Diminishing access to justice during police stops and custody within the EU during the COVID-19 pandemic
This post focuses on the issue of regular encounters with law enforcement authorities that lead to police stops, arrests and police custody, during which the fundamental human rights of the detainees are increasingly being violated. It highlights that specific categories of population are especially more frequently exposed to coercive treatment. Although there is a global trend of human rights being increasingly disrespected or outright violated by law-enforcement authorities when they impose coercive measures upon individuals they stop, arrest or place in custody, this post focuses on the legal context within which this is happening in the EU.
Immigrants and perceived ethnic minorities are disproportionally greater targets for police stops or custody and infringement of fundamental human rights
A recent study published by the European Union Agency for Fundamental Rights has collected data enabling for the first time to compare, across all EU Member States, experiences of the general population when stopped by the police to experiences of selected immigrant and ethnic minority groups.1 Within 12 months (from 2020 and 2021), 14% of the people in the European Union had been stopped by the police.2 It was established that police stops more frequently affect men, young people, as well as people who self-identify as belonging to an ethnic minority, Muslims, and those who are not heterosexual.3 In the same period, for instance, 49% of immigrants and descendants of immigrants from Sub-Saharan Africa were stopped by the police in Austria and 33% of Roma in both Croatia and Greece.4 Foreigners, individuals who are perceived as foreigners or having an immigrant background, are not only more frequently stopped by the police, but they are also subjected to more stringent actions by law-enforcement authorities when they are stopped. The findings include the following:
People with an ethnic minority or immigrant background experience more frequent stops that involve the police searching them or their vehicle, compared with the general population;
The police searched 34% of people with an ethnic minority or immigrant background who were stopped while walking, compared with 14% of people in the general population from other backgrounds;
People with an ethnic minority or an immigrant background were more often asked for identity papers than were people from the general population who were stopped, either when walking or while in a vehicle.5
Illustrating current trends of police violations: pre-existing issues magnified by the pandemic
There is a growing trend of the police violating basic international human rights when they stop people, when they decide to arrest them, or when they take them into custody. This trend appears in both Global South and Global North countries, even if instances of violations of the right to life and the prohibition of torture tend to be more frequent in numerical terms outside of the Global North. What gives this trend a very problematic dimension is that it translates into overall shrinking of the access to justice worldwide when the police decides to arrest persons or take them into police custody, especially during the pandemic.6
The UN Special Rapporteur on the rights to freedom of peaceful assembly and association observed that governments have restricted fundamental rights relating to access to justice far beyond what is necessary for public health reasons during a pandemic:
“The Special Rapporteur has received information that in many contexts, restrictions allegedly went beyond the legitimate protection of public health, often circumventing access to justice. For example, courts closed or reduced their operations, which negatively affected the provision of timely and fair hearings, sometimes leading to prolonged pretrial detention. In some contexts, the sanitary measures put in place also impeded access to legal assistance, while in others, the measures were de facto breaching the confidentiality of communications between lawyers and clients. In his key principles on State responses to COVID-19, the Special Rapporteur stressed that it was vital that new measures adopted respect human rights; that any limitations on rights be in accordance with the principles of legality, necessity and proportionality; and that independent oversight and review of measures taken during the crisis be guaranteed.”7
Another growing trend in Europe is the frequent occurrence of pre-emptive arrests of people willing to participate in demonstrations. As the UN Special Rapporteur on the rights to freedom of peaceful assembly and association rightly stressed, fundamental issues regarding access to justice for contesting police arrestation and detentions require major structural changes in many countries:
“In many states, major structural changes need to be undertaken in order to bring law and practice into compliance with states’ human rights obligations. In this context, the Special Rapporteur emphasizes that states have the primary responsibility to ensure that the rights to freedom of peaceful assembly and access to justice are respected, protected and fulfilled, and underscores the recommendations containing in his report, which are addressed to States and relevant stakeholders, and which form primary matters in need of states’ attention and action.”8
One may infer that the above trends are pre-existing issues regarding access to justice concerning basic powers that police can exercise against individuals, which are merely augmented and exacerbated by the COVID-19 pandemic. There are, indeed, many practical and legal obstacles that impede the effective exercising of the rights and enabling effective access to justice. One general issue is the de jure or de facto discretion granted to law enforcement authorities to decide who to stop, arrest or take into police custody. There are, however, some basic fundamental rights that are guaranteed in the EU context when police forces or law-enforcement authorities exercise coercive measures against individuals. The protection of the fundamental rights of individuals living in the EU in situations where they face police and law enforcement authorities’ coercive measures are all the more important, given that these rights are in practice increasingly being violated or ignored.
Recent laws and reforms adopted by Member States have even broadened the powers that law enforcement authorities can employ while arresting and detaining individuals. These reforms have consolidated important legal powers for law enforcement authorities, without concomitantly making sure that they don’t adversely reflect on the overall access to justice. While some new adopted laws pertaining to enforcement authorities’ use of powers have been criticised recently for having the effect of reducing access to justice, such as the new security law in Hong Kong9 or in Brazil, this trend is also observable across Europe due to the normalisation of emergency powers exercisable by law-enforcement authorities in Europe and increasing derogations imposed upon fundamental rights protected under international and European human rights legal regimes.
The adoption of state of emergency legislations for health or security reasons has also had a significant limitative effect on the enjoyment of rights before law-enforcement authorities. Arrests, placement in police custody and subsequently in detention, can often materialise for persons deprived of their liberty by law-enforcement authorities, in serious human rights violations. This has also been the case in “non-authoritarian” countries. For instance, the Committee for the Prevention of Torture of the Council of Europe (CPT) has observed, regarding police establishments in France, that “while the majority of those interviewed did not report any physical ill-treatment, several people indicated that they had been deliberately beaten during their arrest or on police premises. Allegations of insults, including of a racist or homophobic nature, were also reported, as well as threats made with a weapon.”10 The CPT has also stressed in the French case the need “to improve the quality of notification of rights and to allow effective access to a lawyer in all circumstances” and it has also more generally declared to be “extremely concerned about the material conditions of detention in some of the police stations” that this European committee has visited.11
These trends are extremely worrisome because of the fact that access to justice is increasingly being effectively disrespected, which has a direct bearing on the enjoyment of other fundamental human rights. As the UN Special Rapporteur for the rights to freedom of assembly and association has observed, access to justice constitutes in fact a set of different rights which lies at the very core of the rule of law:
“When access to justice is not guaranteed or obstructed, individuals will not only refrain from seeking remedy through formal or information institutions of justice, but will often also refrain from exercising their rights to freedom of peaceful assembly and of association in the first place.”12
One serious issue regarding the protection of fundamental freedoms in face of the broad prerogatives of police forces worldwide and in Europe too, concerns violations of the right to access to justice for participation in assemblies and other gatherings, and various existing ordeals preventing those affected individuals to contest coercive measures such as arrestation and detention. This observation is equally valid in other situations, where persons who are most exposed to illegal use of coercive measures by law-enforcement authorities are suffering from various ills, ranging from serious chilling effects in their everyday life to mistreatment or even torture. It is therefore necessary to briefly expose some of the most relevant fundamental rights that are protected under international and European legal regimes when individuals face police and law-enforcement coercive powers.
International human rights law standards applicable in the “criminal” context
Arrestation and placement in police custody trigger several core international human rights provisions. This includes Art. 9 of the International Covenant on Civil and Political Rights (ICCPR) that sets forth the following:
“1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”
Furthermore, ICCPR Art. 14(1) recognizes the general right to a fair trial, while ICCPR Art. 14(3) specifies the minimum procedural rights guaranteed for anyone charged with a criminal offence, including: the right to information, the right to legal assistance, the right to legal aid and the right to interpretation.13 Similarly, the Universal Declaration on Human Rights (UDHR), Art. 9, ensures that: “No one shall be subjected to arbitrary arrest, detention or exile.”
When international human rights obligations are opposable to EU Member States’ policies, the European legal landscape is further complicated by the sophisticated legal structure existing within the EU. Most of the competencies to regulate the use of coercive measures by law-enforcement authorities, as well as for protecting of the rights of suspected or accused persons, are under EU law exercised by EU Member States, directly via their internal legal orders. In the European legal architecture, both EU law and the European Convention on Human Rights (ECHR) play nonetheless a crucial role for the exercising of fundamental rights by individuals exposed to coercive measures imposed by law-enforcement authorities. We will focus here on the protection of fundamental rights due to individuals in the criminal context, given that most of coercive measures imposed by police forces in practice relate to alleged criminal activities.
Individuals living in the EU may rely for the protection of their fundamental rights on two distinct, but interrelated and complementary, sources of law. They can ground their demands on EU law, especially the EU Charter of Fundamental Rights (the Charter) for every action that fall under the scope of application of EU law, or the ECHR. Under the ECHR, minimal criminal procedural rights are laid down in Art. 6 of the Convention. Article 6 (1) of the ECHR provides for the right to a fair trial, guaranteeing equality of arms and the right to adversarial proceedings, as well as the right to a prompt and public hearing by an impartial and independent court. Article 6 (2) and (3) imposes several additional requirements applicable to criminal proceedings. Article 6 (2) introduces the presumption of innocence. Article 6 (3) includes specific aspects of fair trial rights and sets out the five minimum rights that an accused person has in criminal proceedings:
the right to be informed promptly, in a language understandable to the suspect, of the detail of “the nature and cause of the accusation against them”;
to have adequate time and facilities to prepare a defence;
to defend oneself in person or through legal assistance of one’s choosing or, if one cannot afford it, “to be given it free where the interests of justice so require”;
to examine, or have examined, witnesses and to ensure their attendance and examination;
and, to have the free assistance of an interpreter if one cannot understand or speak the language used in court.”14
At the EU level, the Charter is the primary instrument setting out the procedural rights of individuals in criminal proceedings. The Charter applies in respect to the Member States only when they are implementing Union law (Article 51). Article 52 (3) of the Charter ensures consistency between the Charter and the ECHR. It establishes that the rights in the Charter, which correspond to the rights in the ECHR, have the same meaning and scope as those in the latter, adding that EU law can extend the rights and provide a higher level of protection. Articles 47 and 48 spell out the right to an effective remedy and the right to a fair trial, which correspond to Articles 6 and 13 of the ECHR.15
Regarding the EU Charter of Fundamental Rights’ general scope of application, there is a strong limit in the context of fundamental rights’ violations by law-enforcement authorities since most of those competencies pertain to the internal legal orders of EU Member States, and not EU law per se:
“Under Article 51, the EU Charter of Fundamental Rights applies to EU institutions and bodies without restriction, and to Member States “when they are implementing Union law”. The Explanations relating to the EU Charter of Fundamental Rights state that its obligations apply only when Member States are acting “within the scope of EU law”. The CJEU has confirmed that “implementing” and “in the scope of” carry the same meaning.) This covers situations where Member States are, for instance, implementing EU directives and regulations.”16
There are however still some fundamental rights the exercising of which can be claimed on the basis of EU law in specific situations. For the rest, individuals living in the EU can refer to the ECHR, given that all EU member States are also High Contracting Parties to the system of the ECHR, and because EU law while being independent from the ECHR, does refer to protective rights and principles that are organised under the ECHR:
“all 28 EU Member States are also States Parties to the ECHR. This means that, even if the EU Charter of Fundamental Rights does not apply, the ECHR may. Additionally, ongoing negotiations about the European Union’s planned accession to the ECHR could affect the access to justice landscape.”17
The EU Charter of Fundamental Rights confer some fundamental rights that are directly applicable to EU citizens and residents, even if most of its provisions are in general applicable whenever EU member States are applying EU law. For instance, Art. 47 of the Charter protects the right to an effective remedy and to a fair trial, but only when Union law is violated. This limitation is inscribed in Art. 6(1) of the Treaty of the European Union (TEU) which provides that: “The provisions of the Charter shall not extend in any way the competencies of the Union as defined in the treaties.”18 Art. 51(1) of the Charter sets forth that its provisions are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law.”
It is furthermore opposable by EU citizens or legal residents to Union courts and tribunals, not directly to EU member States’ national courts. This does not mean that this right to an effective remedy is useless for persons finding themselves in the Union. The Union has in recent years gained some direct competencies for some law-enforcement authorities, especially for controlling the entrees of aliens on EU territory, for instance via the activities of the European agency Frontex.
Given the above limitations, it is important to stress that formal procedural fundamental rights are in practice unable to help those individuals who are facing coercive measures by police forces or law-enforcement authorities in the phase before they have officially been charged of a criminal act. This is why it is imperative to put the emphasis on the crucial role of a broader notion of access to justice in that context, as international and European human rights law protects individuals in theory against irregular use of coercive measures by police forces and law-enforcement authorities.
In this regard, Art. 43 of the EU Charter of Fundamental Rights provides for instance that: “Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to refer to the European Ombudsman cases of maladministration in the activities of the institutions, bodies, offices or agencies of the Union, with the exception of the Court of Justice of the European Union acting in its judicial role.”19 This includes situations wherein individuals are subjected to unlawful police stops, arrest, placement in police custody or in detention, or whenever EU member States’ law-enforcement authorities are disrespecting applicable fundamental rights. In addition, there is a right to petition for any person legally living in the Union to the European Parliament according to Art. 44 EU Charter of Fundamental Rights, which can serve the interests of bringing to public attention a mistreatment suffered in the hands of European law-enforcement authorities.20
One central core fundamental right protected both under international and European human rights law, which is violated by the irregular use of coercion by law enforcement authorities, is the right to access to justice. Access to justice obliges States to guarantee each individual’s right to go to court to obtain a remedy if it is found that the individual’s rights have been violated.21 It is thus also an enabling right that helps individuals enforce other rights.22 Technically, access to justice encompasses several core human rights protected at the international and European levels, including the right to a fair trial under ECHR Art. 6 and EU Charter on Fundamental Rights Art. 47, and the right to an effective remedy under ECHR Art. 13 and EU Charter on Fundamental Rights Art. 47.23 At the international level, access to justice is protected via Arts. 2(3) and 14 of the ICCPR as well as Arts. 8 and 10 of the UDHR.24
Similarly, the Special Rapporteur on the rights to freedom of peaceful assembly and association has stressed the importance of access to justice for individuals because it acts as a cluster protecting core fundamental rights in that context:
“Access to justice is recognized as a basic principle of the rule of law and in its absence, people are unable to have their voices heard, exercise their rights, challenge discrimination or hold decision makers accountable. It guarantees that people can go before the courts to demand that their rights be protected, without discrimination. It allows individuals to protect themselves from violations of their rights, offering a remedy to the consequences of tort and holding authorities accountable. Access to justice refers to the individual empowerment and enforcement component of the rule of law, and it largely depends upon an individual’s knowledge of their rights and access to tools to enforce those rights effectively and affordably. In a way, the right to access to justice, through the principle of accountability, is aimed at balancing the relationship between individuals as right holders and duty bearers, including those duty bearers who maintain State-like powers, thereby affecting the ability of rights holders to enjoy their rights.”25
All Member States of the European Union are also High Contracting Parties to the ECHR. This means that independently of Union law, individuals who are suffering violations of their rights while living in the EU, can also seek redress on the basis of the law of the ECHR.
More generally, individuals whose fundamental rights are violated by law-enforcement authorities can rely on general principles of EU law. The European Court of Justice (ECJ) in its Opinion 2/13 from 18 December 2014 has established that according to its well-established case law, “fundamental rights form an integral part of the general principles of EU law. For that purpose, the ECJ draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories”.26 Art. 6(3) of the TEU sets forth that: “3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.”
Art. 52(3) of EU Charter on Fundamental Rights set forth that “In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Fundamental of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.” Art. 53(4) indicates that when general principles of EU law result from EU member States’ national traditions provided that: “In so far as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions.”
This means in plain language, that under the EU law, EU fundamental rights can be also complemented by international human rights standards and rules that are provided for by non-EU international treaties, especially when they reflect fundamental rights protected under the law of every or most EU member States. Fundamental rights against the unlawful deprivation of liberty, forms of torture and mistreatment in the hands of law-enforcement authorities integrate those general principles of EU law.
Factors limiting access to justice before law-enforcement authorities
One major factor limiting access to justice is that even when applicable national laws provide guarantees for individuals arrested or taken into police custody by law-enforcement authorities, they are oftentimes not effective in providing the level of protection they are due under IHRL. One important limit is often the vagueness and lack of precision in the wording of national procedures applicable to arrestation and police custody.
“The Special Rapporteur notes that many States still have legislation that is too intrusive, that imposes undue restrictions and that, in some instances, through lack of precision and vague wording, enables violations and abuses. For instance, both the lack of clarity regarding the meaning of “national security” in the legislation of numerous States and the impact of broad counter-terrorism legislation have been used by authorities to impose disproportionate restrictions on peaceful assemblies and on the establishment of associations. National legislation criminalizing acts of terrorism must be accessible, formulated with precision, non-discriminatory and non-retroactive.”27
Another important factor which causes access to justice to be dramatically restricted is the prerogative of Member States ‘ national legislations to impose exceptional limitations to the rights of persons arrested or taken into police custody in the name of the protection of national security. If Union law provides protective measures for EU citizens and residents’ fundamental rights through the EU Charter on fundamental rights, EU Member States’ authorities are only bound to comply with the Charter of fundamental rights when implementing EU law, letting the general protection of fundamental rights as being ensured by each Member State’s internal legal order.28 Most prominently, the EU Charter on fundamental rights is relevant for the protection of individuals’ fundamental rights but only insofar as one can identify a concrete EU legal basis conferring to the Union some competencies on matters that have a bearing on the situations wherein individuals face coercive police or law-enforcement powers.
Finally, one of the most serious factors, if not the most serious issue, experienced by individuals who want to claim that their fundamental rights have been violated by police forces is the issue of lack of evidence. This factor, as well as all the other restrictive factors mentioned above, contribute to the obstruction of access to justice for individuals and often consequently result in the individuals refraining from taking action which would ensure the exercising of their rights:
“When access to justice is not guaranteed or is obstructed, individuals will not only refrain from seeking remedy through formal or informal institutions of justice, but will often also refrain from exercising their rights to freedom of peaceful assembly and of association in the first place.”29
In conclusion, the current trend of police and law-enforcement authorities’ powers being gradually expanded on one hand, without the corresponding provisions to further protect peoples’ fundamental human rights on the other, is more than evident both globally and within the EU. The prolonged COVID-19 pandemic has greatly augmented the severity of this growing discrepancy and the statistics on discrimination and violation of fundamental rights of individuals during police stops and while in police custody within the EU are alarming.
In this post, we laid out the legal context in which this is happening. In doing so, Access to Justice intends not only to draw attention to this serious issue, but also to openly call on all relevant institutions and bodies, as well as all other concerned governmental or nongovernmental human rights experts and activists, to engage their respective capacities and come up with concrete proposals and specific solutions to this problem.