Fundamental rights-based policing

FRA Director, Michael O'Flaherty delivers keynote speech in Paris on 17 October on fundamental rights-based policing during the opening of the 5th IPCAN seminar, ‘Relations of the police and population: challenges and practices’.

Monsieur le Defenseur des Droits,

Mesdames et Messieurs,

Chers collègues,

Thank you for inviting me to address the opening of this seminar from the particular point of view of the role of the police in upholding fundamental rights.

Please allow me to preface my remarks by acknowledging the dreadful attack on French police that occurred two weeks ago – when four officers were killed by a colleague. I extend my deepest condolences and my sincere respect. 

During my work as the Chief Commissioner of the Human Rights Commission of Northern Ireland, I saw first-hand how a fundamental rights-based approach can change the culture, practices and perceptions of policing even after decades of confrontation and distrust. 

How it can enhance the protection of rights, contribute to more effective crime fighting and help deliver justice to victims.

I saw that following a fundamental rights-based approach has the potential to transform the lives of people and their communities, as well as decrease social tensions.

Of course, I also saw in Northern Ireland how challenging it is to deliver rights-based policing. Often it was not easy and sometimes mistakes were made.

However, I take this opportunity today to acknowledge as a good practice the corporate culture of human rights of the one police service I know very well, the police service of Northern Ireland.

A key aspect of this approach in Northern Ireland and elsewhere has to be a commitment to equality. The police has to serve equally all parts of the population in its diversity, providing equal protection and respect for the rights of everyone. Because if we cannot deliver fundamental rights for everyone, the whole system is set up to fail.

So my preoccupation this afternoon is how to ensure a fundamental rights-based approach to policing is applied across EU Member and other States. 

…HUMAN RIGHTS BASED POLICING…

So what then the human rights-based policing looks like?

We often hear that you have to choose between respecting fundamental rights and having strong security. But I disagree. This is not a zero-sum-game. Respect for fundamental rights is not an obstacle to security; it is rather a route towards stronger and better security.

If I may take an example very close to today’s topic: the oversight of security and intelligence services.

Intelligence services play a vital role in protecting us against many challenging threats. But intelligence work, and particularly large-scale surveillance, can also interfere with fundamental rights, especially privacy and data protection.

The research done by my agency underscores that effective oversight and remedies can help minimise this risk and prevent of interference with fundamental rights.

In this respect, it is important to highlight that any limitations to these rights should always comply with the principles of legality, necessity and proportionality. In addition, the principle of non-discrimination is also crucial. Be it during police stops, when dealing with victims of crimes or when managing demonstrations.

Respecting these general principles doesn’t pose a risk to our security. On the contrary. It actually enhances it.

Simply put – fundamental rights and effective policing are closely interlinked.

The police play a critical role in effectively protecting fundamental rights and fundamental rights play a critical role in ensuring effective policing.

This is a powerful relationship, one that is mutually reinforcing and one that is very much built on trust.

…TRUST…

Friends, there is a clear link between trust in public authorities and the level of enjoyment of fundamental rights.

If we want to have good relations between the police and the population, we need to build trust.

It is only through trust that victims become willing to report, witnesses become willing to testify, and communities become willing to give early-warning signals. It is this trust that allows police forces to pre-empt, prevent and stop criminal activity.

And here I would like to touch upon one of the popular myths, that newcomers don’t trust state authorities. This is not necessarily true.

Our research my agency conducted shows that ethnic minorities tend to trust police more than the general population. For example, Muslims tend to trust public authorities, including police, much more than does the general population.

But among those who experience discrimination, the trust quickly falls.

If the trust in police is broken, it can lead to underreporting, safe havens for criminals and impunity. This has very negative consequences on individual’s rights and ultimately on the whole society.

…PROBLEMS…

As I have said, policing is not easy and modern day police work presents great challenges.

It is not an easy job to do.

That said, there are some flashpoints that require attention.

Even if only a few police officers did not follow the law or disregard the protection of fundamental rights, this would have profoundly negative repercussions on the perception of the entire police force and on the people they are supposed to protect.

During this workshop, we will have the opportunity to talk about a number of these flashpoints – we will share information on unlawful profiling, management of demonstrations and protection of victims. We will be able to learn from the experience of our colleagues and will see what has worked well and what has not worked locally.

Before we do that, I would like to focus on two of the issues on today’s agenda – unlawful profiling and the lack of protection of victims.

…UNLAWFULL PROFILING…

Let me talk about unlawful profiling first.

Across the EU, we see worrying trends. The agency’s survey on people from ethnic minorities and migrant communities tells us that they are subject to a disproportionate number of police stops.

The figures vary across EU countries, but for example, in our “Being Black in the EU” report, we found that 41% of black people who were stopped by the police felt they were stopped simply because of their skin colour.

This is a worrying figure and I would argue that it is not in the interest of law enforcement authorities to use such profiling practices.

There are serious doubts that broad profiling helps detect crime and increases the success rate of police investigations. The agency’s research actually shows that discriminatory profiling is inefficient, not only because the success rate is low, but also because other crimes might go unnoticed due to the wrong focus.

Some EU countries already try to actively tackle this problem, as they realise it just results in waste of police resources.

What is more, we can clearly see that unlawful profiling has a negative impact on people who are regularly targeted by these practices. It can traumatise people and stigmatise whole groups, which in turn leads to them not reporting to the police when they become victims of crime. This can create a hostile environment, full of mistrust and fear. Hostility can lead to aggression, aggression can lead to violence. It is a vicious circle we need to break.

Of course, at the Fundamental Rights Agency we do believe that when used lawfully, profiling is a legitimate investigation technique but to be lawful, it has to be based on objective and reasonable justifications and comply with fundamental rights, such as the right to non-discrimination and to protection of personal data.

That’s why we developed a guide on how to avoid unlawful profiling. It can help police officers and border guards use profiling in a lawful way, a way that can help them prevent and investigate crimes.

It can also help them navigate the pitfalls of algorithmic profiling, ensuring they comply with the principle of non-discrimination and data protection when using new technologies.

We are now launching the guide in French and we will be sharing it with our French speaking colleagues. I encourage them to use the guide in their daily work – as I am strongly convinced that this will bring benefits to everybody.

And for those who are still experiencing unlawful profiling, it is important to know that they can seek redress. That independent complaint organisations exist and they can help them get their fundamental rights respected.

…LACK OF PROTECTION OF VICTIMS…

Turning to the protection of victims, I would like to focus on one issue we commonly see – and that is underreporting.

This has a lot to do with the issue of trust I mentioned earlier. Many victims do not trust the police when it comes to reporting crimes.

Our data show that only 7% of people who experienced unlawful profiling actually reported it.

Only between 4% and 19% of victims of hatred reported incidents they experienced.

And just about every third woman who was a victim of physical or sexual violence contacted the police or a victim support organisation.

The main reason? Victims often think that nothing would change if they did report. This is clearly worrying.

As a result, perpetrators can carry out their activities with relative impunity, with these crimes remaining invisible and unprosecuted.

It is our duty to safeguard victim’s rights and to protect them from further victimisation.

That’s why we have called on EU countries to do more to protect victims and ensure they are treated respectfully. One way to do that, is to properly implement the EU’s Victims Directive, to ensure the rights of victims take centre stage.

…WHAT IS BEING DONE…

Friends,

As I bring my remarks to a close, allow me a word on the good practices and resources that we all need to draw on.

The first good practice is you - the Independent Police Complaints' Authority Network (IPCAN). You have a tremendous expertise stemming from your work at local level. This network, by exchanging experiences, by shedding light on the initiatives that have made a difference, will pave the way for more reporting, enhancing trust and, ultimately, a better security for all.

Coming back to the issue of trust, your network is such an important one, because it is composed of independent bodies. We absolutely need a well-functioning independent oversight of the security forces to increase trust in the whole system.

In this sense, the IPCAN network plays an important role in the fundamental rights-based approach to policing. By holding the police accountable, it can improve the effectiveness of policing and ensure that people’s rights are respected.

But no organisation can do its job properly, if it isn’t properly equipped and doesn’t have the resources to do its work.

There is a widespread issue of resources for national human rights institutions and equality bodies, as well as organisations handling police complaints. I have raised this issue before and I will raise it again. Many of these organisations are under-resourced and understaffed, which doesn’t allow them to deliver on their mandates. The overall situation has a negative impact on the protection of fundamental rights across Europe.

A matter of concern also is the sheer volume of complaints local and national complaints bodies receive, but also the ones they do not receive yet. There is a clear need to secure proper funding, improve capacity building and step up data collection.

Turning to the issue of resources, allow me to highlight the assistance already available at the EU level.

The Fundamental Rights Agency and other EU agencies, such as the EU agency for law enforcement training (CEPOL), can offer assistance and advice to help the police ensure that they’re mainstreaming fundamental rights into their everyday work.

This conference, and our guide on lawful profiling, contribute to a common objective - to exchange and communicate between experts working at local level, to give visibility to practices that proved useful where they are implemented. You will hear about concrete examples today and you will  discuss how else and where else we can counter injustice created by such practices as unlawful profiling. 

…CONCLUSIONS…

As I wrap up my observations, there are three action points I would like to leave you with. We need to:

  1. Support each other – we have to stand up for our colleagues who are working under pressure, be it because of the amount of work they have or the lack of resources. We need to raise awareness of the importance of rights-based policing to ensure it gets the resources it deserves.
  1. Go deeper – hardwire the necessary elements of the fundamental rights-based approach into our services. Hire human rights advisors. Diversify your staff. Unpack what it really means in practice to follow the principles of legality, necessity and proportionality when limiting fundamental rights.
  1. Learn from each other – I particularly welcome that the IPCAN network is not limited to the European Union only. There’s important experience to be learnt from our colleagues in North America and I am sure they can learn from us too.

Dear friends,

The fundamental rights-based approach to policing is a model that is still underused.

But it is trasformative in its impact. It makes for better policing and better societies.

Frankly, its time has come!

Thank you.