Police brutality from a legal perspective: what really are the limits of what is permissible?
The topic of "police brutality" has recently become part and parcel of public debate.
Several incidents gave rise to a strong polarization of the subject, which in turn led to new incidents and an ever-growing controversy.
But when is police violence permissible and what are the limits of this "permissible" violence?
As an enforcer of public order, the police have what is known as a monopoly of violence: they alone have the right to use force in the performance of their duties.
As for Belgium, the limits and conditions of application of this authorized force can be found in the 1992 Law on Police Service (hereinafter "WPA").
The mission of the police is defined in Article 1 of the aforementioned law and reads as follows :
"Police forces shall perform their missions under the authority and responsibility of the authorities designated for that purpose by or under the law.
In fulfilling their missions of administrative or judicial policing, police forces monitor compliance and contribute to the protection of individual rights and freedoms, as well as the democratic development of society.
To fulfill their missions, they use coercive means only under the conditions determined by law."
Article 37 WPA specifically addresses the use of these coercive measures :
"In fulfilling his missions of administrative or judicial policing, any member of the operational framework, taking into account the risks involved, may use force to pursue a lawful objective that cannot be achieved by other means.
Any use of force must be reasonable and proportionate to the purpose sought.
Any use of force is preceded by a warning, unless that use would render it ineffective."
This article, which serves as the basis for legitimizing police violence, reflects three fundamental legal principles: legality, subsidiarity and proportionality.
- Legality
The principle of legality means that the actions of police forces, including the use of permissible force, must be based on a pre-existing statutory provision.
Moreover, the police may use force and coercive measures only to the extent that doing so would create a legitimate aim is pursued.
This purpose may be expressly provided for by law, may be the result of a statutory police order or may result from the regulatory use of a statutory power.
- Subsidiarity
Article 37 WPA prescribes that the use of force is permitted only to the extent that the legal purpose cannot be achieved in any other way.
In this sense, the use of force must be understood as a ''ultimum remedium', a last resort.
If it later turned out that the objective sought could also be achieved in another, non-violent way, the principle of subsidiarity will have been violated and the violence will be declared inadmissible.
The requirement of subsidiarity also means that once the goal has been achieved, the violence must also stop immediately.
- Proportionality
The last requirement is one of proportionality: the use of force must always be proportionate to the objective pursued.
Excessive violence is always wrong in this sense.
The use of handcuffs was also explicitly regulated under the WPA.
The police may proceed to handcuff persons only in the following cases (Article 37bis WPA):
- In the transfer, removal and monitoring of detainees ;
- in the surveillance of a person who is the subject of a judicial deprivation of liberty or administrative arrest, if it is considered necessary given the circumstances, being, inter alia, by virtue of:
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- that person's behavior at or during the deprivation of liberty
- His behavior in past deprivations of liberty
- the nature of the crime committed
- the nature of the public disturbance caused
- resistance or violence to the deprivation of liberty
- the risk of escape
- the danger posed by the person concerned to himself, the police or third parties
- the danger that the person will attempt to destroy evidence or cause damage.
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Even with regard to the use of handcuffs, the principles of legality, subsidiarity and proportionality must thus be respected.
The same idea applies to the use of firearms, as regulated by Article 38 WPA.
Only in cases of utter necessity will a firearm be justified.
The circumstances in which the use is allowed are listed exhaustively in the law (Article 38 WPA):
- legitimate defense ;
- red-handed situations or in case of a crime (serious crime) ;
- For the protection of persons during a judicial assignment ;
- for the protection of persons during an administrative assignment.
Last but not least, both the use of force, weapons and other means of coercion will always have to be preceded by a verbal warning.
Although the police thus have a so-called monopoly on force, the actual use of this force is subject to a number of conditions that must be strictly observed.
Any use of force that does not meet the above-mentioned conditions should be declared unauthorized.
However, the use of coercive force and violence will constitute a "necessary evil" in some situations, this to protect the targeted person himself or to protect third parties.
If you would like more information about this, please feel free to contact us at info@bannister.be or 03/369.28.00
August 21, 2020
