International Standards for Police Oversight

Table of Contents

Introduction

The letter accompanying the Military Police Complaints Commission's 2005 Annual Report made reference to “international standards” for independent oversight of law enforcement. One astute recipient of the letter asked for elaboration. In short: “What are the international standards for police oversight?” This article is adapted from our letter responding to this question, which we felt would be of general interest to others involved in police oversight.

Everywhere police discharge special responsibilities for the protection of society which require the exercise of special powers and authority over other citizens. In any place which cares to preserve or to establish the rule of law, it will be recognized that those with special powers - and especially those impinging directly on individual liberty - will require special accountability for the use of those powers. So it should not be surprising that states in various international fora have begun to share their experiences and best practices in the field of democratic policing, including police oversight.

From the outset, we should make it clear that we are not alleging the existence of specific binding international legal obligations for Canada on this issue - although this may come. Certainly, there are international instruments in the field of human rights which do impose obligations on Canada in relation to the exercise of police powers, including the Universal Declaration of Human Rights of 1948 (widely considered to reflect customary international law in a number of areas) and the 1966 International Covenant on Civil and Political Rights. Of necessity, these types of obligations implicitly require that the police be under effective state control. However, beyond that, international human rights law in this area is generally satisfied by the legal (preferably constitutional) recognition of certain rights of persons suspected or accused of crimes, particularly upon arrest or detention, along with access to judicial remedies for breach of these rights.

However, while there may be no hard international legal rules regarding independent police oversight bodies, what might be termed “soft” international standards for police oversight are now emerging. These have largely been derived by analogy with the UN General Assembly's 1993 “Paris Principles”, which specified minimum standards for national human rights oversight bodies. There is an obvious link between the work of human rights bodies and external police oversight bodies. Indeed, in a number of countries, external review of police conduct is handled by the national human rights oversight body.

The principal sources of relevance to Canada for such standards are the Commonwealth and the Council of Europe (where Canada, along with the USA, Russia, Japan and Israel, has observer status).

Apart from the Paris Principles themselves, the UN has yet to elaborate specific standards for independent oversight of police. The UN Code of Conduct for Law Enforcement Officials, adopted by resolution of the General Assembly in 1979, does not address issues of oversight. In May of 1989, the UN Economic and Social Council adopted a set of guidelines (subsequently endorsed by the UN General Assembly in Resolution 44/162 of December 15, 1989) for implementing the Code of Conduct. Canada was then a member of the UN Economic and Social Council and co-sponsored the draft General Assembly Resolution endorsing the Guidelines. While these guidelines (entitled: Guidelines for the Effective Implementation of the Code of Conduct for Law Enforcement Officials) include requirements for the establishment of effective mechanisms of external control and supervision, in addition to systems of internal discipline, with particular provision for the handling of complaints from the public, there is no elaboration on the authorities and resources which the oversight mechanisms performing this function should possess. However, the United Nations Office on Drugs and Crime is expected to issue a report on this issue later this year.

What follows is a discussion of selected specific standards which have been elaborated by international organizations with which Canada is associated.

The Commonwealth

The Commonwealth Human Rights Initiative's 2005 Report, entitled “Police Accountability: Too Important to Neglect, Too Urgent to Delay” is an interesting discussion of standards and best practices for police oversight. It must be noted that while the Commonwealth Human Rights Initiative (CHRI) is accredited to the Commonwealth and submits periodic reports to the Commonwealth heads of government, it is an independent non-governmental organization and thus its views are not necessarily those of the Commonwealth or its member states. Nonetheless, the CHRI does enjoy special status within the Commonwealth as well as with the UN Economic and Social Council as a respected international human rights NGO.

In its 2005 Report (at p. 64) the CHRI maintains that the 1993 “Paris Principles” (formally, “Principles Relating to the Status of National Institutions”) adopted by the UN General Assembly regarding minimum standards for national human rights bodies, “apply equally to any oversight body”, including those for oversight of police. Elements of the Paris Principles which are relevant to the work independent police oversight bodies include the following principals related to “Methods of Operation”:

Within the framework of its operation, the national institution shall: (a) Freely consider any questions falling within its competence, whether they are submitted by the Government or taken up without referral to a higher authority, on the proposal of its members or of any petitioner; (b) Hear any person and obtain any information and any documents necessary for assessing situations falling within its competence;.

In 2001, the Commonwealth Secretariat expanded upon the Paris Principles with a document entitled, “National Human Rights Institutions: Best Practices”. In its above-mentioned 2005 Report on police accountability, the CHRI derives its recommended minimum requirements for police oversight bodies from the Secretariat's “Best Practices” for national human rights bodies as well as the Paris Principles.

The following minimum requirements for a successful police oversight body are identified by the CHRI in its 2005 Report (at p. 64):

  1. Independence: should be independent of the executive and the police and empowered to report directly to Parliament.
  2. Sufficient Powers: should have the authority to independently investigate complaints and issue findings. This requires the concomitant powers to conduct hearings, subpoena documents and compel the presence of witnesses including police. It should also be able to identify organizational problems in the police and suggest systemic reforms.
  3. Adequate resources: should have sufficient funds to investigate at least the more serious complaints referred to it. Skilled human resources to investigate and otherwise deal with complaints should also be available.
  4. Power to follow up on recommendations: should be empowered to report its findings and recommendations to the public, and to follow up on actions taken by the police chief in response to its recommendations. It should also be able to draw Parliament's attention to instances where police take no action.

Both the CHRI's police accountability report and the Commonwealth Secretariat's Best Practices for national human rights institutions place considerable emphasis on the need for such oversight bodies to have a firm constitutional or at least statutory underpinning for its activities, which “clearly lay out jurisdiction, purpose and parameters.” in order to “protect the body from political whim”. This means that, according to the CHRI, the existence, mandate and powers of independent police oversight bodies should, at a minimum, be fully set out in statute law, and should not be dependent upon regulations or other delegated legislation that can be amended unilaterally by the executive branch.

In terms of the necessary powers for a police oversight body, the CHRI report notes (at p. 65) that

Strong investigative powers are a key factor for the success of oversight agencies. The most effective oversight bodies require not only powers to investigate independently but also to call for evidence and compel police co-operation. They must also be able to make recommendations about individual cases as much as systemic improvements that will be acknowledged and acted upon.

The CHRI report further emphasizes (p. 67) the importance of the oversight body's ability to review systemic matters:

Best practice indicates that apart from investigating individual complaints, oversight bodies also need to be able to review patterns of police behaviour and the functioning of internal discipline and complaints processing systems. Without these powers to monitor and review trends, they may end up receiving repeated individual complaints about similar forms of police misconduct, without being able to identify and address their root causes.

The foregoing points clearly speak, not only to the need for independent police oversight bodies to have sufficient powers to investigate complaints and, in so doing, to have access to all relevant information in the possession of police, but also for such bodies to have the authority to effectively monitor the internal police response to complaints and to investigate related systemic issues which may go beyond the specific concerns raised by complainants.

Council of Europe

The European Code of Police Ethics (ECPE), adopted by the Committee of Ministers of the Council of Europe in September 2001, also contains provisions relevant to effective independent oversight of police. However, these standards are more general in nature than those outlined by the CHRI.

Article 59 of the ECPE states: “The police shall be accountable to the state, the citizens and their representatives. They shall be subject to efficient external control.” The official Commentary to this article specifies that there should be effective accountability to an external public body in addition to a police force's necessary accountability to the state as such. The Commentary further indicates that “openness and transparency of the police are . basic requirements for accountability/control to be effective.

Article 61 of the ECPE provides that: “Public authorities shall ensure effective and impartial procedures for complaints against the police.

Finally, article 62 of the Code states: “Accountability mechanisms, based on communication and mutual understanding between the public and the police, shall be promoted.” The Commentary elaborates that “mechanisms which foster the settlement of disputes between the public and the police are to be recommended”, but adds that “such mechanisms should preferably be independent of the police.” This article, and the supporting commentary, suggest the need for maximum transparency and openness by police in their responses to complaints, particularly vis-à-vis complainants. The article also suggests that, while informal resolution of police complaints is to be encouraged, it should not be left entirely to the police themselves. While the article is not explicit on this point, it would seem only logical for the relevant independent oversight body to supply the needed element of independence to the informal complaint-resolution process.

Conclusion

Clearly, the area of international standards for independent oversight of police is a relatively new and evolving one. While not binding on Canadian governments, the standards discussed above are worth keeping in mind when police oversight legislation is being designed, redesigned or interpreted. All those involved in independent police oversight will all want to closely follow future developments in this area, both through CACOLE and the new International Oversight Initiative, whose inauguration is timely indeed.

Prepared and submitted by the Military Police Complaints Commission August 23, 2006

SYNOPSIS

A. Commonwealth Human Rights Initiative (2005 Report)

Commonwealth Human Rights Initiative (2005 Report)

In its report entitled, Police Accountability: Too Important to Neglect, Too Urgent to Delay, CHRI identified the following standards for external Police Oversight Bodies (POBs).

  1. Independence: POBs should be independent of the executive and the police and empowered to report directly to Parliament. Their existence, jurisdiction and authorities should, at a minimum, be set out in statute law.
  2. Sufficient powers: POBs should have the authority to independently investigate complaints and issue findings. In particular, to be effective, POBs require:

    • the power to conduct hearings;
    • the power to subpoena documents and compel the cooperation of witnesses including the police;
    • the authority to address organizational and systemic issues as well as individual incidents; and
    • the power to monitor the internal handling of complaints by police
  3. Adequate resources: POBs should have sufficient funds to investigate at least the more serious complaints referred to it. Skilled human resources to investigate and otherwise deal with complaints should also be available.
  4. Power to follow up: POBs should be empowered to report its findings and recommendations to the public, and to follow up on actions taken by police in response to its recommendations. They should also be able to draw Parliament's attention to instances of police inaction.

B. Council of Europe

(2001 European Code of Police Ethics)

Articles 59 to 62 of the Code require:

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