility of local government. Local councils could receive central budget financing in order to implement these tasks. This could form the basis for community policing in Hungary. Reform of criminal procedure should aim at creating a criminal investigation branch of the police, subordinated to the prosecutor’s office, whose tasks would include gathering information and
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executing coercive measures, while at the same time duly acknowledging the leading role of the prosecutor in the investigation process. This would require that the criminal justice system be made subordinate to the law alone, separated from the executive power, and given adequate autonomy. This would also be the most effective way of fighting corruption and ensuring the transparency of the public administration. Cooperative leadership structures should be established within the police force. This is an indispensable precondition for the professionalization of the police. Police officers’ salaries should be significantly increased, while every effort should be made to restore respect for the police. Decentralization would offer supplementary resources and make financial management more effective. A professional Hungarian police operating under the rule of law will be able to perform all the tasks expected of it within the framework of Hungarian membership of the European Union.
Notes 1 Bibó, I. Válogatott tanulmányok [Selected Essays]. Vol. 2 (Budapest: Magvetõ, 1986), p. 41. 2 A. Decocq, J. Montreuil, and J. Buisson, Le droit de la police [Police law] (Paris: Litec, 1991), p. 62. 3 J. C. Monet, Polices et sociétés en Europe. La documentation française [Police forces and societies in Europe. French documentation] (1993), p. 71. 4 G. Finszter, A rendõrség és a közbiztonság, kelet-európai tapasztalatok [Police and public safety, Central European experiences]. Proceedings of an international conference, Budapest (1993), p. 41. 5 L. Korinek, ‘A rendõrség modernizációja’ [Police modernization], Belügyi Szemle (February 1992), p. 3. 6 M. A. Recasens, Pays en transformation [Countries under transformation] (Strasbourg, 1996). 7 Constitutional Court decision no. 11/1992 (5 March 1992). 8 M. Sabatier, ‘Europol, un embryon de police européenne?’ [Europol: the embryo of a European police?], Revue internationale de criminologie et de police technique et scientifique, no. 3 (1999), p. 322. 9 P. M. Stenning, Les pouvoirs et les responsabilités de la police privée [The rights and responsibilities of private police], Strasbourg, 24–26 November 1999. 10 M. A. Recasens, Le contrôle des pouvoirs de la police [The control of police powers], Strasbourg, 24–26 November 1999.
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Models of Policing
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Policing a Diversity of Cultures: Community Policing in Transforming Societies Alan Wright
For the observer of the development of social, political, and economic conditions in Europe, these are interesting times. Many communities across Europe are in the midst of radical change. In the new democracies of Central and Eastern Europe, the fall of communism has heralded a transformation from political and economic centralism to democracy. It seems inevitable that a degree of social turbulence will characterize these transformations. Tensions will undoubtedly appear as the new democracies move to more pluralistic models. Civil society in these states seems likely to represent a rapidly developing web of associations with increasing cultural diversity and for those states which accede to the European Union, a degree of mobility and social interaction which has not been experienced in recent years. This paper will explore the problems and difficulties of policing diverse societies, drawing upon the concept of community policing and its potential application in the transforming societies of Central and Eastern Europe. Cultural diversity produces a range of dilemmas for social policy, deriving from the variety of social, political, and economic meanings of ‘community’. The factors that affect development are at once both fragmenting and coagulating, because they operate differentially at the micro- and macro-levels. Economically, at the micro-level, individual consumers themselves are a form of community. Socially and politically, again at the micro-level, groups form ‘communities’ which produce a variety of demands upon public services. At the other extreme, at the macro-level, citizens of states are members of a wider community, including that represented by the European Union or by the 40-member Council of Europe. The practical implications of these very different conceptions of community are important to public sector institutions, not least to police, because they affect understanding of the ways in which such communities can be served.
Policing a Diversity of Cultures: Community Policing in Transforming Societies
Properly defined, community policing seems best understood as the range of specific techniques that the police and the public use to work in partnership at a local level. Used in this sense, community policing is a micro-level concept: a concrete effort to promote social justice through communication and to mobilize social resources within an identifiable group of people (Bayley 1994). However, the idea of ‘community policing’ will only take a certain amount of weight. It should not be regarded or used as a managerialist technique to control a whole community or to provide intelligence for the state. As the term will be used in this paper, it is an approach that depends on the willingness of the police to relinquish some of their power and authority, and upon the ability of the public to participate in the development of justice within their communities. The degree of integration and participation will in turn depend upon the extent to which social, political, and economic conditions have developed to make community policing possible. First, in developing arguments about the relationship between cultural diversity and community policing, attention needs to be focused upon the ambiguities and tensions inherent in social relationships. Here, particular reference will be made to the ‘illusions of belonging’ that affect the viability of community policing in societies which are so fragmented that the very idea of community seems to find little hold. In developing these arguments, it will be necessary to make some conceptual points about the spatial effects of boundary and location upon the idea of community. Secondly, social relationships will be discussed in terms of ‘illusions of association’. It will be suggested that the rise of individualism, problems of class, and the decline of public and political space all negatively affect the possibility of community cohesion. Thirdly, the potential effect of these ambiguities and tensions upon a range of policing strategies will be assessed. Some critical ideas about the viability of community policing in the new democracies will be elaborated on this basis. In developing a critique of community policing as the key strategic driver for policing, it will be necessary to discuss a key dilemma: that is, trying to reconcile the requirements of universality of treatment under the law with local policing requirements which take account of cultural (ethnic or religious) difference. On the one hand, the responsibilities of state mean that police should adopt a professional approach to policing based upon the primacy 1 of law and universal principles of human rights. On the other hand, they should serve particular communities with particular
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needs. It will be suggested that there are ways in which the apparent dilemma between the requirement for impartial and universal application of law and the partial requirements of diverse communities can be resolved. The strategies which are chosen should depend upon the extent to which police apply and conform to law and the extent to which socially and culturally diversified communities have succeeded in developing the conditions that can make real participation in community policing a possibility. The resolution of this dilemma is not only of importance to the emerging democracies. Recent events in policing in Britain and the US indicate that the twin imperatives of impartial and universal law enforcement and of meeting the needs of diverse communities is as pressing a need in the ‘older’ democracies as in the new.2
1. Illusions of Belonging: Borders, Locations, and Mobility In the last two decades of the twentieth century, the conception of borders and boundaries as definitive of political, social, and economic identity has become ever more ambiguous and paradoxical (O’Dowd 1998). National borders, over which the most bloody conflicts of the century have been fought, seem to be a permanent feature of the political landscape. They seem to be permanent, at least while the nation-state exists, because they use territoriality as a universally defining form of political association. All nation-states have borders, although control methods vary. The Berlin Wall is down and access to the East is now virtually unrestricted. However, despite the European Single Market and the incorporation of the Schengen acquis in the Treaty of Amsterdam (1997), the reality is that a united Germany will continue to have borders for the foreseeable future, as will other states of the European Union. For the European Union as a whole, the border-concept is part of real-politik. Indeed, Europe is becoming so sensitive to its own territoriality that it demands the same sorts of immigration controls and buffers as those of a nation-state. Despite agreements about international co-operation and the supra-national legislation that results from pooled sovereignty, borders will still have a potential for conflict. Issues of religion, ethnicity, and nationalism in the Balkans, Northern Ireland, the Middle East, and Africa should warn us that it would be premature to disregard the idea
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of territoriality in favour of some concept that is less defining of national belonging. Economic globalization, on the other hand, has meant that the very concept of a border has become fragile and elusive. Multinational organizations and international markets are becoming less and less sensitive to the policies of individual nation-states. If one national environment does not suit, a multinational organization can take its investment elsewhere. For the markets and for international business generally, allegiances are beginning to turn more upon the extent to which goods, services, and money can flow than upon the internal or foreign policies of the political parties of particular states. At the level of individual consumers, people are increasingly likely to purchase goods which are not sourced in their own country. In this sense, in a world of increasing materialism, people are now voting with their money. Politicians, unless they take a stance of radical nationalism—which many by their support of free trade are precluded from doing— are increasingly restricted in justifying their predominant role as a nation’s economic decision-makers. This phenomenon will increasingly apply to the transitional states of Central and Eastern Europe as their economies develop, particularly for those states which join the European Union. There is certainly an identifiable range of social tensions, push- and pull-factors, which are increasingly affecting state-wide or nationalistic ideas of belonging. Increased mobility of populations, particularly where it occurs for economic reasons, seems likely to put increasing pressure upon ideas of a cohesive community based upon the nation-state. The tendency for comparatively large groups of people to move from one area or from one state to another for reasons of employment or housing (not necessarily for reasons of political oppression), often leads to difficulties of integration and acceptance into a host community. Negative indigenous attitudes to Turkish Gastarbeiter in some parts of Germany and to people of Asian, Afro–Caribbean, or Arab origin in Britain, France and elsewhere (despite many generations of residence), seems to militate against the formation of cohesive nationally defined communities. From another perspective, however, there are countervailing trends towards certain commonalties, in whichever society one finds oneself. For example, Ritzer (1995) suggests that societies are becoming increasingly “McDonaldized” in shifting towards common cultural, economic, and consumer paradigms. If true, this would seem to suggest the possibility of the development of a wider conception of community. Although this thesis seems to be supported by evidence which shows the 160
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transnational acceptance of certain practices relating to fast food and other forms of consumption, it is not certain what the longerterm effect is. The similarities may be nothing other than superficial patterns of life that do not affect other, more deeply significant differences. Some real attempt at social network analysis is preferable to vague assumptions about the nature of community that often underpin claims about community policing. Although people always live somewhere, place is not necessarily defining of the community to which they belong. For example, in Britain and the Netherlands, there are identifiable extended Chinese communities which have closer links with similar communities elsewhere in the world than with other communities in the host countries. Similarly, communities from the Jewish, Indian, or Pakistani diaspora have links that define their communities in ways that are often stronger than residence or domicile. The Roma of Central and Eastern Europe have links which cross national boundaries. Unless representative associations are taken as the key channel to communities (which would perhaps be a more democratic approach) lack of systematic social network analysis to define communities on grounds which are not necessarily spatial, means that there are few effective tools through which the delivery of community policing or other public services can satisfactorily be planned to meet their exact needs. And such a systematic approach might produce antagonism in the communities themselves, particularly if it was thought to be aimed at ‘state-intelligence’ (on international control) which might work against the universal rights of groups and individuals within those communities. In a general sense, therefore, problems about borders and mobility of population blur the extent to which communities can be defined by where they are located. The effect of these problems is to produce a remarkable sense of uncertainty. Increasing globalization seems to encourage the idea that people belong to a wider community, but the continued existence of borders and of shared ‘national’ characteristics reinforces perceptions of national belonging. At the local level in highly developed pluralist societies, there is a struggle to identify cohesive communities and to establish their precise location. Given these conflicting circumstances, it is difficult to see how community policing can work effectively if it relies entirely upon definitions of community based upon locational or geographical criteria. Indeed, in most cases across the world known to the author, there seems to be a tendency for the definitions of community which are applied by police to follow the organizational boundaries and structures of local police 161
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forces, rather than the objective conditions in the real environment. Alternatively, they operate by virtue of self-selecting individuals or groups who in some sense ‘represent’ their communities, although without the mandate afforded by democratic process (Morgan and Maggs 1985, 38–40).
2. Illusions of Association: Individuals, Classes, Relationships In Britain, as in most of Western Europe, there has been a shift away from the static culture of the 1950s based upon austerity and a low level of mobility between the socio-economic classes. This earlier lack of mobility meant that there was a comparatively high degree of predictability and social equilibrium. Although ‘golden age’ claims should be resisted, policing also seems to have been comparatively uncomplicated, being geared mainly to managing the status quo and dealing with low levels of crime in fairly stable local populations. From the 1960s onwards, however, other dynamics have become evident. There may still be a class system based on economic factors, but the decline of industrial society has given it different defining characteristics. No longer is the social environment sufficiently categorized by working-, middle-, and upper-class labels (Hutton 1996). Perhaps a better characterization of the social structure is that of an underclass and an overclass, with an uncommitted, confused, and fragmented bulk of the population situated somewhere between the two extremes (Hutton 1996: Morgan and Newburn 1997, 21). The underclass is generally excluded from economic, social, and educational goods, whilst at the other end of the spectrum a highly privatized elite overclass has worked out how to manage the system for its own benefit. Sandwiched between the two extremes is the bulk of society who form an amorphous class anxious about the future and their place in it. The disadvantaged underclass is primarily associated with street life, whereas the overclass is associated with business enterprise and protected housing. The middle is extremely vulnerable to pressure from both. If this somewhat pessimistic account of social relationships is right, there are important implications for perceptions of community. Although the fears of the anxious class may be met to some extent by inclusive approaches such as community policing,
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this activity is by definition unlikely to include members of the alienated underclass. This may go some way towards explaining why community policing so often fails in areas of poverty and social deprivation. Other indicators show that society in both the older and the new democracies is becoming increasingly fragmented. A primary indicator of such social fragmentation is the extent to which there are an increasing number of perceptions about what counts as proper behavior in the light of a wide range of radically different lifestyles. The increasing plurality and relativism of social life have consequences both for behavior and for attitudes to community. These conditions of uncertainty have become a fertile breeding ground for a new kind of nationalism. Although this reemerging racially, religion, or ethnically based nationalism may have little of the cohesion or collective virulence of that of the 1930s, in both the old and the new democracies, it is not merely sentimental. It is still a potent factor in the development of community consciousness and action. As such it has many dangerous implications for an impartial and democratic approach to policing. Community policing seems more at home when it is aligned to pluralistic communitarianism based upon collaborative principles. Etzioni has been a leading proponent of the communitarian thesis as an alternative to individualism, arguing that only a communitybased approach can provide the moral ground for social and political justice (Etzioni 1995). In the field of policing policy, Alderson has been an eloquent advocate for community policing based upon the principles of social contract, for much the same reasons (Alderson 1979). These approaches are encouraging to those who support the idea that policies should concentrate upon local communities defined by direct association between local people. However, there is a sense in which the interests of local communities can be in conflict with wider affiliations and obligations. This is particularly evident when centrally determined policies adversely affect local communities. Despite assurances of de-regulation and decentralization (which have characterized developments in some Western European states and may be extended to the new democracies), the hollowing-out of the state and the passing of power from the center to local authorities, masks a universal tendency for governments to be reluctant to give power. This ‘iron law of oligarchy’ also seems to apply at the supra-national level, exemplified in the tension between the centralized bureaucracy of the European Union and some national parliaments which are reluctant to surrender national autonomy and sovereignty. The tension between centralist and communitarian tendencies seems likely to continue, with 163
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continue, with implications both for international police cooperation and for the way in which local communities are to be policed. The full scenario has yet to develop. Problems of community are not confined to problems of tension between the individual and the collective or between localized and centralized administration. Another indicator of the effect of social fragmentation upon the possibility of community is the extent to which human transactions are becoming ever more characterized by single-episode encounters rather than by real and sustainable long-term relationships. For example, unlike older forms of shopping, it is difficult to build a real relationship with a person you may see only once at a supermarket checkout. At worst, the effect may not be very different to that when dealing with an automatic telling machine (Gutek 1995). Especially where demands are high, policing is increasingly likely to be characterized by such encounters rather than by real relationships between local members of the public and police officers who are known to each other and who have built a rapport that can survive certain levels of disagreement. A further indicator of social fragmentation is the increasing failure to secure public space as a forum where genuine human interaction can safely take place. In many cities, the perception that public space is hostile territory has replaced the Greek ideal of the agora as a place for political, social, and economic interaction. This idea is supported to some extent by small-scale research in the 1980s on fear of crime among elderly people in London (Police Foundation 1982). The study showed that fear of crime came more from uncertainties about open public space than from graffiti, broken windows, other damaged property, or potentially hostile congregations of youths on street corners. The frequent confinement of elderly people to fortified houses and apartments in cities may owe as much to this ‘agoraphobia’ as to a fear of specific criminal offences. Similarly, criticism of architects such as Le Corbusier should not concentrate upon the failure to provide reasonable conditions for life in high-rise blocks. It is easy to forget that this architecture was designed so that the public park space that surrounded the structures would encourage human association. The failure of this public space to become a resource for communities has been at least as great as the failure of the blocks themselves to provide the means for living upon a reasonably human scale. In Britain, community policing on estates based upon this concept has proved notoriously difficult because
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the possibility of ‘vertical’ community is so flawed. The development of similar systems of community policing in the state housing of the cities of Central and Eastern Europe will be no less difficult. Economic pressures exacerbate the pressures on communities at both the macro- and micro-levels. At the macro-level, the more pessimistic scenarios suggest that there will be continued pressure upon first-world economies, who will find it difficult to maintain standards of living in the face of increased competition. Combining this tendency with a real economic decline in the poorest nations could raise the potential for increased civil unrest and terrorism. This has obvious implications for policing in states that have minority populations from those countries. Increased polarization of incomes and an inequitable distribution of goods in many domestic economies may also militate against community cohesion. Already, the governments of most advanced nations are considering to what extent their social welfare and other public service programs are viable, in the light of sustained resistance to raising levels of taxation. Again this is a source of tension that will have implications for the idea of community over the first decade of the new millennium in the new democracies as in the old. Competition for public money could undermine a democratic approach to policing in societies that are deeply divided along socio-economic boundaries. The prevailing economic climate means that police revenues are likely to continue to fall in real terms. Choices will need to be made, within the so-called bestvalue agenda, and there may be considerable pressure from some quarters to reduce what might be seen as ‘soft enterprises’ in policing. This could hit community policing, public service programs and training, where it is difficult to show tangible results in the short term. Despite their strategic wishes, police may need increasingly to concentrate upon emergency and response policing to meet increasing public demands for service.
3. Policing Styles and Strategies How are these tensions to be resolved? First, it is important to recognize the tension which can exist between formal legal obligations and cultural needs and preferences. This provides a considerable dilemma for police. The debate amongst cultural an-
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thropologists in this respect has been significant (Wilson 1997). For example, the difficulties of reconciling multicultural conditions with the requirements of universal human rights is a key problem. Arguments for cultural relativism seem to imply that cultures are strictly bounded, with their own logic and values. No ‘objective’ means can be established, therefore, through which universal principles could be defined which apply across a range of cultures. According to Eriksen (1997), however, the globalization of capitalism and communications now means that cultures can no longer be seen as separate or ‘tribal’. He says: When former tribals now apply for mortgages, follow American TV series, take their higher school certificates, elect local governments, and are imprisoned for criticizing the government, it becomes intellectually and morally indefensible to seek refuge in the fiction of assuming that cultures are isolated and committed to their ‘proper logic’: political discourse has, to a great extent, become globalized. (Eriksen 1997, 49– 53)
If this is true, multiculturalism is universalist in its very nature. This point complements the claims of Locke and other contract theorists who suggest that taking benefit from common ‘goods’ implies a tacit acceptance of contract (Locke 1960). Drawing upon universalist arguments, Alderson (1998) has also emphasized the need for principled policing based upon such a contract, whereby the universal principles of human rights provide the key driver for an ethical approach for police in handling disputes and disorder, including those based upon conflicts with the authority of the state. The problem of operationalizing these universal principles is, for Alderson, to be found in the application of Kantian principles relating to the use of coercion being authorized only in cases where it is necessary to protect the rights of others. Coercive police action, also, is only just when it accords with the rule of law, itself a principle which is universal (Alderson 1998, 29–35). The primary strategy for police, therefore, in relation to retributive justice, should be the impartial application of the universal principles of human rights, in the case of Europe, those specified in the European Convention on Human Rights, 3 and of the domestic law which is commensurate and compatible with those rights. This implies a need for fairness in the application of the law, regardless of cultural, racial, or ethnic background. 4 However, police should not only be concerned with retributive justice. In some jurisdictions (including Britain), they are increasingly committed to restorative justice, whereby the retributive 166
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ideal (generally based upon adversarial legal procedures), is replaced by a restorative approach whereby the offence is defined in terms of its moral, social, economic, and political context. In these cases, the stigma of crime, it is suggested, can be removed by the possibilities of repentance, forgiveness, and restitution, rather than simply by punishment (Williamson 1997). Clearly, this opens up new possibilities for a form of policing which builds upon the confirmation and restoration of rights, rather than simply ensuring punishment for their violation. In many European jurisdictions, police are also increasingly becoming involved in matters which are concerned with distributive (rather than retributive) justice. In this sense, distributive justice includes the fair distribution of ‘social goods’ (conceived as benefits and services) including crime prevention, emergency services, social care, and so on, often in co-operation with other agencies. Community policing in jurisdictions such as Britain and the Netherlands provides an example of this, whereby police help to manage a variety of activities in partnership with others. The reasons for introducing community policing, however, have often been pragmatic rather than altruistic. In most states the demand for police services has inexorably risen along with public expectations. Resources, on the other hand, have not been keeping pace with rising demand and in some cases may have fallen in real terms. Police forces of the West have responded to these pressures with a rejection of traditional reactive patrol and investigation-oriented methods in an ever-increasing search for new techniques for managing rising demands and expectations. More output for less input is constantly sought to maintain or improve services. Given the exponential increases in reported crime which characterized the years immediately following the political changes, the police forces of Central and Eastern Europe may now be obliged to follow the same course. The key issue is the extent to which police organizations can respond to social transformation and match their strategies to the exact needs of the ‘communities’ they serve. This means that they will need to develop more flexible forms of intervention and interaction appropriate to the degree of development and integration of the community itself. This is not just a matter of the universal adoption of the techniques of community policing, however well operationalized they may be in terms of crime prevention and negotiating activities. What is required is a better fit between policing strategies (including investigation, operational enforcement activity, patrolling, crime prevention, response polic-
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ing, community policing and problem-solving) and the actual conditions of the working environment. This requires more of an analytic approach than one based upon deterministic prescription. Allen and Wright (1997) proposed a three-level model, based upon the extent of the integration of policing into the social fabric (see Figure 1). As argued in Benke et al (1997), in Wright and Mawby (1999) and as first developed by Broderick (1973), there is a need to understand the balance between the relative strengths of state and society as a guide to which level should be adopted.
Effect on policing styles: extent of integration of policing into social fabric Reactive/ Proactive models
Social fabric
Policing
Policing
Policing
Interactive/ integrative model
“Virtual policing”
Fig. 1. Effect on policing styles: extent of integration of policing into social fabric
At the first level, coercive, control-oriented (perhaps authoritarian) policing attempts to deal with the problems through both a reactive and a proactive response. Where the state is strong and society weak, fragmented or apathetic, an authoritarian model is likely to be adopted, with reactive and proactive elements, depending upon the type of demand. Where the state function remains very strong, police working under such regimes are likely to be under highly centralized control. Where society is quiescent and settled, rather than merely weak, or where the state adopts a more managerial (guiding rather than coercive) role, less authoritarian methods may be adopted. It is likely that organised crime will continue to be managed by such methods, rather than by commu-
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nity-oriented approaches, with society delegating the responsibilities for investigation to a ‘professional police’, characterized by high levels of expertise but operating clearly within the rule of law. In all these cases, strategic plans and management styles are set accordingly and an appropriate degree of civilian oversight must be provided. However, the degree of integration with society remains somewhat limited. In a sense, police forces working primarily on law enforcement at this level of development stand outside the social fabric and attempt to operate upon it. In many places, including some parts of the older democracies, as well as the new democracies of Central and Eastern Europe, the continued application of the reactive/proactive (professional) model may continue to be totally appropriate to the level of development of the police force concerned and to international, national and local conditions. In other places, particularly where communities are relatively active and begin to demand a higher degree of participation in local affairs (especially on issues relating to crime prevention, the administration of justice and police involvement in social development), the very terminology of reactive/proactive policing may be outmoded. In this case, at the second (interactive/integrative) level, police forces get closer to the communities they serve in setting up partnerships whilst retaining the autonomy and leadership that firmly distinguish their strategic role. Depending upon the level of integration which is possible, they may maintain some degree of the social control function and plan accordingly, although again with effective civilian oversight. In these circumstances the community is able fully to participate and to achieve high levels of partnership activity. As argued above, however, it is not sufficient simply to identify the community by geographical definition. Police must extend their analysis and interact with a variety of ‘communities’ which are not necessarily defined by location. Adoption of such integrative, community-based methods depends strongly upon the relationship between state and local community, particularly in the confidence that local communities have that police are not merely acting as intelligence-gatherers on behalf of the state. In the case of Central and Eastern Europe, this is likely seriously to affect their willingness to participate. As Szikinger (1993) has shown in relation to Hungary, the possibilities for the adoption of more integrative, community-based models of policing are severely limited by the continued weakness of local communities in relation to the state. For this reason, conditions in Hungary may not yet be right for the widespread intro-
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duction of community policing, although successful pilot experiments may build confidence. Much more remains to be done in the development of local government and participative democracy and in the establishment of a civilian professional police operating within the rule of law before such integrative models of policing can be adopted. At the third level, ‘virtual’ or minimum policing, the degree of integration is far more extensive, although at present this is little more than a theoretical possibility. The idea of the virtual is an emerging but powerful metaphor. The concept of virtual reality, using three-dimensional computer-graphics for training pilots or for video entertainment, has entered the popular vocabulary. These examples share the idea of a virtual image of a mirrored reality (the appearance of the real image in a mirror, long familiar from school physics textbooks). The metaphor is also beginning to appear in the literature of management and organizational theory. Davidow and Malone (1992), for example, describe the concept of the virtual product or service as the distinctive output of a new kind of business which can only be delivered now thanks to the latest innovations in information processing, organizational dynamics, and manufacturing systems. Such a product or service is capable of adapting in real time, or as near to it as possible, to the needs of customers. It is virtual in the sense that it can immediately mirror their changing requirements. This, in turn, implies a reflexive relationship between the needs of the customer and the way in which the business works to produce the product. This relationship between customer, product, and means of production implies a new kind of business, conceived as a virtual corporation. According to Davidow and Malone, such corporations will be amorphous in terms of structure and infinitely permeable to their customers, suppliers, and workers: It is … better to talk of the virtual corporation in terms of patterns of information and relationships. Building virtual products will require taking a sophisticated information network that gathers data on markets and customer needs, combining it with the newest design methods and computerintegrated processes, and then operating this system with an integrated network that includes not only highly skilled employees of the company but also suppliers, distributors, retailers, and even consumers. (Davidow and Malone 1992)
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Although the virtual corporation may be an uncommon business structure for some years to come, examples already exist which show us what might develop. Xerox, Reebok, and the new silicon technology companies provide examples of the emerging virtual corporation. In each case, quality is built in to the product and the organization provides a very high level of responsiveness to customer needs. The virtual products, in this sense, effectively mirror the demands of the environment. Although the rule of law and universal human rights provide overarching principles, flexibility and adaptability of this kind may ultimately be required in policing to meet the needs of a highly pluralized and relativized society, especially in relation to distributive justice. Radical critiques of structure and function have also provided indicators of the way in which organizations are likely to develop. An important aspect of the change in modern organizations is an increasing de-differentiation of functions (Clegg 1990). This implies a change from a rationale of highly specialized roles to a more robust specification that is capable of adaptation. This is evident in policing in the West where they no longer have primacy in many roles where previously they were often the sole agency. The current ethos of crime prevention fostered by the British Government, for example, is that of multi-agency partnerships. In such partnerships, a variety of agencies, funded from a variety of sources, seek to encourage participative models of crime prevention. This involves individual members of the public, local authorities, commercial companies, and voluntary and statutory agencies. The phenomenon of de-differentiation has also been evident in some fields involving coercive power, such as in drugs investigation. For example, in the UK since the 1960s, Customs and Excise have undertaken an increasing investigative role (Wright, Waymont, and Gregory 1993). Similarly, the shedding of responsibility for the enforcement of parking regulations from the 1960s onwards, has removed part of this function from police operations. These developments support the argument for a mixed model of policing designed to serve the needs of diverse cultures and communities. The exercise of coercive power seems likely to be a continuing universal characteristic of police work. This is because it remains a primary responsibility for all public police agencies for ensuring the impartial and universal enforcement of law for specific offences. However, highly developed communities will use coercion more sparingly and it will be integrated with prevention activities and with collaborative strategies for the diversion of potential offenders from crime. In this sense, it may be appropriate 171
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to use all three levels of the model shown in Figure 1, within the same jurisdiction, the application of different methods being relative to the problem which is to be solved or to community needs accurately defined. Whether such an approach is delivered within a single policing system, or by means of a two- or three-tiered strategic approach, will depend upon the degree of accountability and strategic control which can be maintained within a given jurisdiction.
4. Conclusion The management of policing in conditions of cultural diversity is a key theme of the next millennium in both the older and the new democracies. Achieving this involves active management and negotiation, not just fiddling with organizational structures and functions. For this reason, it is appropriate to be skeptical about the application of quick-fix schemes. In the West, community policing initiatives have been very resource-intensive. Some have been little more than presentational strategies. Similarly, although problem-oriented policing may seem to provide a universal answer, as with community policing it requires a high level of resource-intensive activity to initiate and sustain it. It also needs a change in the mind-set of the police if it is to be successful. There are good reasons why one needs to be skeptical about programs that require adherence to one particular theory, whether they are unreflective applications of community policing, problem solving, coercive law-enforcement or the doctrinaire adoption of management systems. Such programs are often an indication of being too rigid in one’s thinking about what an organization should do. Flexible management and leadership, within a broad strategic framework, are arguably better than logic-chopping about systems. Empowering top-level police managers and local commanders to negotiate their local strategies and tactics according to the unfolding local political, economic, social and technological environments in which they work is infinitely preferable. With the right systems of accountability, it gives police managers the possibility of adjusting goals and objectives according to the resources provided by central or local government to meet specific community needs. It enables them to be professional but creative in seeking to exercise some influence upon the demands of the working environment. 172
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Active management based on these criteria is more likely to be effective than doctrinaire adherence to theory. In the past, the adoption of stock initiatives has sometimes meant that police have lurched from one scheme to another, whilst making little real impact on the working environment. The approach that will be most effective entails real strategies that directly affect accurately identified communities and have measurable impacts. In conclusion, although the approach taken in this paper may seem pessimistic, it focuses upon the realities of social transformation and upon the difficulties that tend to confound the term ‘community policing’. That concept should denote concrete and measurable strategies for effective action in partnership with well-defined groups, rather than vague ideas about community involvement. It is not yet clear whether some aspects of the virtual model will eventually prove to be the way forward. Whatever model proves to be locally appropriate, strategies will need to include clear goals in support of democratic values, which recognize the primacy of the rule of law and universal human rights. They should be about helping specific groups of citizens to participate in the administration of justice. They should support participation in the democratic process of deciding how people are to be policed: lessons that are as relevant to the operation of policing in the old democracies as they are in the new.
References Alderson, J. C. 1979. Policing Freedom. Plymouth: Macdonald and Evans. ———. 1984. Human Rights and the Police. Strasbourg: Council of Europe Press. ———. 1998. Principled Policing. Winchester: Waterside Press. Allen, R., and A. Wright. 1997. ‘Learning the Right Lessons from New York: Direct Accountability and Zero-Tolerance’, Police Research and Management 1, No. 1 (August): 41–50. Bayley, D. H. 1994. Police for the Future. Oxford: Oxford University Press. Benke, M., P. Buzás, G. Finszter, R. C. Mawby, I. Szikinger, and A. Wright. 1997. Developing Civilian Oversight of the Hungarian Police. Brussels: European Commission (PHARE Democracy Programme). Broderick, J. 1973. Police in a Time of Change. Morristown, N. J.: General Learning. Clegg, S. 1990. Modern Organisations: Organisational Studies in the Post-Modern World. London: Sage. Davidow, W. H., and M. S. Malone. 1992. The Virtual Corporation. Harper Business: New York. 173
Policing a Diversity of Cultures: Community Policing in Transforming Societies Eriksen, T. H. 1997. ‘Multiculturalism, Individualism and Human Rights: Romanticism, the Enlightenment and Lessons from Mauritius’, in Human Rights, Culture and Context, ed. R. A. Wilson. London: Pluto Press. Etzioni, A. 1995. The Spirit of Community. London: Harper Collins. Gutek, B. A. 1995. ‘In the Future: Transacting with Strangers and Not So Strange Machines’, Organisation 2, no. 3/4 (Aug/Nov): 539–46. Hutton, W. 1996. The State We’re In. London: Vintage. Locke, J. 1960. Two Treatises of Government (ed. P. Laslett), Cambridge: Cambridge University Press. Morgan, R., and C. Maggs. 1984. Setting the P.A.C.E: Police Community Consultation Arrangements in England and Wales. Bath: University of Bath (Bath Social Policy Papers No. 4). Morgan, R., and T. Newburn. 1997. The Future of Policing. Oxford: Clarendon Press. O’Dowd, L. 1998. ‘Negotiating State Borders: A New Sociology for a New Europe?’, Queen’s University, Belfast (Inaugural lecture, 10 March). Police Foundation. 1982. Report on a Pilot Study of Fear of Crime in London. London: Police Foundation (unpublished). Rawls, J. 1972. A Theory of Justice. Oxford: Oxford University Press. Ritzer, G. 1995. The McDonaldization of Society. Thousand Oaks, Cal.: Pine Forge Press. Szikinger, I. 1993. ‘Community Policing in Hungary: Perspectives and Realities’, in Community Policing–Comparative Aspects of Community-Oriented Police Work, ed. D. Dolling and T. Feltes. Gesamtherstellung: WB-Druck Gmbh and Co. Buchproduktions-KG Reiden. Williamson, T. 1997. ‘Police Investigation: The Changing Criminal Justice Context’, in Core Issues in Policing, ed. F. Leishman, B. Loveday, and S. P. Savage. London: Longmans. Wilson, R. A. 1997. Human Rights, Culture and Context. London: Pluto Press. Wright, A., A. Waymont, and F. Gregory. 1993. Drugs Squads: Law Enforcement Strategies and Intelligence in England and Wales. London: The Police Foundation. Wright, A. and R. C. Mawby. 1999. ‘Civilian Oversight of Policing in Transitional States: The Case of Hungary’, International Journal of Sociology and Law (December).
Notes 1 For an extensive assessment of this relationship in the context of Hungarian policing, see M. Benke et al. (1997), and A. Wright and R. C. Mawby (1999). 2 The examples of police failures in respect of the Rodney King case in the US, and the failure of the police investigation of the murder of Stephen Lawrence in the UK (which both raised the antagonism of ethnic
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Target Areas of Police Reform Anita Hazenberg
This paper elaborates upon the importance of organizing police services which can respond optimally to the challenge of human rights. International standards have not yet been developed for the basic conditions necessary to guarantee decent and professional policing. I want first to make some basic observations on the challenges for policing in the new millennium, and then I will focus on what I call the five areas of fundamental concern for which quality improvement criteria need to be developed.
1. Basic Observations The prime objectives of policing are to maintain law and order and to fight and prevent crime. Depending on the national situation, attention will be given primarily to combating terrorism and organised crime, or guaranteeing internal security. Expectations directed towards the police by the international and the national community are, at present, strongly oriented towards crime fighting. Fighting crime is high on the European political agenda and an important condition of access to the European Union. The main question is whether the police will be able to provide safety and security in the society of the future. The other question, however, is whether it can be expected that the police remain the only actor responsible for ensuring safety. Police authorities are realizing more and more that the police alone cannot solve crime and social insecurity. There is a widely held opinion that if the police do not re-consider their position in the near future, they will no longer be able to fulfill their basic aims at all. The police are just a cog in a much bigger machine, a cog that can only function in an optimal way with the support and assistance of the other structures
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by which it is surrounded. Securing safety and security in a society can only be guaranteed by a joint partnership approach. A third question should be asked, however, concerning whether it is possible to find a proper answer to this duality in police functions. Is it possible to combine crime-fighting tasks with responding to the increasing demands for adherence to proper human rights standards, delivery of community policing, and ensuring both the active participation of society on a local level, and an increase in police effectiveness and efficiency? In short, is it possible to combine force and service?
2. Five Sets of Fundamental Conditions Police reform and quality improvement are inevitable if the police are to be equipped to provide essential services to society in the future. This raises serious issues for the police service as a whole. A clear description of the directions for change, and the measures necessary for their implementation, needs to be developed. The police in each country or region should take responsibility for this description, focusing on clearly defined areas and developing fundamental conditions to guide this change. I would identify five areas of examination: (i) the structure of the police organization; (ii) personnel; (iii) management practice; (iv) police training; and (v) democratic accountability.
2.1 The Structure of the Police Organization The first fundamental condition for effective change is related to the structure of the police organization. Will the chosen structure enable the police organization to work according to a service concept? Choice of an appropriate structure means taking into account the legislative and governmental structures of a country and the history of policing there—particularly whether it is military or civilian based. But it also means addressing the question posed by the duality of policing functions. If there is a willingness to focus actively on the two different characteristics of police work, the importance of the choice of organizational structure becomes even more evident. Other aspects thus come into consideration: relations between the police service and the judiciary, the
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criminal justice system, and other policing institutions; the issue of democratic control over the police, and the existence of structures to stimulate new management approaches and the active participation of civil society. It is not easy to find the right solution, but this should not lead, as many police forces are experiencing at the moment, to falling back to the traditional violence—and danger—oriented model of policing.
2.2 Personnel ‘Policing is people work’: thus another major factor is the kind of people who work in the organization. It is important that the police are trusted by, and recognizable to, the people they serve. My first question is therefore: is the profile of the police representative of the people in society? Let me answer this question myself. No! I think there is no country in this world where the composition of the police is representative of its society. The reason is quite simple. No country has yet finalized the total transformation of the notion of the police from force to service. In many European countries the first years after the Second World War were used for building a police force. The designing of modern policing has only been under way in most countries, depending on national social, economic, and political developments, since the early 1980s. This means that many of the still relatively young persons working in the force today are now being obliged to make the change from force to service. This applies both to those working on the operational level and to those responsible for managing change. Let us take a closer look at police personnel. One thing is immediately obvious: more than 90 percent of them are male, and often from a solid, traditional family background with old roots in the country. In some countries, they are mainly from the predominant religious or ethnic background. These individuals often have a middle–average educational background (a few will have attended university). They will have worked their way through the ranks as has been done for many years. In most cases, they are loyal and willing to give their whole career to the system. These police officers are now being asked to cooperate with and be loyal to yet another change (we should not forget that many police forces have already undergone many changes in recent years). This time, however, it is a change in the fundamental concept of the organization itself. Instead of enjoying respect for 179
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their powers, police officers now have to earn respect by explaining how and why certain powers are used. The answer ‘this is the way we have always done it’ is no longer sufficient. I wonder whether it is possible for such a homogeneous group of persons to make this change? Again my answer is ‘No’. I think that in order to make a change there is a need for diversity and flexibility inside the police force itself. This requires active outplacement, training, recruitment, and selection policies.
2.3 Management Practice It is also important that emphasis be placed on developing police management skills. Traditionally, a police manager simply gave orders and his subordinates obeyed. New managers are required to use a more situational style of management. This entails that, depending on the situation, a manager will choose between an authoritarian style (strongly top-down) and a ‘coaching’ approach. Police managers are also increasingly being expected not only to ‘manage’ an organization, but also to act as a ‘master of change’. Often at the beginning of an organizational change a culture shock is needed. Managers should be able to handle this process of organizational change, supported by clear regulations and, ultimately, sanctions. It is important that the management style guides officers towards fundamental, intrinsic changes in their attitude. During this process, managers need to be aware of the pain of such changes. Some members of staff will not find their way in the new approach, will be obstinate and unconstructive, and have to leave. The manager will often find him/herself in a situation where a ‘coaching’ management style is effective, thus giving officers the feeling that their ideas and solutions are important, creating space for innovation, and enabling operational officers to come up with practical solutions for daily problems. Officers in the street are often those closest to the problems, but also to the potential solutions. The effective manager must guide and support them in making this expertise explicit, and thus assist in the individual development of each officer. From an organizational point of view it is important that the results of these processes are part of the policy cycle and that those results become visible. In order to facilitate this process, the selection, training, and coaching of managers is important. But outsiders can also stimulate a breaking through the barrier of traditional ways of managing. Why not open the police to quali180
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fied managers from other spheres, for example? Why not think about abolishing the strict division between staff functions and operational functions? Why is it necessary for the head of the financial or personnel department to be a police officer, for example? Could the assignment of operational managers to policy design tasks, for instance, be avoided. Police chief constables are policymakers and should in turn not interfere too much with operational policing tasks. 2.4 Training Training is a profession in its own right. Police insiders know that training is, unfortunately, not always seen as a professional task and this results in training often being the last item on the agenda (and the budget). In general, most police training does not prepare police officers appropriately for daily practice. It is still too often based on a traditional model of ‘shaping’ civilians into loyal protectors of law and order (based on a military school model). As far as I can see, the focus on, for example, ‘human rights issues’ is often limited to law, explaining, for example, that a country has ratified the European Convention on Human Rights. The teaching of skills is, in most cases, rooted in the general educational program and is often of a very technical nature. The link between theory and practice in most cases does not exist. The student cannot clearly envisage how s/he can use the study material in daily practice. This can easily result in unwanted improvisation, ending up in the breaching of police powers and unprofessional police behavior. Reasons for the lack of effectiveness include the abstractness, or theoretical nature, of curriculum material, poor quality of teaching staff (mostly police officers without a specific educational background), and a lack of motivation. At middle management level, a lack of insight into the material, and an absence of coaching and corrective skills, exacerbate the situation. The low receptivity of training at present makes clear that an innovative approach to basic, in-service, and management police training is needed. The criteria for the success of this innovation will be that a direct relationship between daily practice and human rights is demonstrated and that innovative training methods are employed, involving a multidisciplinary and integrated approach, using practical scenarios. Such an approach makes it possible to treat subjects such as human rights with a strong ethical component—not as isolated, independent subjects but as integral parts of the totality of police operations. 181
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2.5 Democratic Accountability ‘Are your customers satisfied with the service your police organization is providing and are they in a position to influence outcomes?’ This is, in all its simplicity, the basic question behind the philosophy of accountability. In a ‘normal’ enterprise this will be the only driving force behind the interest of management in the outcomes of its work. But a police organization is not a normal enterprise. It is an organization which has the power to interfere deeply with the private lives of citizens. These powers include the use of force. This means that the police, together with the military, can become an instrument in the hands of the powers-thatbe. In order to avoid abuse of powers it is of pivotal importance that the police are bound by clear legislation prescribed by democratically elected governments. This is, however, not enough. The ‘customers’ of the police should also be able to influence the outcomes of policing. Influencing the outcomes of policing and monitoring them is a crucial aspect of democratic accountability. One way of ensuring the involvement of, especially, local people is their participation (selected or elected) in so-called police boards and police authorities. Questions that arise immediately are: how much influence and power do such authorities have to enforce their recommendations, and how impartial and how representative are they (for example, are all social classes, and ethnic, religious, and other minority groups adequately represented)? All of these important aspects should be taken into account. The crucial question is whether the board truly considers the needs of the local community when influencing police policies. Measures need to be developed to guarantee an optimal transparency and information flow about police work. But external controls remain essential in order to enable victims of alleged human rights abuses by police to have their allegations investigated. Such allegations could be made to an independent ‘complaints committee’ or to a Police Ombudsman, for example. The crucial element in such a mechanism is that independent outsiders should investigate the complaint, not only members of the police service. Police services should realize that every complaint is also free advice. If criticism is viewed positively and acted upon constructively, the police will be able to use the complaints system as part of their strategy to improve their performance and record on human rights.
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3. Closing Remarks In order to be able to make a comparative analysis, the first task is to clarify what we want to compare. We could decide to look at crime clean-up rates, the number of police officers for so many inhabitants, or the equipment used by the police. In my view, however, it is much more challenging to analyze what is often called the ‘soft’ aspects of policing. In my opinion these ‘soft’ areas form the ‘hard core’ of what must be addressed in order to effectively fight crime and guarantee security; to be able, as police organizations, to work as trustworthy partners in an effective relationship with the people in a community. In this sense no comparison is needed. When the framework I have suggested is applied there can only be one conclusion: not only countries in transition, but also older democracies in North, West, and Southern Europe, are facing the need to reconsider the function of the police in the new millennium. Fundamental change in the organization, function, and operation of European police services as a whole in the twenty-first century is inevitable. During this process of change there will be a need for an exchange of experiences, and an opportunity to learn from the courageous initiatives which have been taken, both in European Union states and in countries in transition.
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Oversight and Accountability
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The Role of NGOs in Civilian Oversight of the Police Mark A. Gissiner
As the President of the International Association for Civilian Oversight of Law Enforcement (IACOLE) I represent an NGO that has played a significant role in issues of police accountability and civilian oversight of police and security forces. If I consider myself an advocate for effective and efficient oversight of police and security forces, I must also face the fact that this representation also creates an obligation with a broader mandate, namely support for NGOs and the role they can play in oversight of this kind. Most definitions of NGOs are vague and even confusing. A 1994 United Nations document defines NGOs as “Non-profit entit[ies] whose members are citizens or associations of citizens of one or more countries and whose activities are determined by the collective will of their members in response to the needs of the members of one or more communities with which the NGO cooperates.” This means that essentially every kind of group could be considered an NGO except for private businesses and certain government organizations. In theory, even terrorist groups could be considered NGOs if there were methods by which the collective will could be determined. Perhaps the best approach to defining and comprehending NGOs is to focus on their goals, membership, funding, activities, and other relevant factors. Let us look at the civilian oversight of the police and the possible role of NGOs in accountability. First, I will address what I think the role of IACOLE should be in this very important area. I will also say that my view is not necessarily shared by some of my colleagues on the IACOLE Board of Directors. Fortunately, the large majority of the Board favors a global approach to these issues, with IACOLE acting as a catalyst for change, or stability, depending on the circumstances facing a given nation or region of the world.
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IACOLE has the opportunity to educate the world about the concepts of external oversight and true accountability; that is, to educate all those who believe in the principles of democracy and the protection of human rights, including individual rights of expression. Totalitarian regimes, whose governing principles center on repressive tactics to quash the citizenry into forced compliance or face awful consequences, are difficult to understand. The most effective method for gaining citizen support of a government is to treat the citizens with honor, respect, and dignity. This is the very principle of civilian/external oversight of law enforcement and true accountability on police and security issues. Treat your citizens with respect and dignity, and they will respond to their government with respect and dignity. The situation is different in Eastern Europe. In the United States, in rare circumstances, police were used to suppress political activism, but by and large, even in the days of the Old West, law enforcement personnel were used to fight crime. Judicial systems were created to ensure that law enforcement apprehended the guilty, and the courts freed the innocent. Perhaps the one thing that defines our judicial system is the saying: “We would rather see 99 guilty people go free than have one innocent person convicted.” My perception is that it is different in Eastern Europe. My view, as an outside observer, is that police and internal security forces are in place to support the regime. Crime rates seem low, unlike in the United States where the ‘bad guys’, including young people, all have guns. In addition, I see in Eastern Europe that if you do commit a crime, the punishments are very severe. Victims of crime are also less likely to report crime, again reflecting the fact that the true function of law enforcement is to enforce and protect the philosophies and mandates of the government. It is important to note at this point that control of the police tends to be fragile because if the police use their ability to militarily oppose the judicial or legislative authorities, anarchy is possible. No matter what controls exist, at the end of the day, the citizens must be able to depend on the integrity of the police and military leadership to respect human rights. When I became a member of the IACOLE Board, as a Director-at-Large, I envisioned its role as that of an organization that served its members: a focal point for members to share information, problems, solutions and methodologies for successful operation of civilian oversight. I soon learned that IACOLE was an international organization in name only. The membership was dominated by Americans. My view of IACOLE has since 188
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changed. At an early stage, I decided to ensure that our mission had an international focus and developed goals for the organization accordingly. These goals are applicable to all NGOs involved in civilian oversight of police. They are: • Professional development for civilian oversight professionals and review board members. This goal is designed to ensure that the expertise of civilian oversight professionals is enhanced by expanding professional development opportunities that focus on current, new, and emerging roles and competencies. • Improving organizational coordination. The objective of this goal is to become an organization whose members work together more effectively for mutual benefit. • Marketing and membership development. This goal is to increase awareness and communicate the value of IACOLE products and services to civilian oversight professionals, government agencies, police agencies, the media, and human rights groups with the objective of expanding our membership base beyond the narrow focus of police accountability. This goal acknowledges the leadership role that IACOLE should maintain in the law enforcement accountability community. • Information exchange and new technology. This goal is designed to increase the exchange of and access to information with emphasis on state-of-the-art technology. • Definition of the organization’s international role. Seek to promote and expand our presence in the international law enforcement accountability community to share best practices for civilian oversight development. • International conference. IACOLE will continue to plan, organize and conduct international conferences for the discussion of major issues impacting the law enforcement accountability professions. • Representation. The inclusion of this goal recognizes the importance of maintaining an active involvement in the legislative and regulatory process on behalf of those interested in law enforcement accountability. The Association will strive to provide quality governmental affairs activities. We could at least enhance all of this by claiming a more educational role in the concept of external oversight and accountability 189
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of law enforcement and security personnel. The most important—and most difficult—task is to educate police leadership in these concepts and their true value, not only to citizens, but to the police themselves. What people must understand is that most of our members in some way represent a government body. Most report to a legislative body such as a Parliament, some report to Chief Executives. They must weigh their involvement in IACOLE very carefully so that they do not upset the delicate balance of being part of a government, yet at the same time being considered an independent fact-finder and decision-maker. Once you politicize the disciplinary process in policing, you lose credibility and standing, and in the end become totally ineffective.
1. NGOs Matter There can be no doubt that the number, influence, and power of NGOs are at an unprecedented level. Thousands are now registered with the United Nations. Formerly clustered mostly in democratic societies, they are now everywhere, from Beijing to Pretoria, to the farthest hinterlands of the world. They are protecting people, ducks, water, whales, and practically every life form on the planet. Some are controlled by religious organizations, some by atheistic organizations. They are changing societal norms, challenging and confronting local, state and national governments. They confront big business and are forcing their way into debates on arms control, environmental protection, and high level politics. They set agendas, negotiate, and sometimes control outcomes, and provide solutions to complex problems. In 1945, NGOs were a driving force in inserting human rights language into the United Nations Charter and, ever since, NGOs have always been at the forefront when human rights abuses occur. NGOs have evolved from holding demonstrations to using modern technology to spread their message globally. In 1997, during the preparations for the 1997 IACOLE Conference in Ottawa, I was working with the office of the Minister of Foreign Affairs, Lloyd Axworthy. At the same time, he was a leader on the issue of the banning of land mines. There were more than 350 humanitarian and arms-control NGOs strongly lobbying to enact these measures. Global information systems were established and
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operated at unprecedented levels. And the work paid off: 122 nations signed up to the treaty. Ironically, research into the topic has made me aware of the weaknesses of IACOLE and its NGO role, and has led me to try to conceptualize what we can do to make this issue of police accountability a truly global issue with significant participation from other NGOs and government bodies.
2. Blueprint for Action The role of an NGO in advocating legitimate police accountability and civilian oversight is a difficult and time consuming one. In addition, there are perceptions or misinformation disseminated for the specific purpose of discrediting or marginalizing NGOs as radical left-wing groups that fail to represent the sentiments of the populace, or are sympathetic to criminals. All of these labels are of course false; however, powers within government have a tremendous ability to sway public opinion or otherwise adversely affect the true message that we are trying to deliver. Also, the general public is hesitant to engage the government in debate or prod action unless they have been directly and negatively affected by a specific action of government. In totalitarian regimes, people are afraid to criticize their government, even privately, for fear of retribution or so-called government informants. However, not all the news is bad. With a specific plan of action, hard work, and adequate funding, NGOs can have a tremendous influence on governments for the establishment of effective and truly independent models of civilian oversight. Such success stories include the Inspector General of Portugal; the Independent Complaints Directorate of South Africa; the Commissioner for the Abuse of Authority in Nepal; and the continued growth of Ombudsman models all over the world.
3. Three Components of Success When I provide consultative services for the establishment of external civilian oversight of police models, my blueprint for action involves three steps: needs, expectations, and reality. Most often, whether they are governments or NGOs, the groups con191
The Role of NGOs in Civilian Oversight of the Police
cerned do a very good job of establishing that there is a need. Secondly, they are also pretty good at defining what their expectations are. Few, if any, are able to discuss what the realities of civilian oversight are. 3.1 Need To advocate the establishment of true civilian oversight of police, an NGO must show the government (and hopefully a free and truthful media) a comprehensive needs analysis to demonstrate that civilian oversight of police processes is necessary not only for individuals who come in contact with police, but also for the public in general, to ensure that they have an open and accountable government. For example, the ‘Police in Transition’ project is an excellent example of the type of work and research needed to demonstrate to the government and public that problems exist in policing, both individually and systemically, that call for changes in internal and external disciplinary processes. Another example, under difficult conditions, is the work being done by the Humanitarian Law Centre in Belgrade, Yugoslavia, including the work of Budimir Baboviæ. They have issued numerous books and pamphlets that discuss in detail acts committed by police and the police administration that call into question the very nature of the whole policing structure within Yugoslavia, which includes a police force that by Western definitions is to all intents and purposes an army. In South Africa, one of the cornerstones for establishing the Independent Complaints Directorate (ICD) directed by Neville Melville, a member of the IACOLE Board of Directors, was the Truth and Reconciliation Commission, which revealed the historical involvement of the police in illegal activities aimed at destroying political opposition to the former government and the highlevel covering up of such activities. This led to a deep-seated mistrust of the police on the part of the community, particularly in their sincerity in investigating the alleged misconduct of their colleagues. The Independent Complaints Directorate in South Africa evolved from various initiatives which commenced with the National Police Accord (NPA) signed on 14 September 1991, which provided for the appointment of independent police reporting officers (PROs) to receive complaints against the police. The mandate of the PROs was confined to misconduct “of such a nature that it may detrimentally affect police/community relations”. These efforts were inadequate and in 1993 the Interim Constitu192
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tion of South Africa provided for the establishment of “an independent mechanism, under civilian control, with the object of ensuring that complaints in respect of offenses and misconduct allegedly committed by members of the [Police] Service are investigated in an effective and efficient manner”. The ICD does not seek to undermine the South African Police Service in carrying out its legitimate Constitutional functions, but rather to help it assume its rightful place in the new and flourishing demoIn cracy. essence, what occurred was that a clear and present need was established, through research, advocacy, and pressure on government, to establish this independent mechanism. 3.2 Expectations To effectively lobby for the establishment of police accountability and external civilian oversight, you must be able to define what your expectations are, and what the expectations of all citizens, NGOs, government and the police should be. What do you want to happen as a result of this process? Do you want to see police go to jail? Do you want to see the guilty arrested and the innocent go free? Do you want to stop intentional, malicious, and violent behavior against citizens, criminals or political dissidents? Do you want an open and public disciplinary process? Do you want a Parliamentary review of all prosecutions and disciplinary findings against the police? Do you want police to fight crime? Do you want independent complaint intake processes? Do you want independent investigations of complaints? Where does the judiciary fit in with regard to the guilt or innocence of an arrested subject? Will you politicize the disciplinary process? What do you propose to do to remedy systemic problems within the police service? How will these processes protect police from political actions against them? What are your expectations if civilian oversight is created? These are all questions an NGO must answer before it can request or demand civilian oversight and do it in a credible manner. 3.3 Reality True civilian oversight of police and the establishment of true accountability mechanisms in a society that is used to totalitarian rule are extraordinarily difficult tasks. Even in places where one would expect some semblance of respect for this concept, it is fragile. A good example is the former Police Complaints Commis193
The Role of NGOs in Civilian Oversight of the Police
sioner (PCC) Office in Ontario, Canada. The PCC was established in 1985 and was heralded as one of the strongest civilian oversight models in the world. It was well funded, had a large staff, had subpoena and independent investigative powers, and was regularly consulted on issues of police accountability. Government officials, NGOs, and others from around the world visited this agency to study it as a model for their own agencies. However, in 1995, a new conservative government took over in Ontario. Under the guise of tax cut fever and demands to cut bureaucracy and waste, as well as significant police pressure to change the system because they (the police) were feeling overwhelmed by the complaints investigation process, the new government dissolved the office in favor of a completely policedependent model with little staff or true control. Where were the NGOs that had pushed so hard for the 1985 model? They were fragmented and disorganized, and themselves caught in tax cut fever. The current model in Ontario is a shell of its original self. Even in one of the most stable parts of the world, the tide can change quickly because of the immense power and political influence of the police establishment. NGOs must keep up their support for these agencies and be able to quickly mobilize public outrage against the dismantling of civilian oversight agencies. The battles never end. Civilian oversight agencies tend to be underfunded and understaffed. They quickly lose credibility if they become a political instrument. They must always be fair and impartial fact-finders. If they become too closely aligned with any political group, they lose effectiveness. NGOs must lobby not for an advocacy civilianoversight agency, but for an independent fact-finder. Such a civilian oversight agency will also enhance the credibility and respect of the police service. How can NGOs learn what ‘reality’ is in respect of civilian oversight? They must study other agencies in depth. They must look at success stories in all parts of the world and prove to their governments that these systems work if constructed in the proper manner, and stay above the political fray. Another reality which I think can benefit those who favor civilian oversight is that the findings rates tend to be fairly similar to the internal findings rates of police agencies. There is usually no measurable difference. However, even more valuable is the fact that the public will have greater faith in an independent factfinder, credibility and trust in the police service will rise, and citizens and police will be more civil as a community.
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Good police–community relations is one of the cornerstones of a true democracy. The greatest role NGOs can play in promoting this concept is to get all the parties engaged in dialogue, work out a process for the establishment of civilian oversight, and operate it in a truly non-political atmosphere. In a speech I delivered at the Humanitarian Law Centre Conference in Belgrade in October 1997, I told all the delegates at the conference that we would all be old and gray before we saw a meaningful external oversight and complaint process in Yugoslavia and most of Eastern Europe. However, it is attainable. The plan I have laid out is one that I think can accomplish this goal. It will take a long time and a lot of hard work. However, just like in South Africa, at the end of the day, it can be successful with the dedicated work of NGOs leading the way.
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Monitoring Police Detention: Experiences with Civilian Oversight of Law Enforcement Agencies Ferenc Kõszeg
The Hungarian Helsinki Committee, jointly with the Constitutional and Legislative Policy Institute, started its Police Cell Monitoring Program in February 1996. The Program was funded by the Open Society Institute, Budapest, and the Hungarian Soros Foundation. The Committee was encouraged to submit a proposal to the Minister of the Interior by a statement of the Minister before the Parliament’s Human Rights Committee. The Minister announced his support for civilian oversight of organizations supervised by his Ministry. The Police Cell Monitoring Program was preceded by a factfinding mission conducted in 1995 by the Hungarian Helsinki Committee, jointly with other NGOs, at a community shelter which in fact operated as an alien policing deportation camp. Both the fact-finding mission and the ministerial statement marked a change in attitude. Earlier, the police had resisted oversight, not only by NGOs, but also by state organs, that is, oversight by public prosecutors who had a legal entitlement to monitor police activities. But even in the case of the Law on the Police, 1 only after a long dispute did the police agree to inclusion in the bill of a provision stating that data gathered by secret means, but not used to initiate criminal proceedings, can be examined by a public prosecutor. It is worth mentioning that in 1993, following the law establishing the institution of ombudsman in Hungary, the police insisted that the ombudsman—elected by a two-thirds majority of the Parliament—should apply for the consent of the National Chief of the Police (a civil servant appointed by the Government) if he wanted to examine cases related to police operations. (This provision was deleted from the law in 1995. 2 ) In this context, the first visit of the Council of Europe’s Committee for the Prevention of Torture (CPT) to Hungary in the fall of 1994 was a real breakthrough. According to the report
Monitoring Police Detention: Experiences with Civilian Oversight of Law Enforcement Agencies
issued by the CPT: “Some delay was experienced in gaining access to a detained person whom the authorities considered to be particularly dangerous.” On other occasions, the information was disclosed “after the timely intervention of the Government’s liaison officer”. 3 It seems that some officers simply did not want to believe that civilians, still less foreigners, had been allowed to enter police detention facilities and contact detainees. The framework of the Hungarian Helsinki Committee’s Police Cell Monitoring Program was outlined by a circular issued on 22 February 1996 by the Deputy Head of the Police responsible for all police detention facilities. Upon this agreement, members of monitoring groups, possessing a letter of authorization, were entitled to enter police facilities at any time, day or night, without previous announcement, to interview detainees—upon their agreement—to fill out questionnaires with them, and to use tape recorders. Medical doctors belonging to the monitoring group had the right to conduct medical check-ups with the consent of detainees, and to look at their medical records. However, the monitors were requested not to interfere with criminal proceedings or provide legal counseling to the detainees. In order to use a camera or a video recorder, they needed to apply for a special permit from the police. According to the agreement, the monitoring activity meant, inter alia, “the oversight of the physical conditions of the buildings and of the parts of buildings where detainees were kept, the treatment of detainees and the conditions of detention, the implementation of detainees’ rights, the manner in which their physical and special—such as medical and hygienic—needs were 4 satisfied, and the quality of their relationship with their guards.” The permits issued to the monitoring teams were limited: they expired at the end of June 1996 and were restricted to Budapest and four counties. Later, permission was prolonged until the end of 1996 and four different counties were included in its geographical scope. The monitoring teams—headed by an attorney—usually had three members, and generally included a physician. Altogether 43 persons participated in the Program. Between 15 February and 15 December 1996, monitoring teams conducted 216 visits to police jails, made 218 interviews with detainees, and had 473 questionnaires filled out by detainees. Monitoring teams sent reports following each visit to the Hungarian Helsinki Committee, and graver problems were immediately indicated to the National Police Headquarters. The final report based on the 1996 experiences 198
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of the Police Cell Monitoring Program was published as Punished before Sentence, in Hungarian (1997) and in English (1998). Unlike in most countries, where suspects can be kept in police detention facilities only for a short time, and pre-trial detention may take place in facilities run by authorities other than the police, in Hungary pre-trial detention is possible in both the prison system or in police cells. For practical reasons the police prefer the latter, and so suspects are regularly kept in police facilities during investigation and then sent over to the prison system after the investigation has been closed. Consequently, almost half those in pre-trial detention are kept in police detention facilities. On 31 December 1996 there were 3,253 persons in police jails, while 3,455 were held in prison facilities. The 6,708 detainees in pretrial detention comprise 42 percent of the 16,016 total prison population. The length of pre-trial detention and the time-period one can stay in police detention is presently unlimited. According to the survey of our monitoring groups, 40 percent of detainees spent more than 3 months in police detention. Experts working on the new bill on criminal procedure suggested that a European model should be introduced which prohibits pre-trial detention in police detention facilities. This proposal was allegedly opposed by the police. The internal debate led to a compromise according to which the new act on criminal procedure in effect from January 2000 will limit the length of detention in police facilities to a maximum of 60 days. 5 Out of 473 detainees who responded to our questionnaire, 159 (33.6 percent) answered that they had been ill-treated by police officers at least once in their life; 110 of all respondents (23.3 percent) stated that police had used physical force during the arrest; while 96 (20.3 percent) said that they had been ill-treated in an earlier procedure. In the opinion of the police, these data are based exclusively on statements made by detainees, and so are not creditworthy. Undoubtedly, the number of police officers convicted of forced interrogation or ill-treatment during official proceedings is quite low in comparison to these figures. Compared to the annual average of 1,200–1,300 reports on account of forced interrogation or illtreatment during official proceedings, in every third case the criminal investigation is rejected, about 80 percent of commenced investigations are terminated, and no more than 50–80 cases a year end with a conviction. This assumption is founded on—unfortunately all too credible—responses from detainees to a question in the monitoring questionnaire relating to the methods of ill-treatment: 75 respon199
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dents stated that during their present arrest they had been kicked, punched, and slapped; 6 persons recounted that their head had been beaten against the ground or the wall; 3 had had a gun pointed at them or had been hit with a gun; 7 said that they had been beaten with either a truncheon, some cable, a chair-leg, or a stick. Juveniles, Roma, and foreigners were particularly likely to be the victims of ill-treatment. In 1997, the Hungarian Helsinki Committee wished to carry on with the monitoring program, but it was halted by an intervention from the Attorney General’s Office. In the opinion of the Deputy Attorney General, this type of civilian oversight lacked sufficient legal basis. He suggested that the Minister of the Interior amend the decree on police cells in order to create the necessary legal background. Although the Minister accepted the suggestion, the Deputy Attorney General could not agree on the ministerial draft amendment to the decree. The legal debate led to a pragmatic conclusion. The Chief Commander of the Hungarian Police finally signed a renewed but essentially unchanged agreement with the Helsinki Committee in which there was no prosecutorial intervention. Following a change in government—as well as in the police leadership—resulting from the general elections in 1998, the old agreement has been resumed. Police cell monitoring has been on-going; what is more, it has become almost standard practice. 6However, the present program is not as intensive as previously due to a shift in its objectives—from collecting and publishing basic information on the state of police detention facilities to monitoring and the regular notification of the police about common anomalies, such as the delayed delivery of letters, unlawful hindering of family visits, or unsatisfactory nutrition. Monitoring cannot change conditions in police cells, but police officers regularly respond to objections in the knowledge that they are being monitored. In 1997, a monitoring team consisting of a lawyer, a doctor, and a Committee staff member witnessed the ill-treatment of two Ukrainian men in a Budapest district police station. The team reported the crime to the prosecutor’s special investigation department. The investigation was terminated after a while because it transpired that the men—who were suspected of a violent crime committed in broad daylight—had been released and had most likely been allowed to leave the country. Police brutality is very seldom witnessed by neutral third parties. However, even if there are witnesses, the police make sure that there are no victims. 7 200
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Notes
1 Law 34 of 1994 on the Police. 2 Law 59 of 1993, article 18, paragraph 7, amended by Law 65 of 1995, article 33. 3 See the report of the Council of Europe Committee for the Prevention of Torture on its 1994 investigation in Hungary. 4 Quotation from the circular of the National Police Chief. 5 Meanwhile, on the motion of the Government the Parliament postponed the date of coming into force of the new Code of Criminal Procedure. 6 See ‘Hungarian Police Cell Monitoring Program’, in The Impact of External Visiting of Police Stations on Prevention of Torture and Ill-Treatment (Geneva: APT, 1999). 7 See ‘Monitoring Detention by the Police (Experiences with Civilian Oversight of Law Enforcement Agencies)’, in The Prevention of Torture in Central Europe (Geneva: APT, 1999). See also A. Kádár, ‘Police Strategies in Dealing with Complaints from NGOs (excerpts from the Hungarian Helsinki Committee’s correspondence with the police within the framework of the Police Cell Monitoring Program in 1997–1999)’, Helsinki Monitor 2, no. 1 (April 2000).
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The Police and Non-Governmental Organizations in Poland Andrzej Kremplewski
The Constitution of 1997 states that the Republic of Poland is a democratic state under the rule of law (Article 2). The rule of law includes, as an indispensable element, the principle of the separation of powers. According to the classical formulation of that principle—as asserted in democratic constitutions—each of the three powers (legislative, executive, and judicial) is limited by the other two through a system of checks and balances. Furthermore, it is self-evident to an East European lawyer that the constitutional status of the police in the region is as part of the executive. (By contrast, in the legal systems of established democracies the police are included among the agencies of the judicial authority. 1) Under the Polish Constitution, the executive authority is exercised by the President of the Republic and by the Council of Ministers (article 10, section 1), among them the Minister of Internal Affairs and Administration, who is in charge of the police. Basic tasks of the police include protection of public safety and order, crime investigation, and prosecution of offenders. This is the essence of police power. It is therefore self-evident that police activities can seriously affect fundamental human rights and freedoms, as a result of which it is necessary to introduce, at the constitutional and statutory levels, appropriate restrictions on police actions. Legal restrictions are among the most important elements of a state ruled by law. Obviously, the law may also be used within the framework of political maneuvering. To make the system of legal guaranties as independent as possible of politics and economics in a state ruled by law, additional elements have to be introduced to fortify the legal system. This involves the construction of civil society on the periphery of or even inside closed police structures, as well as the existence and operation not only of non-governmental organizations cooperating with the police and monitoring their work, but also of other organizations with ac-
The Police and Non-Governmental Organizations in Poland
cess to police structures, as well as the operation of mechanisms for informal social control. The police in Poland are constantly the focus of attention of both politicians and the general public. This is so not only during public administration reforms of fundamental importance for the functioning of the state, or during campaigns in which the rather vague slogan of “enhancing public safety” is used in abundance in electoral programs, 2 or on the occasion of controversial cases of police abuse. The fact that the police tend to attract public attention is probably an interesting effect of the Polish postwar heritage. The former Civic Militia was perceived typically as the “beating heart of the Communist Party”, 3 and a popular, overpolite, and submissive way of addressing an officer was “Mister Government”. 4 This perception resulted from the force’s disgraceful role in suppressing opposition movements, and from the Civic Militiaman’s obligatory “ideological burden”. 5 On the other hand, police officers are the first representatives of law enforcement encountered by most citizens. 6 They are not only the persons to whom offenses should be reported, but they also perform other tasks, many of them ‘invisible’ to society. A lot depends on their knowledge, skills, and professionalism, and their understanding of the situation of those who ask them for help.
1. The Police in the Light of Sociological Surveys In the popularity ratings of non-political institutions, the police are now seventh (after public radio, public television, the army, the National Bank of Poland, the Ombudsman, and the Supreme Audit Commission): 54 percent of respondents praised and 38 percent criticized its work. 7 In 1989, the Civic Militia still held the eleventh (last but one) position, ahead only of the (communist) Polish United Workers Party. In 1990, the force ranked tenth, and in 1992 second (after the army). Thus there was an explicit increase in approval of the police in 1991–1992, followed by a slight drop in subsequent years and a somewhat larger one in 1998. The proportion of respondents praising the police since 1989 has always exceeded that of those criticizing the force (Table 1).
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Table 1 Public Approval and Disapproval of the Civic Militia/Police in Poland Survey Date November 1989 March 1990 October 1991 December 1992 December 1993 November 1994 November 1995 November 1996 December 1997 September 1998 December 1998
Approval (%) 37 67 68 68 68 63 60 62 51 61 54
Disapproval (%) 36 48 21 20 20 28 33 27 37 31 38
Sources: (1) Opinia publiczna o instytucjach i organizacjach spo eczno-politycznych kraju. Czesc I [Public opinion on Polish socio-political institutions and organizations. Part I] (Warsaw: CBOS, 1989), p. 1 (duplicated typescript); (2) Swiat instytucji politycznych w swiadomoœæi spo ecznej – luty 1990 r. Komunikat z badan [Social perception of political institutions – February 1990. Survey summary] (Warsaw: CBOS, March 1990), p. 3 (duplicated typescript); (3) Spoleczna ocena dzialalnosci kluczowych instytucji i organizacji spoleczno-politycznych i osobistosci zycia publicznego. Komunikat z badan [Public appraisal of the work of key sociopolitical institutions and organizations and of public personages. Survey summary] (Warsaw: CBOS, October 1991), p. 2 (duplicated typescript); (4) Opinia publiczna o glownych instytucjach i organizacjach kraju [Public opinion on the main Polish institutions and organizations] (Warsaw: CBOS, December 1992), p. 1 (duplicated typescript); (5) Instytucje publiczne w opinii spoleczenstwa. Komunikat z badan [Society’s opinion on public institutions. Survey summary] (Warsaw: CBOS, March 1995), p. 2 (duplicated typescript); (6) Dzialalnosc instytucji publicznych w maju 1996. Komunikat z badan [Activity of public institutions in May 1996. Survey summary] (Warsaw: CBOS, June 1996), p. 2 (duplicated typescript); (7) Stosunek do instytucji publicznych. Komunikat z badan [Attitude to public institutions. Survey summary] (Warsaw: CBOS, February 1997), p. 2 (duplicated typescript); (8) Dzialalnosc instytucji publicznych. Komunikat z badan [Activity of public institutions. Survey summary] (Warsaw: CBOS, January 1997), p. 2 (duplicated typescript); (9) Ocena dzialalnosci wybranych instytucji publicznych. Komunikat z setnego badania aktualnych problemow kraju [Appraisal of the activity of selected public institutions. Summary of the onehundredth survey into current domestic problems] (Warsaw: CBOS, October 1998), p. 7 (duplicated typescript); (10) Ocena instytucji publicznych. Komunikat z badan [Appraisal of public institutions. Survey summary] (Warsaw: CBOS, January 1999), p. 8 (duplicated typescript). Note: In the CBOS surveys carried out after September 1998, the categories of ‘good’/’bad’ replaced those of ‘approval’/’disapproval’. The relevant question was: “Now I would like you to evaluate various institutions. What is your appraisal of the work of the police?”.
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It should be added that in a survey conducted by the Social Survey Studio in Sopot in December 1998, which involved appraisal of 21 (political and non-political) institutions, the police ranked only twelfth: 33 percent of respondents praised and 48 percent criticized them. 8 The findings obtained by the Sopot sociologists may be treated as reliable; for example, a survey on occupational prestige placed police officers twelfth out of 21 occupations. 9 In another survey, this time on the social perception of professional honesty and reliability, police officers only ranked eighteenth out of 23 occupations. 10 Finally, the findings of the International Crime Victim Survey should also be mentioned. Comparing parts of two surveys concerning Poland (1992 and 1996), we note that the proportion of respondents who mentioned the police when asked to specify which state functionaries had demanded a bribe from them almost trebled over the given period (from 11.4 to 31.9 percent). 11 As may be concluded from this perfunctory review of surveys pertaining to the police, Polish society has a ‘dual’ opinion of the police. On the one hand, the police as an institution is openly praised (more or less, depending to some extent on current controversial political and criminal actions, such as a recent incident in S upsk, 12 or the killing of former Police Commander Marek Papala). On the other hand, there is a rather carefully concealed social distance or even hostility towards the police. 13 This discordance between declarations and actual support is interesting to observers of the police. It demonstrates, among other things, that the Polish police are still an organization ‘in the making’, not only at the level of organization or even legal regulations, 14 but also at the level of consciousness. 15 This latter sphere seems fertile soil for the (joint) action of non-governmental organizations and the police. 16
2. Police and Non-Governmental Organizations At first sight, the police and non-governmental organizations are two completely separate worlds. The former is a uniformed paramilitary organization, with an expanded bureaucracy, strict legal regulations, and a long-term focus, dealing with practically all negative phenomena in social life. Non-governmental organiza206
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tions, on the other hand, are rather spontaneous and react promptly to particular phenomena (the responses range from spectacular demonstrations against injustices, which sometimes go as far as civil disobedience, to less emotional but much more difficult and taxing activities: for example, assistance to the homeless). They tend to focus on specific aspects of social life. Also characteristic of NGOs is a shorter time perspective (which results, among other things, from their need to raise funds or from their duty to report on the spending of money assigned to individual projects or actions). In the case of both the police and NGOs, the strength of the organization/institution derives from its style of operations or area of interest. NGOs may render considerable support to the naturally ponderous state machine, which reacts to negative social phenomena only after some delay. A closer look at the police–NGO contrast shows that the two worlds do have things in common. This is particularly true of the human rights and welfare NGOs. Andrzej Rzeplinski sees crime 17 prevention as one such shared area of activity. As follows, for example, from the findings of the opinion surveys already quoted, the police cannot possibly operate without the support and assistance of society. The activity of human rights NGOs is one element of such support and oversight of the police. In Poland, a grassroots culture has only just begun to develop in this connection. In the remainder of this section we shall look in more detail at the work of five of the most important human rights NGOs. 2.1 Helsinki Foundation for Human Rights One of the largest mainstream human rights organizations in Poland. Operating since 1989, it is the executive agency of the Helsinki Committee in Poland, established in 1982. 18 The Foundation’s basic areas of activity include education, including education of the police. In cooperation with the Police Training Center in Legionowo, the Foundation prepared a collection of Council of Europe and UN documents useful for police work, and a handbook discussing the major human rights issues. 19 Several of the Foundation’s staff and associates have regular columns in professional journals and the press, discussing important judgments of the European Court of Human Rights in Strasbourg. 20 Police activities are also among the priorities of the Foundation’s other program, ‘Public Interest Law Action’. Within the framework of the program, the Foundation regularly monitors 207
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police activities, examining citizens’ complaints against police conduct. 21 The victims of police brutality who approach the Foundation are encouraged to report the offenses. In 1998, 33 complaints were submitted to the Foundation concerning illegal police conduct (in 11 cases no human rights violation was ultimately established). In complicated cases, the Foundation hires a lawyer. This is particularly important in cases where the victim needs protection against counter-accusations, for example, of assaulting the police. One of the cases conducted by the Foundation is that of Mr. X. Y., aged 25. In June 1997, Mr. X. Y. and four friends were standing in front of a 24-hour shop in a locality near Warsaw. A police car drove up to them and several officers got out. For no reason whatever, they made the young men lie down on the ground. All the men were handcuffed. The officers punched Mr. X. Y. in the head and face, kicked him all over the body, and verbally abused him. Mr. X. Y. was then taken to the sobering-up station and his blood was tested for alcohol. His blood alcohol content turned out to be 1.93 per mille (the sobriety threshold in Poland being 0.5 per mille). A subsequent medical examination showed impairment of the functioning of his bodily organs resulting in his temporary inability to work for a period exceeding 7 days (including injury to the head and the right eye, fracture of the jaw, and fracture of the nose without dislocation). The following day, Mr. X. Y. reported the incident to the prosecutor’s office, which however discontinued the proceedings on the grounds of absence of the statutory features of an offense. The prosecutor stated that Mr. X. Y. had fallen and that the officers’ action had been lawful. A subsequent complaint was also rejected by the same prosecutor. In November 1997, the prosecutor’s office indicted Mr. X. Y., accusing him of assaulting the police. Having exhausted the domestic remedies, Mr. X. Y. filed an application to the (former) European Commission of Human Rights in Strasbourg, complaining about violation of articles 3, 6, and 8, section 1 of the European Convention of Human Rights. Representatives of the Foundation also inspect several police institutions on an annual basis (police jails, police juvenile hostels, deportation jails). The findings are published in an annual report and communicated to competent authorities and the media. Three reports have concerned police institutions. We have been informed that the reports were used, among other agencies, by the Committee for the Prevention of Torture of the Council of Europe to prepare a periodic inspection of Polish isolation institutions in July 1996.
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Of the 399 graduates of the Foundation’s Human Rights School, 22 established in 1991, 20 are police officers. The Foundation has also organized two seminars on monitoring the police for the School’s graduates. Members of the Helsinki Committee have also contributed as experts to the work of parliamentary committees preparing police-related laws. 23 It can be regarded as a success that in 1995, when the Law on the Police was being amended, the Helsinki Committee’s experts managed to add a provision stating that the police serve society. However, an attempt to add another provision on judicial review of operational wiretaps failed. A draft amendment of the Law on the Police (of 1998–99), prepared by the Ministry of Internal Affairs and Administration, does provide for judicial review of such measures, as the Helsinki Committee’s experts demanded back in 1995. 24 One of the members of the Helsinki Committee is also a member of the Board of Consultants attached to the Chief Commander of the Police. The Board gives opinions on draft laws pertaining to public safety and order, and on proposed changes in the Polish police reform. In cooperation with the police, a staff member of the Helsinki Foundation for Human Rights acts as a consultant on professional improvement programs for functionaries of district and provincial police headquarters from the viewpoint of the inclusion in those programs of human rights issues. Since 1995, in cooperation with the Center for National Security Studies, Washington, DC, the Helsinki Foundation for Human Rights has been implementing the ‘Security Services in a Constitutional Democracy’ project. Besides the United States, the project has partners from 14 Central and East European countries. A document has been developed within the framework of the project, Security Services in a Constitutional Democracy: Principles of Oversight and Accountability. 25 The document gained the preliminary approval of the Council of Europe, the International Helsinki Federation for Human Rights, and several other agencies. Submitting its application to NATO in September 1997 in Brussels, the Polish Government added the text of the ‘Principles’ to a specially prepared brochure, together with information about the cooperation of the Office of the Prime Minister and the project, as an example of joint action with the ‘third sector’ in this field.26 Basically, the project deals with the functioning of the security services; however, a number of detailed issues also relate to criminal policy (as, for example, the use of wiretaps and other operational measures). 209
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2.2 ‘La Strada’ Program for the Prevention of Traffic in Women in Central and Eastern Europe The program has been operating in Poland since 1995, implemented by four partner organizations: the Dutch Foundation against Traffic in Women (STV), the Polish Feminist Association, the Young Women’s Christian Association (YWCA), and the Czech Central European Center for Consultation on Women’s Projects, ProFem. The activities of ‘La Strada’ include, first and foremost, education towards the prevention of traffic in women. The organization has launched a campaign aimed at enhancing the awareness of women and teenage girls, the potential victims of this offense. Besides the media, the campaign uses distribution of leaflets and videocassettes, as well as meetings with schoolchildren. Police officers are also trained, especially those from smaller localities. The organization has prepared a brochure dealing with different aspects of the traffic in women; it is distributed to—among other groups—the police. 27 Representatives of ‘La Strada’ have taken part in several police seminars on prostitution and the traffic in women. Officers dealing with these areas have also contributed to courses organized by ‘La Strada’ for the organization’s own network of local associates, which means that the education is mutual. The organization has contacts with about 30 police functionaries of different ranks. It is probably owing to ‘La Strada’ that the official website of the Polish police includes information about the traffic in women. 28 Gazeta Policyjna also reports on the phenomenon and on the work of ‘La Strada’. 29 The organization operates telephone services (in Polish and Russian) for victims of the traffic in women. 30 The victims are also offered legal, psychological, and material assistance. From June until November 1998, assistance was rendered to 87 victims. Polish women deported from Western Europe are also assisted. The organization is involved in international lobbying for the propagation of the Human Rights Standards for the Treatment of Trafficked Persons, developed by international women’s organizations acting globally against these activities. The preparation of a special guide for women going to Western Europe is in progress. The guide contains basic information on, for example, labor law, penal law, and social regulations in the five West European countries most often visited by Polish women. Finally, ‘La Strada’ is a party—as the social representative of the victim—in several lengthy trials in cases of traffic in women and rape. 31
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2.3 The Women’s Rights Center
This organization promotes women’s rights, especially in the areas of the prevention of violence against women and sex discrimination. To this end, the Center renders legal assistance to female victims of violence and discrimination, 32 and attempts to influence legislation and its application. The organization’s activists rightly call this latter sphere “enhancing the awareness of law enforcers”. So far, five seminars have been held on violence against women for a total of about 100 police officers and prosecutors. Subjects discussed at the seminars include cultural conditions of violence against women; myths and facts; psychological aspects of the use of violence against women; and international approaches to the phenomenon. In their contacts with Police Headquarters, the activists stressed that they were keen on jointly developing strategies and methods for a more effective struggle against crimes involving violence against women. In the course of the seminars, a number of working contacts have been established with individual functionaries and regional police headquarters. The police invited the Center again to contribute to the force’s own training of the staff of district headquarters (about 40 functionaries). It is difficult to tell to what extent the organization’s activities have changed the attitudes of policemen who receive complaints from battered wives; however, an interest in this problem on the part of policemen of different ranks can now be discerned. The Center’s activists plan, in cooperation with the police, to start a program against gender-related violence in a Warsaw district. 33 The organization runs a telephone service for victims of violence. In cooperation with the Judges’ Association, ‘Iustitia’, it organized two sessions of the Violence against Women Tribunal, broadly covered by the media. During the Tribunal’s sessions, victims gave accounts of their experiences. Besides victims and NGOs, the proceedings were attended by representatives of the judiciary, the prosecutor’s office, the police, and researchers. 2.4 The Press Freedom Monitoring Center, Polish Journalists’ Association The organization has been operating in Poland since 1996. It monitors the observance of freedom of speech, and takes an interest in professional standards for media work. It has developed a document, ‘The Principles of Media Work in Crisis’, containing draft standards for media work in situations involving a particular 211
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threat to public order. 34 The origin of the ‘Principles’ may be traced to the already-mentioned events in S upsk (see note 12). During the riot, a local radio station broadcast the name and address of the officer who had contributed to the boy’s death. This caused a threat to the well-being and perhaps even the life of the officer’s family members. An investigation found that, despite the statutory duty provided by the Law on Radio and Television Broadcasting, the station had failed to keep the tapes of the unfortunate recordings. 35 To prevent similar incidents in the future, the Press Freedom Monitoring Center—with the full approval of the press department of the Main Headquarters of the Police— prepared the above-mentioned document. It is a valuable draft of standards for media work in such situations, and is now being discussed by professional circles. 2.5 Jolanta Brzozowska Association against Crime Unlike the bodies already mentioned, this is not a human rights organization. It was established after the death of Jolanta Brzozowska, aged 21, murdered during a burglary in 1996. Its founder and principal activist is the woman’s brother-in-law, Krzysztof Orszagh. 36 Its goals include “action aimed at facilitating the detection of persons guilty of crimes against life and health…action aimed at bringing offenders back into society” (article 1 of the statute). To this end, the Association “cooperates with the prosecuting agencies and propagates the principle of society’s cooperation with these agencies” (article 7 of the statute). Its activists have participated in several notorious murder trials as social representatives or auxiliary prosecutors. The Association campaigns against the state monopoly regarding the issuing of ‘wanted’ notices, and for the victims’ right to publish private notices. It also acts towards a ban on the sale of wooden baseball bats, which in Poland are used almost exclusively as weapons. The Association’s activists undertake activities to enhance the awareness of law enforcement officers. “We want the prosecutor who starts an interrogation with a warning about responsibility for false depositions to show, at least with the tone of his voice, that he understands the victim’s feelings. We want the persons who notify the family to use tact instead of stating dryly: ‘Your brother is dead’ … We also want the term ‘the deceased’ banned from the courtroom: to the victim’s friends and relatives present during the proceedings, the ‘deceased’ is their friend, son, or hus37 band”.
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The Association has gone through an interesting evolution, from a resolute approach to the struggle against crime (demands for restoration of the death penalty, recently abolished in Poland) to activities on behalf of victims’ rights. 38 As a result of those activities, the Warsaw Police Commander ordered that victims of rape who report the offense be dealt with by policewomen (which is not required by the code of criminal procedure). The policewomen are to receive appropriate training from the Association’s psychologists and lawyers. 39
3. Discussion The activities of the above organizations constitute only the beginning of the building of civil society. Human rights still appear to be an attractive area for non-governmental organizations. Organizations dealing with women’s rights are particularly active. This is not without interest and approval on the part of the police, whose consent to NGO work is indispensable. Having gone through a stage of documenting human rights violations, we have now entered the toilsome and strenuous stage of ‘organic work’— that is, the broad education of society, the police included. Changing consciousness and ways of thinking is the most important task here. Some changes for the better can already be discerned in police work. The police have started to understand that strong ties with the community are valuable in police work. “One (and perhaps the most important) value is that police officers shall be an integral part of the community and work in partnership with the local community”. 40 Changes have also been initiated by the police themselves. 41 One example is the fact that the Chief Commander of the Police appointed the above-mentioned Board of Consultants, a police advisory board composed chiefly of professors of law and criminology. What promotes police ties with society are initiatives towards decentralization, such as provisions facilitating local influence over the appointment of the head of the local police precinct. Starting from 1 January 1999, under the amendments of the Law on the Police, appointments to the position of district commander or head of a police precinct require an “agreement with the head of the district” or “consultation with the local village administrator (mayor)” respectively (articles 6c– 6d of the Law on the Police). This regulation will contribute to a perception that the police are serving society.
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Citizens’ impact on police conduct is most obvious in small communities. Contacts between the police and citizens are closer: the officers usually live in the locality, and police conduct is more visible. Besides, in smaller towns and villages the police have fewer opportunities for abuse. The inclusion of citizens on, for example, disciplinary boards which examine cases of police abuse may also lead to the strengthening of the mechanisms for formal and informal review of police work. 42 This way, both non-governmental organizations and the police have a greater opportunity to be seen by society as necessary elements of the democratic system. Yet transition from the recent police state to a free, open society requires incessant work on the part of the police, NGOs, and citizens.
Notes 1 R. Weber, ‘Monitorowanie postêpowania policji’ [Monitoring of police conduct], in Monitorowanie policji i wiêzien [Monitoring of the police and of prisons], ed. A. Rzeplinski (Warsaw: Helsinki Foundation for Human Rights, 1995), p. 11. 2 It happens relatively often in Poland that populists reduce this demand to an increase in the number of police officers (on the streets) or in the police budget. 3 A reference to several events in the postwar history of Poland which involved mass beatings by functionaries of the Civic Militia (for example, in 1968 and 1976). 4 Characteristically, only two surveys were carried out in Poland before 1989 (in 1967 and 1984–85) which dealt with the Civic Militia. The findings were treated as confidential materials for internal use. See T. Cichorz, ‘Źródła społecznej niechêci do wspoldzialania z Policja’ [Origins of the social reluctance to assist the police], in Policja a społeczeñstwo. Wybrane problemy [Police and society. Selected issues], ed. P. Majer and A. Misiuk (Szczytno: Wydaw. Wyzszej Szkoly Policji, 1997), p. 73. 5 Functionaries were by definition loyal to the Communist Party in terms of ideology. This followed, for example, from the form of the oath taken by functionaries of the Civic Militia and Security Service which obliged them to “be faithful to the program of the Polish United Workers Party” (article 1, section 2 of the Law of 31 July 1985 on Service of Functionaries of the Civic Militia and Security Service, Journal of Laws, No. 38, item 181), and also from their statutory duties, formulated as follows “even at the risk of their lives … to perform tasks … that follow from resolutions of the central agencies of the Polish United Workers’ Party” (Article 34 of the Law). 6 The long functioning of censorship was probably a side-effect of the public’s interest in the police. Discussion of a variety of matters re214
The Police and Non-Governmental Organizations in Poland lated to crime, prosecution, and the work of the Civic Militia was prohibited. 7 Ocena instytucji publicznych. Komunikat z badañ [Public institutions appraised. Survey summary] (Warsaw: CBOS January 1999), p. 8. Duplicated typescript. 8 If political institutions are excluded, police ranked seventh in the survey, after Polish Radio, the fire brigades, public television, the National Bank of Poland, the Roman Catholic Church, the Supreme Audit Commission, and the stock exchange. With regard to criticism, the force ranked second after the health service, which was criticized by 69 percent of respondents. After ‘Lekarz zle widziany’ [Doctors out of favor], Gazeta Wyborcza, No. 363 (29 December 1998), p. 3. The critical attitude towards the police persisted: in June 1999, 30 percent of respondents praised, while as many as 51 percent criticized the police. See data published on the Social Survey Studio website, at: www. pbssopot.com.pl/wyniki_instytucje0699.html. 9 Presti¿ zawodow a struktura zarobkow. Komunikat z badañ [The prestige of occupations and the structure of earnings. Survey summary] (Warsaw: CBOS September 1998), p. 8. Duplicated typescript. 10 Uczciwoœæ i rzetelnoœæ zawodowa. Komunikat z badañ [Professional honesty and reliability. Survey summary]. Warsaw: CBOS January 1998, p. 3. Duplicated typescript. 11 A. Siemaszko, ‘Ciemna liczba przestêpstwa w Polsce’ [The bleak crime figures in Poland], in IPSiR dzisiaj. Kniga jubileuszowa [The Institute of Social Prevention and Rehabilitation today. Jubilee book], ed. M. Porowski (Warsaw: IPSiR UW, 1998), p. 473; A. Siemaszko, ‘Przestepczosc nieujawniona. Porownanie polskich rezultatow ICVS ‘96 i ‘92’ [Unreported crime. Polish findings of ICVS ‘96 and ‘92 compared], Archiwum Kryminologii 23–24 (1997–1998), p. 58. 12 In early January 1998, in the town of Słupsk in northern Poland, after a basketball game involving the local team, a police officer, Dariusz W., struck several blows with his truncheon on the back of the head of a basketball fan Przemyslaw Cz., aged 13, who was trying to run away from the police. The boy fell dead. The officer was indicted for battery resulting in death. Another officer, Robert K., was also brought before the court as co-defendant, accused of failing to help the victim. During the event, he stayed in the police car and ignored requests to call an ambulance. After the boy’s death, riots and social unrest broke out in the town. Dariusz W. was sentenced to 6 years imprisonment by the district court. The other defendant was sentenced to 8 months imprisonment, suspended, for failing to help the victim. C. Lazarewicz and K. Nalecz, ‘Bil, zeby siê wyzyc’ [Battered the boy to blow off steam], Gazeta Wyborcza, No. 109 (12 May 1999), p. 10. 13 Characteristic in this connection is the stress on social support in the official pronouncements of representatives of the force. For example, asked by a journalist whether the Polish police were too brutal or too gentle, the new Commander, Jan Michna (appointed by Prime Minister Buzek), said: “I am convinced that the Słupsk events are not going to result in the police avoiding intervention and fearing to use coercive measures in justified cases. There is vast social consent to our resolute response to acts of vandalism and hooliganism. The problem is that af215
The Police and Non-Governmental Organizations in Poland ter several unhesitating interventions voices could be heard accusing the police of excessive brutality; if we renounce the use of constraint, we will be accused of pursuing an ostrich policy. This vicious circle has to be stopped” (emphasis added—A. K.). M. Cielemiecki, P. Kudzia, and G. Pawelczyk, ‘Policja obywatelska. Rozmowa z Janem Michna, komendantem glownym Policji’ [Civic police. An interview with Chief Commander of the Police Jan Michna], Wprost, No. 7 (7 February 1998), p. 19. 14 In Poland a code governing police interrogations is still lacking. This fact was noted by the Committee for Prevention of Torture of the Council of Europe, which recommended that the Polish authorities introduce such a code. Report to the Polish Government on the visit to Poland carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 30 June to 12 July 1996. CPT/Inf (98) 13, Strasbourg, 24 September 1998, p. 30. As to the code of police professional ethics, it has not yet gone beyond the draft stage. 15 The procedure adopted when dissolving the Civic Militia and Security Service, and when vetting police functionaries in 1990, continues to give rise to controversies. This is shown among other things by an application lodged with the UN Human Rights Committee by a former functionary of the Security Service, W. Kall. The application concerned an alleged violation in the course of the vetting procedure of Article 25 of the International Covenant on Civil and Political Rights. In 1997, the Committee found (by a majority of 11 to 3 votes) that the procedure provided for by Polish law had not violated Article 25 of the Covenant. View of CCPR of 29th of September 1997. Communication No. 552/1993. CCPR/C/60/D/552/1993. Duplicated typescript. Not only those actually subjected to it are dissatisfied with the 1990 vetting procedure, but also the right-wing forces in the present Parliament. During a session of the Parliamentary Committee for Internal Affairs and Administration, Member of Parliament M. Kaminski (Solidarity Electoral Action) asked the Chief Commander about the number of former functionaries of the Security Service now in service with the police, and the number rejected as a result of vetting. According to the written response of the Chief Commander, 7,237 of the 101,184 policemen in service on 1 February 1998 were former functionaries of the Security Service at different periods. By 1 August 1998, the number of former functionaries of the Security Service had been reduced to 6,792 persons. All of them—claimed the Commander—had been submitted to statutory vetting procedures (in 1990) and duly accepted for service in the police. At the same time, the Commander admitted in his response of 4 November 1998 to the MP’s next question that “the vetting procedures provided for in the law could not be applied to almost 26 percent of the 6,741 policemen who had been functionaries of the Security Service at different periods”. This might mean, among other things, that functionaries of the former Security Service who had retired or resigned in 1990 could have joined the police after the vetting procedure had been completed. (Data and quotation based on information and correspondence obtained from M. Kaminski, MP).
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The Police and Non-Governmental Organizations in Poland 16 R. Weber stresses a change in police mentality as one of the aims of monitoring the force’s conduct. Among the possible methods, the author mentions meetings with policemen of different ranks and discussion of specific cases known to the NGO from its own work, and the participation in such meetings of police officers from established democracies who would present their own experiences and the methods of police oversight applied in their countries. “This way, nongovernmental organizations and their activities stand a greater chance of being seen as a necessary element of a democratic system”. R. Weber, ‘Monitorowanie postepowania policji’, p. 19. 17 A. Rzeplinski, ‘Non-Governmental Organizations and Police’, Presentation at Seminar on Human Rights and Police, Strasbourg, 6–8 December 1995 [DH-AW-PO (95) 24]. 18 The Helsinki Committee in Poland came out into the open in 1989, publishing a list of its members; it had previously operated underground. Its underground activity consisted mainly of documenting human rights violations in Poland and informing the public and the international community about such violations. The Committee prepared 8 reports, published not only in the Polish underground but also abroad. One of the reports was submitted to the CSCE Madrid Conference. The reports also documented abuses committed by the Civic Militia and Security Service. In several cases of notorious political killings, the Committee’s activists carried out an independent investigation—for example, in the case of the death of a peasant independence fighter in Kujawy in central Poland, Piotr Bartoszcze. After 1989, the case was reexamined by a specially appointed parliamentary committee, but the killers were never found. See ‘Smierc Piotra Bartoszcze’ [The death of Piotr Bartoszcze], Praworzadnosc, No. 16 (1987), pp. 26–76. 19 The two publications were Prawa człowieka a policja. Wybor dokumentow Rady Europy i ONZ [Human rights and the police. Collection of Council of Europe and UN documents], ed. A. Rzeplinski (Legionowo: Centrum Szkolenia Policji, 1992); and Prawa cztowieka a policja. Problemy teorii i praktyki [Human rights and the police: theory and practice], ed. A. Rzeplinski (Legionowo: Centrum Szkolenia Policji, 1994). 20 For instance, M. A. Nowicki, who writes for the national daily Rzeczpospolita, and A. Rzeplinksi, whose column appears in Prokuratura i Prawo, a monthly published by the Public Prosecutor’s General Office and designed for practicing lawyers who specialize in penal law and criminal procedure. 21 Such as police transgressions of power, abuses of the means of direct coercion, omission of obligatory tasks, and inhuman or degrading treatment of citizens. 22 The School is a course of 200 hours, held by outstanding Polish specialists in human rights and freedoms, and ending with an examination. The graduates are recommended by the Foundation as lecturers on human rights at below-university level. 23 A. Rzeplinski, ‘Non-Governmental Organizations and Police’. 24 The draft simplifies (decentralizes) the procedure in cases of wiretapping and surveillance of correspondence at the stage of operational activities and detection (before the institution of preparatory proceed217
The Police and Non-Governmental Organizations in Poland ings). The powers to order technical operational measures for a period of 3 months (extended by another 3 months if necessary) would be vested in the district prosecutor on the motion of the provincial police commander. At the same time, the measures would be subject to judicial review: their application would require the approval of the president of the court of appeal or a judge appointed by that president. See W. Jasinski and D. Potakowski, ‘Podsluch i kontrola korespondencji’ [Wiretapping and surveillance of correspondence], Rzeczpospolita, No. 22 (27 January 1999), p. 22. 25 ‘Security Services in a Constitutional Democracy: Principles of Oversight and Accountability’, Bulletin No. 1. In the Public Interest: Security Services in a Constitutional Democracy (1 June 1998), pp. 2–4. 26 Sluzby specjalne RP. Prawne aspekty cywilnego nadzoru [Security services of the Republic of Poland. The legal aspects of civilian oversight] (Warsaw: Office of Prime Minister; Office of the Security Services Department, 1997), pp. 27–34. 27 Handel kobietami. Informacje o zjawisku [Traffic in women: basic information] (Warsaw: “La Strada” Foundation Against the Traffic in Women 1998). 28 See: http:/www:kgp.gov.pl./matpol/niewol.html. 29 A national police biweekly. 30 From June until November 1998, 232 persons called: 56 were victims, 16 were probable victims, and 81 were family members of victims. 31 Pierwszy rok La Strady: rezultaty pierwszego w Europie Wschodniej i Centralnej programu prewencji handlu kobietami finansowanego ze rodkow Unii Europejskiej, programow Phare i Tacis [La Strada’s first year: results of the first program for the prevention of the traffic in women in Central and Eastern Europe, financed by the European Union within the Phare/Tacis programs] (Warsaw: 1996). Duplicated typescript. 32 The Center published a valuable brochure Jeli jestes ofiar przemocy. Poradnik prawny dla kobiet [If you have fallen victim to violence. A legal guide for women] (Warsaw: Women’s Rights Center, 1998). 33 Information obtained from the Center’s website (http://free.ngo. pl./temida) and from Urszula Nowakowska of the Women’s Rights Center. 34 Compiled by K. Jakubowicz, ‘Zasady pracy dziennikarskiej w sytuacjach kryzysowych’ [The principles of media work in crisis]: http://www.freepress.org.pl. 35 In a national survey carried out several days after the Slupsk incident, 50 percent of respondents agreed that “the media aggravated the situation and did nothing but pursue sensationalism”. On the other hand, 35 percent of respondents praised the role of the media. Opinie o wydarzeniach w Słupsku, roli policji i mediow. Komunikat z badan [Opinions on the Słupsk incident and the role of police and of the media. Survey summary] (Warsaw: CBOS, January 1998), p. 10. 36 After the death of Jolanta Brzozowska, he conducted a ‘private investigation’, described afterwards in an interview given to Gazeta Policyjna. See ‘Zeby nie zwariowac’ [So as not to go crazy], Gazeta Policyjna, No. 43 (15 November 1998), p. 3.
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The Police and Non-Governmental Organizations in Poland 37 ‘Ofiara to nie “denat”. Rozmowa z Krzysztofem Orszaghiem’ [The victim is not the ‘deceased’], Gazeta Wyborcza, No. 298 (21 December 1998), p. 4. 38 The Association’s website (www.wp.pwn.com.pl./iso/ofirmie/wppwn/goscie/spz.htm) starts with the following appeal: “If you, too, want to live in a society ruled by law, join us. NO MORE BANDITRY AND LIBERAL TREATMENT OF CRIMINALS!”, and ends with a declaration that the Association supports the draft bill on increasing criminal responsibility in cases of offenses against the safety of citizens, submitted by J. Kaczynski MP (the draft is highly restrictive and postulates restoration of the death penalty, among other measures). 39 The Commander’s order read: “In the interests of the injured person, I hereby order that in cases of rape the female victims of such offenses be heard exclusively by policewomen”. After ‘Kobiety pomoga kobietom’ [Women to help women], Gazeta Stoleczna [local supplement of Gazeta Wyborcza], No. 29 (4 February 1999), p. 4. 40 T. Feltes, ‘Improving the Training System of Police Officials. Problems of Creating an International Standard for Police Officers in a Democratic Society’, in Police in Transition. A Survey (n. p., n. d.). 41 This is shown by the introduction of the American Crime Stoppers program in Radom, for the first time in this part of Europe,. It was initiated by a single officer who contacted his American colleagues via the Internet and started the program in 1997, assisted by the local authorities. See http://www.crime-stoppers.top.pl, and P. Matracki, ‘Szóste Ÿródło’ [The sixth source], Gazeta Wyborcza, No. 241 (14 October 1998), pp. 22–23. 42 The need for a civilian review board for police activity (besides internal review departments within the force) is stressed by ACLU activists: Fighting Police Abuse: A Community Action Manual (ACLU, 1992).
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Civil Liability and Police Accountability in the United States Jerome H. Skolnick
Jill Brown’s husband, Todd Brown, made a costly and painful choice when he turned his truck around and sped away from an Oklahoma police checkpoint in 1991. When police caught up with him four miles later, one deputy pointed a gun at him, and ordered him and his wife out of the car. Reserve Deputy Stacy Burns twice ordered Jill Brown out of the car. When she did not respond, Burns reached into the car. He sharply pulled Jill Brown out, using an ‘arm bar’ technique which involves grabbing an arm by the wrist and elbow. He then spun her around and threw her hard to the ground. Todd Brown claimed that when he heard his wife cry out in pain, he tried to find out what was wrong but was punched repeatedly. As he was being beaten, Brown, referring to the famously televised beating Rodney King sustained in Los Angeles, said, “This is just like LA, huh boys?”, to which Reserve Deputy Burns reportedly responded, “No, this is a helluva lot worse.” Jill Brown sustained severe injuries to both her knees. She later had four operations, two on each knee, and will eventually require total knee replacements. She sued the County Commissioner of Bryant County, Oklahoma, in a Federal District Court, a trial court, under the 1871 Civil Rights Act, which has only relatively recently been used, with some success, to reign in police violence by establishing civil liability for unlawful use of force by the police. Under the US Constitution, citizens have since the 1960s been able to challenge evidence obtained by police, when the police have conducted illegal searches and seizures, or have conducted illegal interrogations. If the challenge is successful, the illegally obtained evidence is suppressed. Even if the evidence is suppressed, however, the police may at most lose a conviction. If the case is about drugs, the police usually feel they will have another opportunity to catch and convict the suspect. If the case is about homicide, the police may well be able to convict without the con-
Civil Liability and Police Accountability in the United States
fession of the suspect. Indeed, the requirement to ‘Mirandize’ all suspects (that is, to read them their rights) has impelled police to find evidence other than confession. Reports of police torture while suspects are in custody—euphemistically called ‘the third degree’—are virtually a thing of the past in America. Contemporary police violence in the United States often has little to do with obtaining a conviction. Rather, it exemplifies a form of the social control of a population by threat, intimidation, and physical punishment. For example, in Los Angeles, the beating of Rodney King showed what turned out to be an unwritten custom and policy of inflicting punishment on the street to those who resist police authority, especially after a high-speed chase. That beating was televised repeatedly and worldwide by CNN. I was asked by CNN to comment on it, to explain to viewers how they should understand it. I said that the viewers will be focused on the horrific beating. What was more revealing about the Los Angeles police department, however, was that a dozen or so other officers were watching. That meant to me that the officers who were doing the beating could count on the police who were watching to affirm any story the police doing the beating would tell. Moreover, the watchers could count on higher-ups in the police department to believe them rather than the complaints of any civilian witnesses. Eventually, as you know, the officers were acquitted in a state trial in a predominantly white suburban community, but were later convicted in a Federal District Court for having criminally violated Rodney King’s civil rights. King also collected a civil penalty of 3.5 million dollars from the City of Los Angeles for having a policy in its police department that encouraged police to violate civil rights. It is this avenue of accountability—civil accountability of the police organization and the local government it represents—that I shall address in this paper. I am painfully aware that civil accountability measures in the US may not prove applicable or practical in Eastern Europe. I present it not in the spirit of giving advice on how to develop measures of police accountability, but simply for information purposes. After all, how police conduct themselves in a democracy is where the rubber hits the constitutional road. This avenue of accountability was written into Federal Law by the US Congress in 1871, following America’s Civil War over slavery and secession. The Civil Rights Act provided both civil and criminal remedies for people whose Constitutional rights had been violated by persons “acting under color of any statute, ordinance, regulation, custom, or usage”. For nearly a century, the
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criminal provisions of this act (known as the Ku Klux Klan act) were only occasionally invoked. The act had been intended by the post–civil war Congress, (the Reconstructionist Congress, which included African Americans) to protect newly freed slaves from the depredations of Southern officials. The civil side of the act—which lawyers generally refer to as Section 1983—lay nearly dormant, however, and lawsuits alleging violations of Constitutional rights by police were rarely filed. What accounts for this long latency period? The first reason was an irresolvable paradox, a ‘Catch 22’ situation. If police officers violated the Constitutional rights of citizens without breaking a state law—as Southern police officers did when torturing black suspects—officers could argue, in good faith, that they had done nothing to violate state law. The first US Supreme Court case overruling a state Supreme Court did not occur until 1936. In that case, Brown v. Mississippi, the Mississippi Supreme Court upheld the conviction of three black men on a murder charge who ‘confessed’ only after they were severely whipped and tortured in other ways. If, in other states, officers violated state law (by torturing or assaulting prisoners) suits were doomed to fail because officers had acted in violation of the color of state law. The second reason for the rarity of ‘1983’ suits was more mundane—it was a matter of money. In traditional personal injury suits, lawyers generally work on a contingency-fee basis— they charge the plaintiff no fee ‘contingent on the outcome’ of the lawsuit. Under this arrangement lawyers work for a percentage—usually between 30 and 40 percent—of the award. Victims of civil rights violations are typically poor people who cannot afford to pay lawyers fees out of their own pocket. Those who committed the civil rights violations were typically police officers. Even if the defendant was to be awarded a large judgment, the officer could not pay it, even if he were to declare bankruptcy. A seven-figure verdict means nothing when the defendant earns only a four-figure salary. The first barrier to civil rights litigation—no legal liability when defendants had violated state laws—was removed in 1961. In that year the Supreme Court decided a case (Monroe v. Pape) where Chicago police, acting without a warrant, had broken into the home of an African–American Chicago resident whom they wanted to question in connection with a murder investigation. The police terrorized the family of the suspect, forcing his six children out of bed, marching them into the living room, and demanding that they stand there motionless and naked. They ransacked the home, tore up bedclothes, emptied dresser drawers and 223
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threw the contents on the floor. They handcuffed the father, who was a Black Panther member, and interrogated him along the way without ever filing specific charges. He was not taken to court and was not allowed to call his family or a lawyer. In the face of compelling evidence that local or state officials tolerated or encouraged Constitutional violations by the police, the Supreme Court put the Federal judiciary in the business of enforcing Section 1983: “Between 1961 and 1977”, Justice Lewis Powell was later to write, “the number of cases filed in Federal court under civil rights statutes increased from 296 to 13,113”. How about the money barrier? That was lowered considerably in 1978 in a case (Monell v. New York) about as far removed from police practice as one could imagine. Ms. Monell, a pregnant social worker, had applied to her supervisor for maternity leave. She was told that it was her department’s policy to deny maternity leave and to require new mothers to resign. Monell sued, and was represented by a lawyer who had a special interest in the case, her husband and the father of her child, Oscar Chase, a brilliant attorney who is currently Vice-Dean of the NYU School of Law. In the lawsuit, Chase argued that she—and several other women who joined in her lawsuit—were denied equal protection of the law by a policy that unfairly discriminated against women and their careers. The Supreme Court agreed with Ms. Monell’s claim and established a major legal principle. Where a representative of an official agency (like Monell’s supervisor) violates an individual’s Constitutional rights as a result of the agency’s official custom and policy—such as the policy of barring maternity leaves—the agency may be held liable. In reaching this decision the court defined custom and usage broadly. The policy need not be written down. Custom or usage, the Monell court wrote, may be found in persistent and widespread practices of officials, which, even if not written, are so permanent and well settled that they have the force of law. By recognizing municipal liability, the Monell case opened the treasuries of cities to civil rights plaintiffs. If they could demonstrate that they had been hurt by employees whose wrongful acts were tied to a custom or practice of the agency, including poor training or supervision, they could be compensated for the damages they had suffered. Plaintiffs also benefited enormously from another act of Congress. In 1976, Congress enacted a law that permits judges to award successful plaintiffs “reasonable attorney’s fees as part of the costs”. Consequently, civil rights litigation was no longer tied to the contingency fee system. This is especially important in 224
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cases where the civil rights violation is based on the use of excessive force by police. In many of these cases, the victims are ‘unsympathetic’ characters. Rodney King, for example, was on probation, was driving under the influence of alcohol, took police on a dangerous high-speed chase, and was obstreperous when caught. Usually, juries do not give such people large awards, even when they win, which means that lawyers are normally unwilling to accept such cases on a contingent fee basis. The attorney’s fees are independent of the award to the plaintiff. In one interesting case, an attorney was awarded nearly 30 thousand dollars in fees, while his clients—who were armed robbers—collected 2 dollars from the jury. In sum, lawyers are motivated to bring such cases if they think their client can win a verdict, even if the jury award is small. Although it may seem puzzling that juries would award a plaintiff with a victory but deliver relatively small damage awards, there is a reason for the anomaly. Jury decisions in these cases seem to turn upon jurors’ assessments of the plaintiff ’s character rather than upon the severity of the police action. No matter how badly the police act, it is not easy for a juror to award damages to an authentic criminal against the police who arrested him. Nevertheless, attorney’s fees may be quite substantial and may send a message that offensive police actions should end. Let us return to Jill Brown and her case. When she sued the Bryant County Commissioner under the 1871 Civil Rights Act in a Federal Trial Court (called a District Court) Ms. Brown prevailed. A jury awarded Jill Brown’s damages and legal expenses of about $800,000, after finding that Burns did not have probable cause to arrest her and used excessive force in doing so. Burns had been hired by his uncle, Bryan County Sheriff B. J. Moore. Moore testified that he had been generally aware that Burns had a lengthy police record, but said on cross examination that he had not noticed the assault convictions, the record of resisting arrest, public drunkenness, and using false identification. The 5th Circuit Court of Appeals (New Orleans) upheld the jury award after noting that Burns’ background evidenced a “deficient character”, a “propensity for violence”, and a “disregard for the law”, any or all of which should have precluded his employment as a law enforcement officer. However, on 28 April, the Supreme Court overruled the 5th Circuit in a 5–4 decision written by Justice Sandra Day O’Connor. The court held that to sustain a claim under the Civil Rights Act of 1871, the plaintiff has to show that the municipality itself was the “moving force” behind the injury. 225
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The dissent, by Justice David H. Souter, argued that a city or county should be held accountable for actions by a policymaker, such as a sheriff, if the single act amounts to “deliberate indifference to a substantial risk that a violation of federal law will result”. In plainer English, since Moore was a county official who made hiring decisions, he qualified as a policymaker. In this case, he made a decision reeking of nepotism, hiring a nephew who was a time bomb. Therefore, the county should pay for the injuries caused by the resulting explosion. The larger significance of the Supreme Court’s Brown case ruling is in its implications for compensating victims of police brutality across the nation by invoking a narrow “custom and practice” interpretation of states’ and cities’ responsibilities under the 1871 act. This is a loss not only to Jill Brown, but to future victims of brutal police officers. Had a similar situation occurred in California or other states that require government bodies to pay most judgments against public employees, Jill Brown might well have been compensated. The more liberal dissenters were trying to move civil rights law in that direction of responsibility, holding the county liable for damages traceable mainly to an administrator’s decision. But the Supreme Court majority upheld a more rigid interpretation of ‘custom and practice’ jurisprudence, as they attempted to draw bright lines as to when municipalities can be held liable for Constitutional torts. They cannot be held liable “on a respondeat superior theory”, but can be when “execution of a municipality’s policy or custom…inflicts the injury”. As Justice Breyer points out in his dissent, the attempt to maintain that distinction leads to ever finer and scarcely intelligible practical consequences and “suggests that we reexamine the soundness of the basic distinction itself ”. Besides, the practical result could hardly have escaped the majority’s notice—that the decision protects local taxpayers while denying compensation to a small segment of deserving victims of police brutality. To some of us, that seems a terrible shame. Nevertheless, the principle of civil liability is still there. Many police departments and professional police organizations have responded to the threat of civil liability by developing what are called ‘risk management’ efforts, that is, crafting policies, directives, and training, especially in such high risk areas as car chases and use of force. In City of Canton v. Harris even Supreme Court conservatives conceded that where there is “a clear constitutional duty implicated in recurrent situations that a particular employee is certain to face…failure to inform city personnel of that duty 226
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will create an extremely high risk that constitutional violations will ensue”. Other Monell cases have held police agencies liable for inadequate policy and training regarding non-lethal force, strip searches, and vehicle pursuits. It is likely, and somewhat ironic, that Monell (a decision by the conservative court of Chief Justice Warren Burger), has had—and will continue to have, despite the Oklahoma v. Brown decision—as significant an effect on police operations as any case decided by the liberal Warren Court. Mapp affected police searches, and Miranda had major consequences for police interrogation practices, but Monell can offer a remedy for wrongful conduct in virtually every sphere of police activity, including brutality and use of force.
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Police Brutality
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Police Brutality and Police Torture Budimir Baboviæ
Police brutality appears to be a recurrent topic of discussion and research, particularly in the United States and the United Kingdom. Many criteria have been used by police scholars to delineate various types of police brutality as a specific form of police misconduct: unnecessary violence, the unjustified use of force, the use of excessive force, the excessive use of force, and physical or verbal brutality. James Fyfe, one of leading authorities in the field, underlines the difference between police brutality and unnecessary force. He defines police brutality as extralegal violence and “the willful and wrongful use of force by officers who knowingly exceed the bounds of their office”. 1 However, there are reasons to consider the difference between instrumental and non-instrumental brutality as cardinal. Instrumental brutality is committed when the police use force with a view to achieving a task or design, most frequently to elicit confessions or to induce compliance. It is practiced mostly on police premises or in other concealed places, hence upon persons in custody or otherwise in police hands. Whether ‘extralegal’ or illegal, it is a component of what are known as ‘police methods’ and reflects the conviction that only force is effective. It is known about and more or less tolerated within the police. Battery and other inhuman treatment on police premises are a serious problem, even in established democracies. This kind of brutality should be designated as ‘instrumental’. This concept is founded on the definition of torture approved in the UN Convention against torture. 2 There is no distinction between instrumental brutality and torture except that torture relates to all public officials or persons acting in an official capacity, while police brutality necessarily covers only police officers. The prohibition of torture has become ius cogens inasmuch as it is prescribed by international instruments as well as by the constitutions and laws of individual countries. Several international mechanisms and bodies,
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both global and regional, have been set up to deal with the problem of torture. The abovementioned definition of torture is internationally accepted and has the additional quality of being precise. Therefore, whenever instrumental brutality is discussed within police studies, the notion of torture could helpfully replace the use of the notion of brutality, which appears to be rather vague and euphemistic. In that way the problem would be referred to by its proper name. Given the circumstances under which they occur, cases of instrumental brutality are very difficult to corroborate. The officers adhere closely not only to the ‘code of silence’ that binds them informally, but also to the internal rules imposing secrecy. Rare (if there are any at all) are the cases of this type of police brutality in which the internal disciplinary mechanism is activated without a complaint or some other external requirement. Systematic (or automatic) punishment of the superior officer (together with the offender) in every proven case would constitute a pertinent contribution to eradicating such practices. On the other hand, non-instrumental brutality would be used to refer to the brutality which occurs in everyday police work with no apparent need and without a clear purpose. The view is widespread that the police needlessly abuse people, verbally or physically, very often just with a view to establishing their authority by emphasizing their legal right to use force. Commenting on the general circumstances that lead to use of force by the police, Albert Reiss points out that “many situations that provoke the police to use undue force closely resemble those that give rise to assaults by private citizens. In both cases, the force is exerted in anger against real or imagined aggression”. 3 As a rule, noninstrumental brutality occurs in public places, on the occasion of searches and arrests, during protests, mob action, and demonstrations. The line which separates non-instrumental brutality from the legitimate use of force is not clearly demarcated. Its establishment remains in the realm of ‘police discretion’, which appears to be the most important source of police brutality. Non-instrumental brutality could also be explained by the fact that police work in itself is brutal and dehumanizing, coupled with frustration, phobia, and tension, not to mention an officer’s sense of being under threat in particular situations. The origins of non-instrumental brutality outlined are only exceptionally applicable to instrumental brutality. The crime rate must be mentioned as something which can at least indirectly induce police violence, in the sense that a high crime 232
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rate generates approval of police violence among citizens. A former Polish anarchist who now supports a more brutal police force as a means of reducing crime, disorder, and anarchy provides the most illustrative example. He even implored a bishop to bless the right of the police to be brutal. Almost simultaneously, over five thousand citizens of a municipality near Paris signed a petition against a proposal aimed at restricting police officers’ right to carry arms. Police brutality can be viewed from different standpoints. One frequent approach envisages the problem primarily as a result of organizational norms. The well-known prison experiments by Zimbardo have proven the correlation between mandate and structure of situation on the one hand and the aggressiveness that leads to brutality on the other. During the experiments, carried out at Stanford University, students were divided into guards and prisoners. Those acting as guards proved to be excessively brutal with their ‘prisoner’ colleagues. Making a distinction between the two kinds of police brutality is justified and necessary because they differ in their sources and motivations, the difficulty encountered in uncovering them, and the recognized need for their reduction. Responsibility is ‘dislocated’. If ‘instrumental brutality’ is understood in the sense of torture—and it should be—it would imply chiefly the responsibility of the government bound by international instruments. Non-instrumental brutality generally remains a problem of internal police leadership and local authorities. The proposed distinction between instrumental and noninstrumental brutality is also useful in discussing whether or not a relationship can be established between brutality and the military status and ethos of the police. The importance of this issue is enhanced by the rise of paramilitary policing throughout the European Union. Military status has no substantial influence on instrumental brutality, which is found in both civilian- and military-style police organizations. Statistics are difficult to gather, but seemingly there are no grounds to claim that instrumental brutality has been practiced more by the Guardia Civil than by the Cuerpo Nacional de Policia in Spain, more by the Carabinieri than by the Polizzia di Stato in Italy, more by the Gendarmerie than by the Police judiciare in France, more by the Belgian Gendarmerie before its ‘demilitarization’ than afterwards, and more in Northern Ireland than in England and Wales. A comparison between the current situation in some countries in transition and the situation that existed before the transition is not 233
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possible because of the differences in transparency. Under the Socialist system brutality remained almost totally hidden: fearing further violence, the victims, as a rule, did not dare to reveal it. The situation is now changing, although slowly. As a result of new legislation in many countries, the activity of non-governmental organizations, and a rise in police-related research, cases of brutality are starting to be unveiled, sometimes giving a mistaken impression that the situation is deteriorating badly. As a matter of fact, the trend is in the opposite direction, despite the fact that in many countries in transition the new authorities have not yet attained legitimacy, and they continue to misuse the police (and the army), which has itself lost its previously established identity. Such a situation is encouraging all forms of abuse of power, including police brutality. On the other hand, as far as non-instrumental brutality is concerned, the propensity towards such behavior is obviously intensified by the military status and spirit of the police. The military model of the police organization reinforces the alienation and insulation of the police from the surrounding world. Police accountability is diminished and the risk of brutal behavior is increased. The military model does not encourage contact between police and community; it is not suitable for so-called ‘community policing’ which can be considered as a deterrent to the improper use of force. The concern of the police for the overall well-being of a given area is lacking within the framework of the military model. The military model also promotes the commission and remaining hidden of police brutality. The party or government served by the police tends to protect the Militia and its members in turn. The law is enforced to the degree that it does not jeopardize the Party’s or a government’s policies and position. It should be stressed that a police force can be a militia in everything but name, as demonstrated by the current situation in Serbia. Racism, nationalism, and similar phenomena (such as ethnic conflict, and the production and spread of collective hatred), inculcated in the minds of police officers, regularly generate police brutality. In addition, ethnic conflicts give rise to and nourish impunity, another source of police brutality. In such conflicts everybody fights under the banner of an ethnic or a nationalist design presented as superior, believing themselves to be protected by the supposed superiority of the goal. Unfortunately, this occurs frequently, and ethnic or national solidarity is coupled with professional solidarity and the wrongdoers remain unpunished. The Yugoslav conflicts offer an inexhaustible list of tragic examples. 234
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Police brutality against protesters is a subject in its own right. Problems of public order are the main reason for militarism regaining ground within policing, as demonstrated by Alan Wright. Very often the police exert cruel and inhuman force against innocent people or against people who are exercising a constitutionally granted right. During the opposition protests in Belgrade in 1996–97, a high-ranking Belgrade police officer declared that the police could not beat selectively in such circumstances, they beat everybody who got in the way— including women and children. We may infer from his words that police behavior is comparable to a stampede of buffaloes: as Brian Chapman concluded many years ago: “When a police force moves to break up a riot unpredictable forces are released”. 4 The position of the police within the political system can also have repercussions for brutality. Obviously, the police state is the most auspicious framework since it ensures the role of arbitrator for the police. One should, however, bear in mind the insignificance of police autonomy nowadays. David Bayley rightly underlines that the most important effects the police have on a democracy depend on the policies of government. 5 Numerous factors may reduce police brutality. In Police Brutality, edited by W. Dudley, 6 various suggestions are made: strong internal leadership, internal reform, encouraging contact between the police and the community, prosecuting police perjury, using police foot patrols, civilian review boards, stricter laws, both federal and local reforms, sting operations by private investigators. Obviously, these suggestions can be usefully applied to the countries in transition. However, accountability and oversight should be considered particularly important issues in confronting police brutality. All other means have been tried already, and their deficiencies and scope have been shown. There are two principal reasons for impunity: the ‘code of silence’ in misconduct cases, and fear of the police. The first reason is universal, the second is particularly characteristic of countries in transition because it is obviously linked to the degree of democracy. Fear of the police in these countries is very deeply rooted and it is very often difficult to overcome. Hence the victims of police battery frequently do not file a complaint, for fear of further consequences. Dread of the police exists not only among ordinary citizens, but also within institutions, including courts and prosecutors. In conformity with the UN Convention against Torture (Article 10), the prohibition and punishability of torture should be included 235
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in the rules or instructions issued with regard to police duties and functions, aside from the existence of this prohibition in international and national law. Moreover, police officers should be repeatedly reminded that they are individually answerable when committing an act of torture; that an order from a superior officer or a public authority may not be invoked as justification of instrumental brutality, or torture, according to the Convention (Article 2). The impunity of police brutality is likely to alter mostly as a result of the evolution of international penal law. Demands are becoming more and more frequent that international legal authorities be empowered to effectively enforce fundamental rights. The Pinochet case has been greeted as a victory for justice versus raison d’Etat and a historic about-turn for international law. Although it does not belong to the category of ethnic conflicts, the belated activation of international law in connection with an internal conflict where the norms of international humanitarian law had been breached, undoubtedly constitutes an important precedent. The use of force by the police may sometimes be unavoidable, although there are voices demanding the extinction of this right. 7 More realistic is Jerome Skolnick’s conclusion: “As long as some members of society do not comply with the law and resist the police, force will remain an inevitable part of policing”.8 This statement is correct, and could also be applied to noninstrumental brutality, but instrumental brutality must be repressed much more vigorously, everywhere.
Notes 1 J. J. Fyfe, ‘Training to Reduce Police–Civilian Violence’, in And Justice for All: Understanding and Controlling Police Abuse of Force, ed. W. A. Geller and H. Toch (Washington, DC: Police Executive Research Forum, 1995), p. 163. 2 “Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or confession; punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions”. (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 1; adopted by UN GA 1987). The International Covenant on Civil and Political Rights (1966) stipulates that “No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or pun236
Police Brutality and Police Torture ishment” (Article 7). The same prohibition is postulated by the European Convention on Human Rights (Article 3). The Statute of the International Criminal Court (ICC), adopted in 1998 in Rome, gives a slightly different definition of torture (“intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused”—Article 7, paragraph 2, subparagraph [e]). For the purpose of the Statute, torture constitutes one of the crimes against humanity which are characterized as “acts committed as part of a widespread or systematic [emphasis added] attack directed against any civilian population, with knowledge of the attack” (Article 7, paragraph 1). Hence police brutality committed in ‘normal’ circumstances would not fall under the jurisdiction of the ICC. 3 A. Reiss Jr., The Police and the Public (New Haven, Conn.: Yale University Press, 1971), p. 150. 4 B. Chapman, Police State (London: Macmillan, 1971), p. 87. 5 D. H. Bayley, ‘Who Are We Kidding? Or: Developing Democracy through Police Reform’, paper presented at the Workshop on Policing in Emerging Democracies, Washington, DC, 14–15 December 1995, http://www.ncjrs.org. 6 W. Dudley, ed., Police Brutality (San Diego: Greenhaven Press, 1991). 7 See Harvey Goldstein’s article in New York Times (21 April 1991). 8 J. H. Skolnick and J. J. Fyfe, Above the Law: Police and the Excessive Use of Force (New York: The Free Press, 1993), p. 37.
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Addressing Police Violence in Bulgaria: The Human Relations Perspective 1 Svetlozar Vassilev
1. The Problem There is a discrepancy between the function of the police— keeping social order by pursuing criminals, taking due account of their human rights—and the practice of police officers. There is plenty of evidence—accumulated through research work and analyzed in official documents—which demonstrates that police practice in Bulgaria suffers from a number of inadequacies in this respect (see Council of Europe 1997; Tomov et al. 1996; Vassilev 1997). Why is this the case and what is the nature of the discrepancy between the declared social role and the day-to-day practice of the police?
2. Research Design and Findings A team from the Bulgarian Institute of Human Relations (BIHR) started a research project with the purpose of designing strategies for institutional change. The research method was grounded on in-depth interviews, role analysis, structural analysis, and analysis of the institutional culture of the police. This method is known as action research and was developed by social scientists such as Isabel M. Lyth and Eliot Jaques. In 1995–1996 sixty semi-structured in-depth interviews were carried out with police officers. The interviewed officers were of different ranks and from different departments. The following findings were outlined:
Addressing Police Violence in Bulgaria: The Human Relations Perspective
• Nearly 90 percent of police officers practice different forms of verbal or physical violence, and in 10 percent of cases this develops into torture; • The personal and institutional resources available to investigate the nature and consequences of violent behavior and to deal with it are inadequate. The analysis of the findings outlined four types of reason for police violence: 1. Inadequate selection of police officers. Candidates are not adequately screened with respect to their ability to manage aggression in stressful situations; 2. Inadequate training in police schools and the police academy; 3. High stress levels related to police work; 4. Lack of institutionalized care for the mental health and emotional stability of serving police officers.
3. Analysis of the Research Findings One of the major factors in police brutality is the high level of professional stress. Everyday police work puts police officers in life-threatening situations and provides them with many traumatic experiences—shooting incidents; the wounding or death of colleagues, detainees, or bystanders; suicide; threats against themselves or against family members. As a result, police officers are subject to potent anxieties. According to psychoanalytic theory (Klein 1988; Lyth 1988) overwhelming emotions of this kind can provoke aggressive fantasies and often lead to aggressive behavior. Analysis of factors 1, 2, and 4 listed above clearly shows that they are interrelated. Inadequate selection, training, and mental health care turn even routine police activities into a source of anxiety, leading to a high degree of work-related distress. This has a significant impact on performance, leading directly to police brutality and adversely affecting the personal and family life of police officers. Individual police officers experience despair and feelings of depression, chronic tiredness, apathy, irritability, and aggression. Family life is affected by marital conflicts and divorce. Almost 90
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percent of the police officers interviewed referred to a lack of harmony in the family home, frequent conflicts, and a lack of understanding from their partner. Officers also talked about their difficulties in maintaining a neutral professional attitude and their resort to violence and brutality.
4. Some Aspects of the Institutional Culture Related to Police Brutality in Bulgaria One of the adversarial results of the total lack of institutionalized mental health is that police officers—who work in a closeknit professional group—tend to suppress the emotions that are stirred up by situations they encounter while doing their job. Unhealthy strategies are mobilized in order to cope—denial of fear and vulnerability, denial of anxiety. These lead to unhealthy and unprofessional behavioral patterns. Some examples of the mismanagement of these experiences are alcohol abuse and verbal or physical aggression towards detainees, the general public, or even family members. The lack of an institutional response to these problems amounts to the institutional denial of their existence. This denial is total and operates almost unconsciously as a core institutional defense. This results in a delusive institutional culture which takes the form of the myth of the police officer as a strong hero who is able to cope with everything and everybody without experiencing anxiety, fear, or vulnerability. Another manifestation of this is the false belief that to speak about the emotional dimensions and consequences of police work betrays weakness and deserves mockery. This is one explanation for the reluctance of our interviewees to seek psychiatric help. However, further analysis shows that another important factor contributing to the rejection of psychological care is the paranoid attitude towards the psychologists who work in the police system. The role analysis of the Bulgarian police psychologists found that they are only used to monitor police officers—that is, to select new recruits and to pass serving officers as fit to continue service—and never for the sake of improving their mental health or stability. Not a single psychologist working for the police has the task of providing care for police officers.
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5. The Hypothesis and Paradigm of Human Relations Taking into account the institutional culture of the Bulgarian police (resistance to change, bureaucracy, denial of fear, emotional pain, anxiety, and vulnerability, and the defenses described above) the team is continuing the project with a view to designing strategies based on the belief that working through police violence is impossible without providing institutionally consistent training and care programs for police officers. This differs entirely from government strategies and beliefs which are based only on stopping or punishing police violence, but without offering adequate institutional reform and care. Social sciences (social psychology, psychoanalysis, system theory), however, provide the so-called ‘paradigm of human relations’. This postulates that individuals or institutions cannot be changed unless their inner resistance—deeply rooted in the subconscious—is taken into account.
6. Strategies for Institutional Change in Accordance with the Human Relations Paradigm The project team has tried to help the police cope with the problem of police brutality in a number of ways: • 1996. Training in the manifestations and consequences of stress, and strategies for dealing with it. This was provided for assistant-professors of psychology from the police schools. The relations between professional distress and police brutality were studied and suggestions for training reform were discussed. • 1997. A support group was set up in an effort to address the aggressive tendencies of new police officers. • An eight-month training course in providing mental health care (debriefing) for police officers was held for psychologists from the Institute of Psychology, Ministry of the Interior (IPMI). • 1997–1998. A multi-institutional team of professionals from the Bulgarian Institute of Human Relations and the Institute of Psychology of the Ministry of the Interior was estab242
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lished to work on the first mental health care program (psychological debriefing) for police officers in Bulgaria. • The concept of professional stress and the method of psychological debriefing was presented to police officers from police stations in Sofia. • The concept of professional stress, its relation to police brutality, and the purpose of psychological debriefing as a strategy for coping with them were presented to official police forums.
7. Project Results The last phase of the project (1997–1999) confirms the success of the human relations paradigm—combining the requirement of stopping police violence with continuing education and care programs provides opportunities for partnership and collaboration with several police institutions, as well as the introduction of the first care program for police officers in Bulgaria. It could be argued that this approach empowers police representatives to introduce changes from the inside, so augmenting reform pressure from the outside (European, governmental and non-governmental). The analysis of the project team showed that such strategies are inconsistent with the police culture in Bulgaria, however, and can be successful only if they take institutional dynamics into account. The following have proved very useful: • Interventions should be targeted at every level of the institutional hierarchy, from the highest ranks down. Otherwise, the latter will not allow outside influences to percolate through to lower level officers, while on the other hand low level officers would not participate wholeheartedly if they were only obeying orders; • Real change can be introduced only through real partnership with representatives of the police institution which is the object of the intervention (partnership with other departments or units in the police system is not enough). The change requires the development of a relationship of trust with every single police officer; • The interventions should be of long duration and a high level of persistence.
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8. Conclusion
The experience of the Bulgarian Institute of Human Relations team shows that dealing with police violence can be successful if the demands to stop it are combined with adequate training and care for police officers. One possible solution for the future is the integration of human rights training with care programs for police officers.
References Council of Europe. 1997. Report to the Bulgarian Government on the Visit to Bulgaria Carried Out by the European Committee for the Prevention of Torture. CPT/Inf (97) 1, Strasbourg, France. Klein, M. 1988. ‘Notes on Some Schizoid Mechanisms’, in Envy and Gratitude. Virago Press, 1988. Lyth, I. M. 1988. ‘A Psychoanalytic Perspective on Social Institutions’, in Melanie Klein Today. Vol. 2 (Routledge). Tomov, T., S. Vassilev, H. Alexandrov, and V. Hristova. 1996. Psychological Abilities and Stress. Are Police Officers in Bulgaria Prepared for the Nature of their Work? (Sofia: Ministry of Defense, Military Publishing House ‘St. George Sofiiski’). Vassilev, S. 1997. ‘Traumatic Stress in Police Officers–Frequency, Consequences, Programs for Education and Psychological Care’. Paper presented at symposium ‘30 Years of Teaching Psychology in the Ministry of the Interior’.
Note 1 This paper is based on my experience as a coordinator of the ‘Development of Educational and Care Programs for Police Officers’ project which started at the beginning of 1995, the aim of which was the reduction of police violence and brutality in Bulgaria.
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The Budapest Recommendations
Taking into consideration the data and conclusions of the research into the policing systems of a number of Central and Eastern European states sharing a common totalitarian past, the Conference convened at Budapest on 18–20 February 1999 adopts the following recommendations. 1. Central and East European states should incorporate all relevant international standards in their legal systems. Special emphasis should be placed on the European Convention on Human Rights, the United Nations Code of Conduct for Law Enforcement Officials (1979), and Resolution 690 (1979) of the Parliamentary Assembly of the Council of Europe: Declaration on the Police. Full account should be taken of the measures and recommendations developed under the Justice and Home Affairs acquis of the European Union. 2. Torture and inhuman or degrading treatment must be banished unconditionally and immediately from police practice. 3. Police officers should refrain from carrying out any order they know, or ought to know, is unlawful (See: Resolution 690 [1979] of the Parliamentary Assembly of the Council of Europe: Declaration on the Police, App. A4). 4. No restrictions shall be placed on the exercise of human rights and civil liberties of police officers other than such as are strictly necessary for the purposes of the service. Police officers should be entitled to the respect of the communities they serve and the remuneration that is adequate to encourage the high level of professional standards expected of them. 5. Prompt and effective measures should be taken to eliminate corruption at all levels of police. 6. Demilitarization of the police should be one of the leading principles during the modernization of security forces. Police services should be civilian agencies with officers enjoying the status of civil servants. This does not exclude application of certain
The Budapest Recommendations
military-type discipline where strictly necessary within some special formations of police. 7. Precise legal regulation of police powers and precise definitions of criminal offenses should be enacted and developed as primary preconditions for the accountability of law enforcement. 8. Responsibility of local governments for maintaining public security should be increased and this should be coupled with providing them with the appropriate powers. 9. Independent mechanisms for investigating police misconduct and full public accountability of police officers should be established. Civilian oversight of police should play a vital role in bridging the gap between the secrecy and professional characteristics of law enforcement on the one hand and the expectations of the legal system and society at large on the other. Civilian bodies should actively participate in defining strategies of local policing. Nongovernmental organizations should be given powers and practical opportunities to fulfill their mission as it relates to monitoring police activities, including visits to police detention facilities. 10. Police should be deprived of their judicial powers wherever these exist. Legal remedies should be provided against all administrative decisions made by the police. Pre-trial detention should not be executed in police premises except for a short time period or in special circumstances prescribed by law. 11. Personal data should be protected, and adequate safeguards—with special regard to the 1981 European Convention on Data Protection and subsequent European regulations and standards—should be implemented to prevent any misuse of such data. 12. The right to inform a lawyer, a doctor of one’s choice, and a close relative or a third party should be guaranteed whenever personal freedom is restricted. Any custodial interrogation by the police should take place with the person being informed of his or her rights in advance and in a way prescribed by law. Every country should develop a system of providing effective legal counseling to detained persons who lack financial means. 13. Those means of covert surveillance which do not require judicial authorization should also be regularly accounted for to a public prosecutor or another body independent of the police. This body should be entitled to order the destruction of data which are not used in a criminal procedure. 14. Police should not be allowed to stop people and check their identity for reasons that are arbitrary. Checks should be justifiable by articulable reasons. 15. Research into the realities and social context of policing should be encouraged and supported by governments. Innovative 248
The Budapest Recommendations
methods of law enforcement (for example, community policing, problem-oriented policing) should be studied and adapted to the particular circumstances of the Central and East European states. 16. Different forms of psychological care provided for police officers by non-governmental and governmental organizations should be encouraged by governments. 17. Efforts should be made to involve members of all social groups and minorities at both management and staff levels of policing. 18. Strong emphasis on human rights, the values of constitutional democracy, and the rule of law should be incorporated into all levels and subjects of police training. Human-rights aspects of police measures should also be stressed in the course of teaching practical policing skills. The recommendations were adopted on 20 February 1999 by the following participants of the ‘Police in Transition’ Project and/or Conference: Budimir Baboviæ, police researcher, Yugoslavia Endre Balogh, Police Academy, Hungary Tímea Batári Orosz, Police Research Institute, Hungary Miklós Benke, lawyer, General Secretary of the Police Research Association, Hungary Pavel Bilek, Deputy Director, Czech Helsinki Committee Ilona Bodonyi, Associate Professor, Department of Social Sciences, Police Academy, Hungary János Bólyai, lawyer, Associate Professor, Legal Department, Police Academy, Hungary Teodor Bulenda, Helsinki Foundation for Human Rights, Poland Mr. Pál Búzás, research fellow, Police Research Institute, Hungary Jana Chrzova, Executive Director, Czech Helsinki Committee Judit Cseres, research fellow, Police Research Institute, Hungary Miklós Erdélyi, attorney at law, Police Cell Monitoring Program, Hungarian Helsinki Committee István Erdõs, Associate Professor, Department of Social Sciences, Police Academy, Hungary Thomas Feltes, University of Applied Police Sciences, Germany Tamás Felvégi, research fellow, Police Research Institute, Hungary Tin Gazivoda, Croatian Helsinki Committee Mark A. Gissiner, President, International Association for Civilian Oversight of Law Enforcement (IACOLE), USA Yonko Grozev, Head of the Legal Department, Bulgarian Helsinki Committee 249
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Anita Hazenberg, Program Manager ‘Police and Human Rights 1997–2000’, Directorate of Human Rights, Council of Europe, Strasbourg, France Zoltán Havasi, Chief of the Nógrád County Police, Hungary László Kardon, research fellow, Police Research Institute, Hungary Géza Katona, Professor, Police Research Institute, Hungary András Kádár, Program Coordinator, Hungarian Helsinki Committee Imre Kertész, Professor, Advisor of the Chief Public Prosecutor’s Office, Hungary Ferenc Kõszeg, President, Hungarian Helsinki Committee Andrea Kozáry, Associate Professor, Department of Social Sciences, Police Academy, Hungary Ferenc Krémer, Associate Professor, Department of Social Sciences, Police Academy, Hungary Andrzej Kremplewski, Institute of Social Prevention and Rehabilitation, Warsaw University; Helsinki Foundation for Human Rights, Poland Laurence Lustgarten, Professor, Faculty of Law, University of Southampton, UK Robert I. Mawby, Department of Social Policy and Social Work, University of Plymouth, UK Robert C. Mawby, Staffordshire University, UK Pawel Moczydlowski, Helsinki Foundation for Human Rights, Poland Zsolt Németh, criminologist, Faculty of Criminal Sciences, Police Academy, Hungary Márta Pardavi, Program Director, Hungarian Helsinki Committee Mária Pásztor, Associate Professor, Department of Social Sciences, Police Academy, Hungary Edit Pink, Constitutional and Legal Policy Institute, Hungary László Rekvényi, President of the Independent Police Union, Hungary Andrzej Rzeplinski, Helsinki Foundation for Human Rights, Poland Irén Sárközi, Program Manager, ‘Community Policing’ Project, National Police Headquarters, Hungary Jerome H. Skolnick, Professor, New York University School of Law, USA János Somogyi, attorney at law, Hungarian Helsinki Committee Manuela Stefanescu, Co-Chair, Romanian Helsinki Committee Piroska Sulya, research fellow, Police Research Institute, Hungary András Szabó, research fellow, Police Research Institute, Hungary 250
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Zuzana Szatmáry, Charta 77, Slovakia István Szikinger, staff attorney, Constitutional and Legal Policy Institute, Hungary Péter Timoránszky, research fellow, Police Research Institute, Hungary Imre Valcsicsák, Associate Professor, Department of Social Sciences, Police Academy, Hungary Svetlozar Vassilev, Bulgarian Institute for Human Relations, Coordinator of Project Development of Educational and CarePrograms for Police Officers, Bulgaria Audrey Vogel, Association for the Prevention of Torture, Geneva, Switzerland Renate Weber, Chair, Romanian Helsinki Committee Alan Wright, Institute of Criminal Justice Studies, University of Portsmouth, UK Anyone wishing to support these recommendations is free to do so by sending a declaration to the Hungarian Helsinki Committee (e-mail:
[email protected]; postal address: H-1085, Budapest, József krt. 34, HUNGARY).
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List of Contributors
Pavel Abraham, police brigadier general, Director of Analysis, Strategy, and Resource Planning at the Romanian Ministry of the Interior Budimir Baboviæ, independent police researcher, Yugoslavia Miklós Benke, attorney at law, Secretary General of the Hungarian Police Research Association Géza Finszter, criminologist, Hungarian National Institute for Criminology Mark A. Gissiner, President of the International Association for Civilian Oversight of Law Enforcement, USA Anita Hazenberg, program manager of the project ‘Police and Human Rights 1997–2000’, Council of Europe, Directorate of Human Rights, Human Rights Awareness Unit, The Netherlands Ferenc Kõszeg, President of the Hungarian Helsinki Committee Andrzej Kremplewski, lecturer at the Department of Criminology and Criminal Justice of Warsaw University and associate of the Helsinki Foundation for Human Rights, Poland Robert I. Mawby, professor of criminology and criminal justice at the Community Research Centre of the University of Plymouth, UK Andrzej Rzeplinski, lecturer in criminal law and co-chair of the Helsinki Foundation for Human Rights, Poland Jerome H. Skolnick, professor of law at the New York University School of Law, USA Manuela Stefanescu, co-chair of the Romanian Helsinki Committee István Szikinger, attorney at law, constitutional lawyer, police researcher, Hungary
Svetlozar Vassilev, project coordinator of the project ‘Development of Educational and Care Programs for Police Officers’ at the Bulgarian Institute of Human Relations (BIHR) Renate Weber, lecturer in international human rights law and co-chair of the Romanian Helsinki Committee Alan Wright, professor at the Institute of Criminal Justice Studies, University of Portsmou
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