Police weapons policy is a matter of national law for the forty-seven Member States of the Council of Europe. The 2001 European Code on Police Ethics, prepared by the Council of Europe, contains nonbinding recommendations on police activities. Case law of the European Court of Human Rights has set standards on police action during interrogation, detention, and peaceful assembly, and prohibits the use of torture.
In 1989, following the changes in the political landscape of Eastern and Central Europe, the Council of Europe, an intergovernmental organization dedicated to the protection of human rights, fundamental freedoms and the rule of law amongst its forty-seven Member States, assigned the Committee of Ministers the task of drafting a code of ethics concerning police activities. In 2001, the European Code on Police Ethics (the Code) came to fruition. The Code, which contains general, nonbinding recommendations, does not address the type of weapons police are allowed to carry. Police weaponry is a matter of national law. The Code does, however, contain standards on the use of police force and prohibits the use of torture under any circumstances. The Code also reflects the principles and standards emanating from the case law of the European Court of Human Rights.
In addition, at the European level, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has also produced its own set of guiding principles on a number of issues relevant to the activities of the police, such as the detention of suspects, the use of electrical discharge weapons, and the fight against impunity.
II. Legal Instruments
A. European Convention for the Protection of Human Rights and Fundamental Freedoms
The European Convention for the Protection of Human Rights and Fundamental Freedoms, which is applicable to everyone within the jurisdiction of the Council of Europe Member States, also governs police activities.
Two main articles of the Convention on Human Rights apply to the use of force by police: (a) article 2, which limits the use of lethal or potentially lethal force when it is necessary to save the life of a person; and (b) article 3, which contains an absolute prohibition on the use of torture or ill and degrading treatment. The European Court of Human Rights has repeatedly held in its case law that article 3 has no exceptions or derogations (see Part III, infra).
In general, when interfering with rights of individuals related to private and family life, peaceful assembly and association, or freedom of thought or religion, which are protected by the European Convention on Human Rights, police forces are required to meet three standards: (1) they must act in pursuit of a legitimate aim, (2) they must comply with the law, and (3) they must ensure that the action is necessary in a democratic society. In order to meet the third standard, any police action must meet three additional criteria: the action must correspond to a pressing social need, be proportionate to the aim to be achieved, and be supported by sufficient reasons.
B. Code of Ethics for Police
The Code of Ethics for the Police applies to public police forces, police services, or other publicly authorized bodies whose primary duties are the maintenance of law and order. As a public body, the police should derive their authority from the law and their operations must be conducted in compliance with national and international standards. With regard to the police and the criminal justice system, the Code recommends that the roles of the police, the prosecution, the judiciary, and the correctional system be clearly divided and that the police have no controlling authority over such bodies.
Regarding police action and intervention, the Code reiterates the principle of respect of the right to life of individuals and the requirement not to inflict or instigate any act of torture or degrading treatment under any circumstances. Other key highlights of the Code’s recommendations regarding police action and intervention provide that the police
- may use force only when strictly necessary, and such force must be proportionate to the objectives pursued;
- must always verify the lawfulness of their intended actions;
- must execute orders issued by their superiors, but must abstain from carrying out illegal orders; and
- must execute their duties impartially and not discriminate.
With regard to accountability, the Code recommends that the police should be accountable to the state and citizens.
III. Case Law of the European Court of Human Rights
The European Court of Human Rights (ECHR) has produced a significant body of case law dealing with issues related to the use of excessive force by police, interrogation techniques, detention, arrest, and the policing of public assemblies. The ECHR has held that police action must meet the standards of necessity, relevance, and sufficiency. The criterion of necessity is met when police action serves a pressing social need. The sufficiency standard requires (a) a connection between the means used and the objectives to be achieved; and (b) a fair balance between society’s general interests versus individual rights. The European Code of Ethics for the Police has been influenced to a great extent by the rich case law of the ECHR, and the standards described above have been incorporated into the Code.
With regard to article 2 and the use of force and when it is justified in the deprivation of life, the ECHR stated in the case of McCann and Others v. United Kingdom that
the text of Article 2 (art. 2), read as a whole, demonstrates that paragraph 2 (art. 2-2) does not primarily define instances where it is permitted intentionally to kill an individual, but describes the situations where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life. The use of force, however, must be no more than “absolutely necessary”.
Senior Foreign Law Specialist
 European Code of Police Ethics (Recommendation Rec(2001)10 of the Committee of Ministers to Member States), adopted by the Committee of Ministers in 2001, https://wcd.coe.int/ViewDoc.jsp?id=223251.
 J. Murdoch & Ralph Roche, The European Convention on Human Rights and Policing: A Handbook for Police Officers and Other Law Enforcement Officials 101 (2013), http://www.coe.int/t/dghl/cooperation/ capacitybuilding/Source/documentation/EuropeanConventionHandbookForPolice.pdf.
 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, CPT Standards (2013), http://www.cpt.coe.int/en/documents/eng-standards.pdf.
 Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No. 005, Sept. 3, 1953.
 Id. art. 2.
 Id. art. 3.
 Handbook for Police Officers, supra note 2, at 100–02.
 Code of Police Ethics, supra note 1, art. 2.
 Id. art. 6.
 Id. arts. 35–36.
 Id. arts. 37–40.
 Id. art. 59.
 Handbook for Police Officers, supra note 2, at 104.
 Id. at 17.
 Id. at 18.
Last Updated: 06/09/2015