This module is a resource for lecturers
Topic two - Key mechanisms and actors in police accountability and oversight
This section explains the ways in which internal and external control and oversight mechanisms contribute to police accountability taking into consideration UNODC's conceptual framework of 'accountability before, during and after the act'. Throughout the section, the terms 'ex-ante, ongoing, ex-post oversight' will also be used to reflect these three stages of accountability.
Internal control within the police
The first degree of control in any police accountability system is the internal control mechanisms within the police service. Effective internal control mechanisms have an essential role to play within a police accountability system, both from a preventive and reactive perspective. Such mechanisms have three main components:
- Professional and integrity standards
- Ongoing supervision and monitoring
- Internal reporting and disciplinary mechanisms (DCAF, 2015a).
Accountability before the act: Professional and integrity standards
As mentioned in the previous sections, all police actions should be based on law. However, legal stipulations in the laws may be insufficient when it comes to day-to-day exercise of policing powers. It is imperative, therefore, that police services develop comprehensive professional standards (codes of conduct), providing clear guidance on the exercise of policing duties and powers in practice. By way of example, having clear professional standards, guidelines and instructions on arrest and detention procedures would be a good first step for preventing police officers from breaching the law during arrests.
Nonetheless, professional standards are not enough. As stated earlier, in the framework of laws, police officers often have a wide degree of discretion in exercising their powers. There may be circumstances where police officers face ethical dilemmas such as the tendency for bending certain laws to achieve what they perceive as greater law enforcement objectives, or the tendency for applying deceptive interrogation tactics to extract crucial information or confession from suspects (ICRC, 2013, p. 140). Precisely for such situations, police services need to establish a code of ethics which sets overarching integrity standards that are built upon the values of impartiality, fairness, equality, justice, honesty as well as principles for respecting, human rights and dignity (Costa and Thorens, 2015). Depending on the administrative system of the country, such professional and integrity standards may be developed by, or in consultation with, the Ministry that the police are reporting to. Evidence also shows that if integrity standards are developed in a participatory approach, with the police and other actors, there is a higher chance that they will be taken on board and implemented by the police.
If well promoted, a code of ethics setting out integrity standards has the potential to: give guidance for action to police officers facing ethical dilemmas; contribute to a better identification, analysis and resolution of ethical problems; and assist the exercise of leadership and management throughout the organization and enhance public trust in the police (CoE, 2001, Explanatory Memorandum).
There is no prescriptive international standard on what a code of ethics should include. Nevertheless, the European Code of Police Ethics (2010) is widely recognized and promoted as a model code internationally. Consisting of 66 articles, the Code is organized under the following sub-headings:
- objectives of the police
- legal basis of the police under the rule of law
- the police and the criminal justice systems
- organizational structures of the police (recruitment, retention, training, and rights of personnel)
- guidelines for police action (including the overarching human rights and ethical standards such as respecting and protecting fundamental human rights, acting in line with principles of legality, impartiality, non-discrimination, consideration for protecting groups at risk of vulnerability)
- accountability and control of the police
- research and international cooperation
Similar standards are articulated in: the Seoul Declaration (AGN/68/RES/4), adopted by the INTERPOL Group of Experts on Corruption; the Harare Resolution on the Code of Conduct for Law Enforcement Officials (2001), adopted by the Southern African Regional Police Chiefs Cooperation Organisation (SARPCCO); and the United Nations Convention against Corruption (2003) adopted by General Assembly resolution 58/4 (see article 8).
Developing professional and integrity standards are not sufficient by themselves for ensuring compliance. Police services should widely promote the code of ethics and integrity standards across the organization; and should incorporate the implementation of integrity standards into recruitment, training, and promotion processes. Developing and effectively implementing integrity standards are important preventive tools for internal control and thereby contribute to 'accountability before the act'. ( Module 14 on Professional Ethics of the E4J University Module Series on Integrity and Ethics provides more information on integrity standards and ethics for specific professions.)
Accountability during the act: Ongoing supervision and monitoring of organizational processes and individual behaviour
The second component of internal control aims at achieving 'accountability during the act' through establishing supervision and monitoring mechanisms. The primary objectives of continuous supervision and monitoring is to verify compliance of day-to day policing practices with the law, policies and integrity standards; and detect unlawful and/or unethical behaviour (ICRC, 2013, p. 140).
Achieving these objectives requires that a clear chain of command be established, the purpose of which is twofold. First, such a chain of command would enable police services to trace back the ultimate responsibility for a police act or omission (CoE, 2001, article 17). This is important because, as per international standards, in addition to the police officer who committed an offence, his/her immediate supervisor who instructed such act, or was not able to prevent the commission of the offence should also be held to account ( Basic Principles on the Use of Force and Firearms, 1990, principle 24). Second, a chain of command would clearly establish the respective monitoring roles and responsibilities of all police officers with supervisory ranks in the hierarchy.
Effective supervision and monitoring within police services can be achieved through a range of procedures and mechanisms. Below are selected examples:
- Rigorous record keeping and internal briefing and reporting procedures, which would help supervisors monitor the activities of their subordinates, analyse trends, identify problematic practices from incident reports and assess whether there are systemic factors behind those practices (OSCE, 2009, para. 113).
- Internal audit mechanisms for a regular review of recruitment, training, promotion, as well as other resource management processes to assess whether they effectively promote professional and integrity standards set out by the police.
- Procedures for regular and unannounced inspections and spot checks by the supervisors of places carrying high risk of human rights violations such as custody facilities and interrogation rooms.
- Procedures for tracking the use of firearms and tracing ammunition: The use of force and firearms is one of the policing functions with the highest risk of human rights violations. Improper procurement, registration, storage, maintenance and tracing of weapons and ammunition would lead to major accountability gaps and render any internal and external investigations ineffective. Police services shall therefore develop detailed procedures for managing firearms and ammunition to create an audit trail. The ' Authorised Professional Practice' developed by the UK College of Policing has a comprehensive set of rules on weapons and equipment tracing is a promising practice in this regard. Tracing is not only necessary for firearms ammunition but is becoming increasingly relevant in the use of less-lethal weapons, particularly the conducted energy devices, also known as Taser. Although Taser is a less-lethal alternative to firearms, inappropriate use can inflict serious damage and may even lead to death. ( Module 4 on the Use of Force and Firearms provides more information on the use of less lethal weapons by law enforcement). Police services increasingly seek to trace the use of Tasers, as a means of ensuring their use is lawful, necessary, and proportionate. For instance, the New South Wales Police Force in Australia uses Tasers with inbuilt tracing mechanisms, including a Taser cam, which is "fitted to the weapon to capture audio and visual information before, during and after Taser use", a data port download facility, which "allows certain information about each Taser use stored on the data chip within the weapon to be downloaded and Anti Felony Identification Device (AFID) tags, which includes the serial number of the Taser cartridge that are released each time the Taser is discharged, so that the Taser cartridge used can be identified. Police station records can then be used to match the cartridge with the Taser and consequently the Taser operator" (NSW Ombudsman, 2012, p. 81).
- Collection and analysis of disaggregated data by age, gender, and where relevant, other protected characteristics (such as race and ethnic/religious identities) in the exercise of policing duties: The collection, and regular review of disaggregated data would inherently serve as an internal accountability mechanism, because such a proactive review would allow for identification of trends and early recognition of potentially problematic practices. For instance, a regular review of disaggregated stop and search data may reveal disproportionate stop and search practices targeting young men from a particular race or religion. While data of this kind would need to be interpreted carefully, disproportion of this kind may 'raise a flag' for senior management to look more closely into stop and search data, to talk to the officers involved regarding the grounds and justifications for the disproportionate policing, and if necessary revise standard operational practices and guidelines, to prevent bias-based profiling.
It is important to note that the role of supervising police officers is not limited to monitoring internal procedures and their subordinates. They should 'lead by example' by displaying the highest integrity standards in their daily professional conduct, to promote a culture of ethical conduct across the organization (CoE, 2001, article 20). Another important way of promoting a culture of integrity across the organization is to highlight the practices of officers who consistently uphold human rights. This could be done through acknowledging exemplary human rights compliant actions of officers in internal newsletters, or even promoting such practice on the social media. Highlighting positive practices would signal that the senior management values the implementation of integrity standards in practice. (For additional information, see the E4J University Module Series on Integrity and Ethics).
In sum, a well-established chain of command with managers having clearly defined supervisory roles, and effective monitoring mechanisms also contributes to police accountability 'during the act'.
Accountability after the act: Complaints handling mechanisms
The third and perhaps the most important component of internal control are mechanisms to handle both internal reports of wrongdoing and public complaints against the police in an impartial, timely and thorough manner. The positive contribution of effective accountability mechanisms to public trust in police is acknowledged in the literature (Goldsmith, 2005).
As per international standards and good practices around the world, the following standards ensure effective internal complaint handling and disciplinary mechanisms:
- Police services should establish safe channels for reporting on wrongdoing by a colleague (UNODC, 2011, p. 90; OSCE, 2009, para. 31). Such channels should be accessible for both witnesses (see section on The role of whistle-blowers in police accountability for a more detailed discussion on whistle-blowing) and police officers who are victims of such wrongdoing (for instance internal sexual harassment cases, discrimination claims, mobbing).
- Police services should also establish effective mechanisms and procedures for receiving, handling and investigating complaints by members of the public against the police officers. To this end:
- There should be a variety of ways for lodging a complaint (in-person at the station, in writing, by phone, online). Police services should also accept anonymous complaints.
- Police services should actively inform the general public, as well as those in contact with the criminal justice system - witnesses, victims, and offenders- about how they can complain (Bryne and Priestley, 2017, p. 11).
- The police officer receiving the complaint should be legally obliged to accept and record that complaint. It should not be left to the discretion of a single officer to reject or discard the complaint (Amnesty International, 2015, p. 37).
- Police services should develop comprehensive rules of procedure for handling complaints, including timelines for completing an investigation, methods and procedures for conducting disciplinary and criminal investigations, sanctions available for various misconduct. This would ensure consistency in investigations and transparency towards both the complainant and the accused police officer (ICRC, 2013, p. 341).
- Investigations of complaints should be conducted by a police unit or officers that are reasonably independent of the police officer involved in the incident which led to the complaint (OSCE, 2009, para. 87).
- Throughout the investigation, police services should respect, protect and fulfil the rights of victims and complainants. These include the right to be informed during and after the investigation, right to provide evidence and call witnesses, right to appeal and pursue civil and criminal proceedings in parallel, as per the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (GA Resolution 40/34) ( Module 11 on Justice for Victims provides more information on the rights of victims).
- Necessary measures shall be put in place to safeguard the rights of the accused police officer, particularly the right to be notified on the investigation, right to legal aid, right to be heard and defence (PACE, 1979, articles 7-9).
- Once the investigation is completed, and the relevant authority within the police has decided on the appropriate result or the sanction; there should be mechanisms both for complainant and the accused officer to appeal that decision (CoE, 2001, article 33).
- Data on complaints should be systematically reviewed and analysed by the police together with external expert groups. This would assist the police to identify the underlying and systemic causes of misconduct, and to learn from mistakes (OSCE, 2009, para. 91). As per United Nations standards, it is good practice "to disclose the number of complaints received, the nature of the complaints and their consequences, including numbers of officers that have been disciplined and criminally prosecuted" (UNODC, 2011, p. 38).
There is no doubt that internal complaint-handling mechanisms have the advantages of better knowledge of police culture and environment, greater resources for investigation (expertise and technical means), and higher likelihood of cooperation of the accused officer with the investigators (UNHRC, 2010, para. 25-26; OSCE, 2009, para. 87). However, if police services can investigate criminal and disciplinary offences by themselves, there is a risk that investigations would not be carried out thoroughly, systemic failures would not be identified, perpetrators would not be punished appropriately, and a culture of impunity would result. Therefore, external control and oversight actors should be actively involved in all stages of accountability before, during, after the act.
In most countries, the executive plays an important role in the police accountability system. Since the police are hierarchically a part of the executive (most often falling under the portfolio of the Ministry of Interior or the Ministry of Justice), the nature of the executive's function is more of 'control' - implying direct capacity to modify police actions - than of 'oversight', as is the case with other external actors in the accountability system. While the extent of the executive's role depends on the administrative and governance structure of a state, the executive contributes to police accountability in various ways, at all three stages.
In most countries, the executive ministry that the police reports to is in charge of setting the overall vision for law enforcement; establishing the overarching policies for recruitment, performance indicators, promotions and training; and developing the disciplinary code (UNODC, 2011, p. 98).
In democratic societies some of these tasks are undertaken in consultation with the police; in highly decentralized countries certain tasks can be completely delegated to the police.
The executive scrutinizes the police on a regular basis through inspectorates. Once again, the hierarchical set-up and the mandate of inspectorates vary across countries. Nevertheless, in most cases, inspectorates are tasked with assessing police compliance with the law, policy and codes of conduct (Born et.al., 2012, p. 196).
In doing so, most inspectorates focus on identifying systemic issues and failures, instead of investigating individual cases of misconduct, the latter of which is often delegated to the police.
Exceptionally, inspectorates can take over investigations relating to the senior management of the police, or complaints with allegations of severe violations, especially if there are no independent investigative mechanisms in that country.
Depending on the outcomes of inspections, the executive may decide on changing or introducing new policies to address systemic issues and enhance police accountability.
Furthermore,in some centralized countries, the executive holds the power to dismiss the chief of police following an investigation into an offence or wrongdoing.
One means by which the executive could meaningfully contribute to police accountability, would be by ensuring that strategic and policy setting documents are in line with international human rights standards and promote integrity across the police service. For instance, incorporating compliance with integrity standards as a key criterion for recruitment and promotion of police officers would help mainstream a culture of ethics across the organization. By contrast, performance criteria that measure operational performance by the number of arrests, for example, may result in high incidence of arbitrary arrests, in violation of international human rights standards.
Country examples of executive control
In Kenya, the Government cancelled the recruitment of 3000 officers and suspended 60 senior officers after an investigation by the Anti-Corruption Commission revealed that up to 80% of the candidates had either paid bribes or used their connections to get jobs (BBC, 2005). In Slovenia, while most disciplinary misconduct complaints are handled by the police, a ministerial panel directly investigates the complaints in which complainants are children or members of national or ethnic communities or minorities or other vulnerable groups (Slovenia Police Tasks and Powers Act, 2013, Section IV).
One key challenge with executive control is that inspectorates and other executive mechanisms are often not perceived by the public as sufficiently independent to ensure police accountability. It is particularly problematic in countries where the inspectorate is directly appointed by, and reporting to, the Minister, in the absence of transparency. In such cases it would be possible for a Minister to influence the inspectorate's work to cover up wrongdoing within the police; or instrumentalize the work of the inspectorate to further the political agenda.
Judicial oversight of the police
The judiciary is an indispensable element of a police accountability system, whereby judges and prosecutors have statutory powers to exercise ex-ante, ongoing and ex-post control and oversight of the police.
Ex-ante control: judicial authorization
Ex-post oversight: Adjudication
The application of certain police powers carries a high risk of violating fundamental human rights. These include searching of private dwellings, or collecting information through covert surveillance of communications, which may be needed for investigating organized crime or terrorism-related offences.
Democratic societies subject the application of those powers to judicial authorization, since the judiciary is often best suited to review the legality, necessity and proportionality of proposed investigative methods.
In this respect, the judiciary plays a direct role in ensuring 'accountability before the act', by authorizing or rejecting the application of special investigative measures, thereby keeping police investigations within the limits of the law and human rights standards.
In some criminal justice systems, public prosecutors have the power to conduct, direct or supervise criminal investigations.
In such cases, the prosecutors have a direct responsibility to scrutinize the lawfulness of police activities in the course of the investigation and monitor the observance of human rights by police officers (CoE, 2000, article 21).
When police actions constitute (or are suspected of constituting) a violation of the criminal code, judicial institutions investigate, prosecute, judge and, if necessary, sentence the police officers involved.
Furthermore, the judiciary plays a key role in providing remedial routes to victims of police misconduct, mostly through civil proceedings (Born et.al, 2012, p. 201).
The fulfilment of the right to a remedy, as stipulated by the ICCPR (GA Resolution 2200A (XXI), article 2(3)a), is central to an effective accountability system.
While the judiciary has a crucial role in police accountability, in practice there are certain limitations and challenges to an effective judicial oversight of the police. Firstly, there is usually a limit to the police powers that are subjected to ex-ante judicial control. Not all police powers can be subjected to prior judicial authorization, and thus countries typically subject only the police powers that are considered to be most intrusive, to ex-ante judicial control such as the surveillance of electronic and telecommunications. The extent of police powers requiring ex-ante judicial control varies across jurisdictions.
There are certain types of policing functions such as undercover policing, which is typically not placed under ex-ante judicial control in many countries. Usually police services determine the rules guiding the conduct of undercover police operatives. The inherently secret nature of undercover work, combined with the lack of ex-ante control on the application of undercover policing methods leaves very little room for effective judicial oversight, or any other external oversight for that matter. In most cases, undercover methods of the law enforcement come into scrutiny ex-post facto; following complaints and lawsuits filed against police officers or services. There are, however, increasing calls by experts and organizations specialized in policing and human rights to subject undercover policing to prior judicial oversight (Liberty UK, 2013; JUSTICE, 2011). Whether undercover policing and other potentially controversial policing methods raises questions on whether the scope of ex-ante judicial control should be extended; and if so whether the judiciary would be able to effectively oversee such policing methods.
Secondly, with respect to ex-ante review of surveillance warrants if the judges who review warrant requests by the police do not have the necessary knowledge and expertise on intrusive investigative measures and their implications for human rights, they may not be able to critically assess the necessity and proportionality of such measures (Wills, 2015, p. 55). Even if they possess such expertise, when the judges are not strictly independent of the executive, they may be hesitant to reject law enforcement's investigation methods, especially for investigating cases related to terrorism or organized crime, or related to politics; showing, instead, a tendency to rubber-stamp warrant requests.
Thirdly, in many criminal justice systems the prosecution and the police have a very close cooperation and working relations. It might be difficult, therefore, for prosecutors to effectively scrutinize police compliance with human rights during an investigation they are supposed to supervise; or investigate the offences of police officers whom they have worked with before (Born et.al, 2012, p. 202).
Countries attempt to mitigate these challenges by: assigning specialized judges for reviewing warrants, and special prosecutors for investigating offences by the police (CoE, 2009, para. 85); or establishing independent investigative mechanisms mandated to investigate allegations of most serious crimes committed by the police.
Parliamentary oversight of the police
Embodying the ultimate democratic legitimacy, parliaments exercise legislative, budgetary and monitoring functions before, during and after police actions.
One of the most fundamental roles of parliaments across the world is to draft, amend and enact laws. Thus, it is in the parliament's purview to establish a comprehensive legal framework on policing that is in line with international laws and human rights standards. Law(s) on policing should provide a clearly defined mandate and powers for the police as well as accountability mechanisms when police infringes the law (DCAF, 2015b). In addition to law-making, parliaments have other functions that contribute to 'accountability before the act': most parliaments are involved in reviewing, amending and adopting the state budget, which includes the budget of police services. A thorough scrutiny of the proposed police budget might reveal unnecessary procurements, or areas with high risk of corruption. Furthermore, in some countries, parliaments oversee or even approve appointments to the most senior law enforcement positions (such as the National Police Chief). Parliaments can use this function to promote the incorporation of ethical and integrity standards to the selection and appointment processes of police chiefs.
Parliaments use a variety of mechanisms and procedures for contributing to 'accountability during the act', most important of which are the permanent parliamentary committees mandated to oversee the police. Such parliamentary committees often have the power to request and review reports by the police, hold parliamentary hearings, summon members of the executive, law enforcement, as well as thematic experts to testify at parliamentary hearings, launch parliamentary investigations and conduct inspections of police facilities (UNODC, 2011, p. 95). These parliamentary instruments are crucial tools to monitor whether police act in the framework of laws, strategies and policies developed and adopted by the legislative and the executive.
In addition to the permanent committees, some parliaments establish ad hoc parliamentary inquiry commissions, often in the wake of a police scandal causing significant reaction from the public. In such cases, ad hoc commissions are set-up to establish the facts of the case, hold senior management of the police to account before the parliament, and make recommendations for improving police governance in the future. It should be noted that such commissions do not have judicial powers and are not intended to replace judicial processes that may be taking place at the same time.
Country examples of parliamentary oversight
The South African National Assemblyhas a permanent committee called the Portfolio Committee on Police, which is exclusively tasked with police oversight. To that end, the committee has been effectively using legislative, budgetary and monitoring powers to oversee the police. As part of its monitoring work, the committee has developed a standardized questionnaire for the police and has been using it in its regular and unannounced visits to police stations for more effective and coordinated oversight (APCOF, 2014). In 2018, the Parliament of Georgiaestablished a temporary fact-finding commission regarding the murder of two teenage boys. The prosecution and the trial of the case sparked massive public outcry when it was revealed that an employee of the Office of the Public Prosecutor, who is a relative of a key witness in the case, attempted to conceal evidence. Acquittal of suspects led to large rallies, the resignation of the chief public prosecutor, and the establishment of the ad hoc parliamentary commission. The Commission has reviewed case material, summoned police officials who carried out the investigation, and issued recommendations for the Ministry of Interior and the Police (Civil.ge, 2018).
Parliamentary oversight has certain shortcomings and challenges with scrutinizing the police. Firstly, parliamentarians cannot fully dedicate their time and attention to issues related to police oversight. Being a member of a parliamentary police oversight committee is one of the multiple duties Members of Parliaments (MPs) have. Secondly, most MPs do not have the substantive expertise that is necessary for effectively overseeing the police. With technology, police investigation methods and new forms of crime getting ever more complicated, it is conceivable that MPs may not be able to ask the right questions to oversee complex police functions and activities. Thirdly, there is always an inherent risk that parliamentarians will use oversight tools, mechanisms, and information obtained through their oversight activities to further their political agenda or inflict maximum damage to their rival politicians. In such cases, appointment of police chiefs, inspections and parliamentary investigations carry the risk of being unduly politicized (Wills, 2010, p. 42-43).
Oversight by independent institutions
The previous subsections referred to the potential challenges encountered when allegations of police misconduct are investigated internally by the police or executive bodies; and overseen by the judiciary and the legislature. It is widely accepted that confidence in police, which is a prerequisite to effective policing, erodes significantly when the public perceives that police abuses are not investigated effectively (CoE, 2001, article 61 commentary; OSCE, 2009, para. 88; UNHRC, 2010; Tait, Frank and Ndung'u, 2011, p. 1).
Therefore, over the last decades, international normative instruments have emphasized the need for an effective and independent investigation of alleged offences committed by the police, in particular the cases of use of force and of extrajudicial, arbitrary and summary executions ( Basic Principles on the Use of Force and Firearms, 1990, article 22; United Nations Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, Economic and Social Council resolution 1989/65, Principles 9-10). The European Court of Human Rights, through a series of landmark rulings, established five key principles necessary for an effective investigation of complaints against law enforcement. As per these principles, investigations should: ensure the independence of investigators, be able to gather adequate evidence, be conducted promptly after the incident, and allow for public scrutiny and victim involvement in the investigative process (CoE, 2009, p. 3).
In recognition of these standards and principles, representatives of international and regional actors, such as the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions and the Council of Europe Human Rights Commissioner have called for the establishment of independent police complaint bodies ('IPCB') as they are best suited to conduct effective investigations of police complaints (CoE, 2009; UNHRC, 2010).
Indeed, countries around the world, including the ones which have a history of pervasive and serious police abuses, have chosen to set-up IPCBs. While the precise institutional composition and mandate varies across the country contexts, the most effective and successful IPCBs seem to have the following features (CoE, 2009; UNHRC, 2010; UNODC, 2011, p. 69-70):
- Independence: IPCBs are institutionally and hierarchically independent from law enforcement agencies and the executive (often reporting to the parliament), and they have their own separate budget allocated by the parliament(UNHRC, 2010, para. 60). IPCBs also have operational independence, i.e. they are free to decide on priorities for police oversight, and whether or not to launch an investigation.
- Clear mandate: While there is no prescriptive international standard on the scope of IPCBs' mandate, IPCBs are most effective when national laws provide for a clear mandate, which does not duplicate the mandate of other external oversight actors (such as ombudsman institutions and/or the national human rights institution), and that can be attainable with the powers and resources the IPCB have. In some countries IPCBs are mandated to investigate all complaints against the police (criminal and disciplinary), whereas in others they are only mandated to investigate the most serious offences committed by the police (killings, torture, ill-treatment, high level corruption). This decision often depends on the history of police abuse in the country, and the resources available to IPCB to investigate complaints. If the IPCBs resources are limited, they often focus only on investigating the most serious offences (UNHRC, 2010, para. 49).
- Investigative powers: The most distinctive feature of IPCBs is that they are not reliant on law enforcement agencies to conduct investigations. Most effective IPCBs have their own team of investigators, entrusted with law enforcement-like powers such as access to information, entry, search and seizure, interview and subpoena persons and, in extreme cases, arrest of suspects. Some IPCBs do not have their own investigators but have the power to compel the police to cooperate and/or supervise the police investigation of the complaints.
- Resources: To operate effectively, IPCBs need substantial financial, technical (for collecting, safeguarding and analysing evidence) and human resources, including thematic experts temporarily hired for certain investigations (UNHRC, 2010, para. 46).
- Accessibility and transparency: None of the above features would matter, if IPCBs were not known to the general public, and accessible to victims of police abuse. Accordingly, successful IPCBs reach out to the public, especially to vulnerable groups. Moreover, IPCBs have a duty to be transparent about their work, and investigations, to earn the trust of the public with respect to their oversight role (UNHRC, 2010, para. 63-64).
In an accountability system, IPCBs' role is mostly of an ex-post nature, investigating complaints against the police. Although the complaint handling processes of IPCBs vary, depending on their exact mandates and powers, handling of complaints typically proceeds as follows:
- IPCB receives the complaint either directly from the complainant, or through referral from the respective police service.
- If the complaint is within the mandate of the IPCB, and if there are sufficient grounds for launching an investigation, IPCB initiates the investigative process.
- Depending on its mandate and powers, IPCB either conducts the investigation independently, or supervises or cooperates with the police service for the investigation of the complaint.
- Once the investigation is complete, the findings of the investigation are sent to the police service (for disciplinary complaints) or to the public prosecutor (for complaints concerning criminal offences). The key caveat for accountability is that, after an independent investigation by the IPCB that establishes grounds for disciplinary or criminal sanctions, it would be very difficult for the police service or the prosecution to completely disregard the findings of the IPCB investigation, to cover up the case and not proceed with disciplinary proceedings or prosecution.
- Some IPCBs also serve as an appeal body, in cases where the complainant and/or the accused police officer are not satisfied with the outcome of the disciplinary investigation or the sanction imposed.
- IPCBs publish the outcome of the investigation (often a more concise and redacted version to protect the rights of the suspect and the victim) on their websites; together with recommendations to police services and other state agencies to prevent such police misconduct or offences in the future (Schierkolk, 2017).
In addition to the aforementioned complaints handling procedure, some IPCBs are mandated to carry out regular monitoring and/or launch own-motion, thematic reviews of controversial policing policies without a complaint.
Country examples of IPCBs
The Police Ombudsman of Northern Ireland and the Danish Independent Police Complaints Authority are two examples of IPCBs with a wide mandate, investigating all criminal and disciplinary complaints against the police. The Independent Office for Police Conduct in England and Wales, the Independent Police Conduct Authority in New Zealand and the Law Enforcement Conduct Commission in Australia are IPCBs with a limited mandate, only investigating the most serious crimes and misconduct. In addition to the examples above, several IPCBs around the world have either quasi or full investigative powers, such as the Jamaican Independent Commission of Investigations (INDECOM), South African IPID, Enforcement Agency Integrity Commission in Malaysia. The Danish IPCB has an exceptional power of taking binding decisions on disciplinary investigations, and its decision is final. Most of the other IPCBs comply with the regular procedure of submitting investigation reports to either the police or the prosecution for disciplinary sanctions or prosecution.
While the establishment of IPCBs has been increasingly recommended by the international community, IPCB's capacities would be greatly compromised if they are not truly independent of the police and executive, not given a realistic mandate and appropriate investigative powers, and not provided with the relevant human and financial resources. A toothless IPCB, which raises public expectation of police accountability, but in practice cannot function effectively would do more damage than not having such an institution at all.
It is also important to note that IPCBs are not the only independent oversight institutions in a police accountability system. Ombudsman institutions, national human rights institutions, anti-corruption commissions, independent audit agencies are among the bodies that are independent of the police and the executive. These institutions often report to the Parliament and monitor various aspects of law enforcement depending on their mandates and powers.
Oversight by civil society and the media
Civil society and the media have an ancillary, yet essential, role in the police accountability system. Their oversight functions are more indirect to those of the judiciary, parliament and independent oversight mechanisms, since they do not have a formal mandate to authorize, scrutinize or investigate police actions. Nevertheless, civil society and media act as 'watchdogs' and bridge police accountability and the public opinion.
Civil society organizations contribute to the police accountability in different ways at all three stages of oversight:
In countries where there is an established culture of inclusive and participative policy making, ministerial working groups and parliamentary committees formally invite NGOs specialized on policing, for their expert input and contribution at early stages of law drafting and policymaking.
In this context, NGOs can influence the development of policies and laws that would enable human rights-compliant police procedures as well as a comprehensive accountability framework for misconduct.
NGOs monitor the police on an on-going basis through open sources. They collect and analyse data on a variety of policing practices, public perceptions on the police, police complaints and their outcomes. NGOs disseminate this information to the general public in diverse forms; through policy papers, conferences, and advocacy campaigns with a view to bringing key problems and challenges regarding police accountability to the forefront of public debate.
While NGOs cannot directly address such challenges themselves, they can call oversight actors into action and cooperate with them in their investigations.
In the wake of a scandal involving police abuse, or parliaments adopting laws which give all-encompassing powers to the police; NGOs take the lead in launching critical litigation challenging problematic laws or practices of police services (EU FRA, 2017, p.69).
Examples of oversight by civil society
- In 2016, the United Kingdom introduced a highly controversial Investigatory Powers Act, which gave police and intelligence agencies powers to access, control and alter electronic devices like computers, phones and tablets on an industrial scale, and read texts, online messages and emails and listen in on calls en masse, without requiring suspicion of criminal activity. In response, Liberty UK, a leading human rights organization challenged the UK Government before the High Court. The Court ruled part of the Investigatory Powers Act unlawful and obliged the Government to amend the law (Liberty UK, 2018).
- In the Western Balkans, NGOs dedicated to overseeing police integrity have established a regional network called 'Point Pulse - Western Balkans Pulse for Police Integrity and Trust', which aims at monitoring the state of police integrity in law enforcement agencies, and to advocate for policy changes to tackle police corruption. Member NGOs of this network conduct regular monitoring of police integrity in their respective countries, carry out public opinion surveys on trust in the police, and issue recommendations for policy changes. The regional platform publishes the research, findings and other outputs of NGOs from seven countries. The joint activities of member NGOs allow for an exchange of challenges and lessons learned across the countries and analyse regional trends in policing (Point Pulse, n.d.).
Both the activities of the police and the crucial work of the aforementioned oversight actors would be largely unknown to the general public if it were not for the media. The role of the media in police accountability, however, goes beyond reporting. The media contribute to police accountability by:
- Accessing government and police records and publishing information on regulations and policies on law enforcement, as well as statistics on police activities, thereby fostering transparency;
- Covering parliamentary and court hearings on cases involving police officers, informing the general public about accountability mechanisms;
- Cooperating with civil society organizations, ombudsman institutions and other oversight actors for awareness-raising campaigns concerning human rights implications of policing; and
- Carrying out investigative journalism with an aim to uncover on violations of human rights, misconduct and corruption in the police (Friedrich, Masson, McAndrew, 2012, p. 36).
The last function is particularly crucial for shedding light on police abuse, systemic issues in police governance and initiating public debate around these topics.
The points listed above can be considered as traditional roles of the conventional media in overseeing the police. However, the rise of the social media brought a new dimension to the debate about media and police accountability. The widespread use of social media platforms, and the sharing of video footage of police abuse (either through recording of by-standers, witnesses or even victims; or the disclosure of CCTV footage) often draw significant public attention to an incident in a short span of time. This leads to the incident being picked up by the conventional media, as well as complaints and oversight bodies. By way of example, Walter Scott, an unarmed man fleeing from the police in the United States, was shot dead by a police officer, who then planted a weapon on the victim's body and informed his colleagues through radio that the man had attempted to grab the weapon. However, the entire incident had been filmed by a passerby, and was posted on social media. Upon the release of the video, the police service arrested the officer, supported his indictment and fired him. The officer was later sentenced to 20 years in prison (Zuckerman, 2016; Blinder, 2017). This example illustrates the potential of social and other forms of media to ensure that appropriate action is taken.
Key debates: Ethical and legal considerations of media reporting on police abuse
There are certain risks and ethical considerations associated with the media investigating and reporting on police action and potential abuses. Firstly, in the wake of an incident, while internal and external investigations are still ongoing, media coverage should be careful not to violate the presumption of innocence concerning the accused officer. Secondly, reporting on an incident can carry the risk of violating the privacy of the victim and their relatives. Given the media's significant capacity to influence public opinion, these concerns raise questions about the need for developing ethical guidelines on investigating and reporting on police incidents. Module 10 on Media Integrity and Ethics of the E4J University Module Series on Integrity and Ethics provides further information on media and ethics in more general terms.
Besides the ethical considerations, journalists and media organizations around the world encounter several challenges in overseeing the police. Laws restricting access to information and criminalizing journalistic activity are amongst the primary legal challenges. Most countries have information classification laws to protect national security interests. However, if such laws are not in line with international standards, governments and their agencies may tend to over-classify information or impose other unnecessary barriers, which can compromise the role of the media. The media may be hesitant to carry out investigative journalism on issues related to policing in instances where there are laws and practices that criminalize the publishing of leaked information, where journalists are compelled to reveal their confidential sources; or where journalists are not provided with safeguards from intrusive surveillance.
Examples of media oversight
The Organized Crime and Corruption Reporting Project (OCCRP) is an investigative reporting platform formed by 40 non-profit investigative centres, scores of journalists and several major regional news organizations around the globe. The network covers Europe, Africa, Asia and Latin America. It was established in 2006 and since then has been carrying out transnational investigative reporting and promoting technology-based approaches to exposing organized crime and corruption worldwide. By way of example, in Serbia, five police chiefs, including the head of the criminal police were dismissed after their connections to a drug lord were revealed by joint investigations undertaken by Serbian local media and the OCCPR (Dojčinovic and Jovanović, 2014).
Monitoring by International Actors
International actors also play a role in promoting police accountability at the national level. Apart from the rulings of some regional courts (such as the European Court of Human Rights or Inter-American Court of Human Rights), which have binding effect; most international actors do not have the mandate to directly influence laws, policies and practices. Nevertheless, United Nations Treaty Monitoring Bodies and Special Rapporteurs play an important role in fostering police accountability through norm setting, official country visits (especially inspection of detention facilities), individual complaint mechanisms and urgent actions, and supporting the capacities of local oversight actors (see, for example, with respect to children in conflict with the law, Van Keirsbilck and Grandfils, 2017).
This section provided an overview of actors and oversight mechanisms to ensure police accountability. There is no doubt that such mechanisms can function most effectively in democratic societies, where there is an established culture of transparency and accountability, a tradition of participatory and inclusive policymaking; constitutional provisions for safeguarding human rights; robust legal and institutional framework establishing the role, powers and functions of oversight actors, and resources for oversight actors to carry out their duties effectively. However, there is no country which has all the aforementioned features, and in which all oversight actors and mechanisms work perfectly. That is why the section referred to challenges with respect to each oversight actor.
Societies around the world continue to endure the effects of regimes where corruption is rampant, the rule of law is jeopardized, and where there is not sufficient political will, institutional capacity, expertise and resources to hold the police accountable. However, this does not mean that international human rights law, accountability standards and examples of good practices around the world would not be relevant in such contexts. On the contrary, in such settings, it is crucial to promote international and regional standards, illustrate how countries in transition to democracy in other parts of the world reformed their accountability structures and established police oversight mechanisms; and engage students to discuss preconditions for such oversight actors to be effective in their own countries. In doing so, it is also important to highlight that no country has achieved 'effective police accountability, integrity, oversight mechanisms' overnight; and that as policing evolves and will continue to evolve in the future due to new security and socio-political developments; so will the mechanisms and actors for police oversight need to be reviewed and assessed.