Police and human rights - in general and in Switzerland
On behalf of the state, the police have to guarantee the compliance to the law assuring that within the framework of the existing legal system everybody can use the (basic) rights assured to them by the constitution. In addition, the police are allowed to carry through checks and may if necessary use force, if somebody does not conform to the law. They may also compulsory measures, should somebody not abide by the law. The police have the monopoly on legitimate use of force. Due to its mission the police regularly and in manifold ways interfere with human rights. A simple identity check can already be an invasion of personal privacy of the person controlled and can lead to defence responses for different reasons. Situations such as these belong to daily routine in a governmental institution which is a t the same time service provider and supervisory body.
Strict principles for police work
For the police a main challenge lies in assessing unsafe situations correctly and in finding a relatively rapid and fitting response. The monopoly on the legitimate use of force is a delicate field of work with a latent danger of abusing power and violating human rights, and police work therefor is directly linked to the general basics of constitutional action. Firstly, police work must be based on a legal basis, e.g. an operation may only be carried out if the police have a legally clearly defined power to act. The legal basis for this can be found in the code of criminal procedure and in the various cantonal police laws. An example of such legally defined action is the above-mentioned check of a person’s identity. Should the police act, in an exceptional case, without legal basis it can do so thanks to the general police clause (Art. 36 Abs. 1 BV - in German). But such an operation is subject to severe preconditions (infringement of a fundamental right, e.g. danger to life and limb as well as exceptional urgency).
Secondly, police work must be based on the principle of proportionality, meaning that the measures taken by the police to solve a problem must be adequate, necessary and fitting with regard to the aim. Especially compulsory measures have to be justified and appropriate in the concrete case, should not be excessive and the police should make sure not to put too great a strain on the person concerned.
Violations of human rights and legal provisions
As in other countries, in Switzerland violations of human rights occur during regular police operations, for example the sending away of groups of people for no reason during major events. Human rights activists and victims accuse police forces in individual cases of disproportionate application of force, abuse, unnecessary or undue use of means of coercion (such as preventive detention, house searches with dogs), racist slander, racial profiling as well as other interference with personal rights. There have even been cases in which victims suffered from mortal or severe injuries.
Because of the cantons’ authority over police forces, there is only a very limited scope for action on the federal level. Within the federal competence are coercive measures based on the aliens’ law, in force since 1 December 2009. During the preparation of the law, intense and important discussions took place on a political level about the application of certain coercive measures (such as compulsory medication, tasers, whole-body immobilisation, muzzle, integral helmets, gagging techniques), taking into account, at least partly, human rights considerations. The growing tendency to privatise public sector tasks is further topic of political discussion. From a human rights point of view here, too, a strict regulation would be necessary.
Tendency towards impunity in Switzerland
Expert lawyers report that only very few penal proceedings are opened following criminal complaints against police forces. During the preliminary proceedings the accusations are investigated by the public prosecutor's office and/or the police. This means that criminal complaints against members of the police force are normally treated by people who in their daily business are dependent on a good cooperation with the accused or his superiors. As a result, already preliminary investigations do not lead anywhere, because colleagues protect each other and make arrangements or because the public prosecutor’s office does not investigate consequently enough. In addition, the police force frequently responses to criminal complaints against its members with their own complaints for reasons of «violence and menace against officers» or something of the like.
Under these conditions, investigations can hardly be effective. From a human rights point of view, independent criminal and administrative investigation is therefore of key importance. A further matter to work on is the construction of a comprehensive network of complementary complaints mechanisms, such as ombudspersons offices which up to now exist but in some few cantons and towns. They can start mediation processes or submit recommendations for the attention of the authorities and in this way cause disciplinary measures, such as for example the transfer of personnel. But most cantons concerned do not show any understanding for this postulation.
Although differences in cantonal practice are great, independent investigative mechanisms in the case of penal proceedings are an exception. In the end, an investigation can only be truly independent if the whole proceedings following a criminal complaint are passed to another canton’s police authorities.
The same applies for criminally non relevant but still illegal actions such as excessive use of force during removals. Only very few people which were infringed in their rights by police action stand a chance of fighting authorities.
From the beginning, the authorities’ dealings with such complaints against members of the police forces was a topic for various international bodies supervising human rights protection. The international experts addressed numerous recommendations to Switzerland with respect to the improvement of authority practice in this field.
The UN and COE committees also established that complaints against police officials are very rare and that it is even rarer that penal proceedings are indeed opened, although human rights organisations document police violence and write reports on various incidents and practices. Since 2001 diverse bodies have repeatedly called on Switzerland to introduce independent complaint mechanisms in order to secure an independent and fair trial to suspected victims of police violence.
No statistical survey
Police actions which contradict human rights standards over the past few years have, according to NGOs, mainly affected globalisation opponents, soccer fans, minors, coloured persons and asylum seekers. Since there is no statistical evidence nor exists there any scientific investigation, which makes a qualitative and quantitative assessment of circumstances rather difficult, we are depend on the little evidence that becomes public by chance.
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