Independent Police Complaints Board

Introduction

It has been three years since the Independent Police Complaints Board was established and initiated its activity. The idea of establishing an independent body that would monitor the work of the Police (monitoring whether its conduct is in compliance with the criteria of the rule of law), came up earlier, inter alia in the proposals and recommendations of different NGOs. The demonstrations and riots in the autumn of 2006 and the serious Police abuses and violations of law related to them played a significant role in the fact that the Board did not remain solely a vagrant idea. The existence of such a Board is not unique among other European countries, but the importance of such bodies is still not widely acknowledged.

In 2007 with the modification of Act XXXIV of 1994 on the Police (hereinafter referred to as ‘Police Act’) the Parliament amended the provisions for the structure of the police and established the Board. The Board works as an organ of civil control by giving a new platform to the citizens to complain against Police conduct.

The Board

As members of the Board may be elected lawyers with a clean record, who are eligible to vote and gained outstanding experiences in the field of the protection of fundamental rights. The first five members of the Board were elected by the Parliament on 25 February 2008 with qualified majority for six years on the joint proposal of the Committee on Human Rights and the Committee on Law Enforcement of the Parliament.

On 23 July 2010 a new member of the Board, Ákos Kozma was elected by the Parliament, since the former chairman resigned with the effect of 1 July 2010. The new chairmen of the Board became Imre Juhász, who is an expert in European law, teaches at the Department of Civil Procedure Law of the Eötvös Loránd University (Budapest), Faculty of Law and was member of the former “Civil Lawyers Committee”. The deputy chairman, Ákos Kozma is an attorney at law and a law professor.
Other members of the Board:

• Nóra Fráterné Ferenczy, lawyer, expert in bank law, former control lawyer of the Hungarian Tax and Financial Control Administration,
• András Féja, attorney at law, former adviser of the Vice-Chairman’s Secretariat of the Hungarian Parliament, and
• András Kristóf Kádár, Co-Chairman of the Hungarian Helsinki Committee. The Board member’s work is supported by a Secretariat of 10 people.

The Police Act defined rigorous conditions for Board members in many ways, e.g., it specifies personal conflicts of interest, a specified-term assignment (six years) and the prohibition of the member’s reelection. The Secretariat is part of the Secretariat of Parliament. The location and the operational conditions of the Board are provided by the Chairman of the Parliament and the Minister of Finance.

The Board is independent from the organizational hierarchy of the police, and shall not be instructed or influenced during its work. The Board shall report every three years to the Parliament on its operational and procedural experiences, and each year it has to inform the Committees of the Parliament competent in the field of law enforcement and human rights.

The Competence of the Board

The aim of the Board is, on the basis of the Police Act, to conduct complaint procedures – which fell into the excusive competence of the Police before – on its own, from a fundamental rights protective point of view and irrespectively of the subordinate relations. According to Article 92 (1) of the Police Act those police measures and omissions fall into the competence of the Board, which arise in connection with the application of Chapters IV, V and VI of the Police Act. Accordingly the Board can proceed and investigate certain measures or acts – and decide whether fundamental rights were violated – in the following cases:
– obligation of the performance of police tasks and instructions, and their violation or omission (especially, but not exclusively: obligation to take measures, requirement of proportionality, obligation of police officers to be identifiable, obligation of police officers to provide help)
– police measures or omissions, and their lawfulness (especially, but not exclusively: ID check, search of clothes, luggage and vehicle, arrest, short-term arrest, alien-policing measure, measure taken in private apartment, traffic-related measure),
– application and lawfulness of coercive means (especially, but not exclusively: applying physical force, handcuffing, chemical device, electric shock device, police baton, roadblock, using a weapon, acting in group, quelling a crowd).

On the basis of the above the Board cannot initiate investigations based on general remarks, comments, or public announcements etc. The Board can not start its procedure either, if the disputed police action occurred in course of another pending procedure – e.g. criminal or petty offense procedure –, since in this case the complainant has to enforce his/her rights for legal remedy in this other procedure. For this reason the complainant can only submit a complaint on his/her own behalf, which means that the Board can only accept a complaint when it is filed by the person affected by the police action. The complainant’s legal representative, legal counsel or authorized representative may act on behalf of the complainant as well (the legal representatives are entitled to proceed on behalf of an incompetent person, and the legal representatives or an authorized representative may proceed on behalf of persons with diminished capacity).

Procedure of the Board

The Board conducts procedures initiated upon request, the Board is not able to act ex officio. The procedure of the Board is free of charge and expenses, however the complainant can not be a fictional person and the complaint can not be anonym (but later the complainant may ask for the deprival of the resolution from personal data.)

It must be emphasized that complaints shall be filed with the Board within eight days from the infringement of law, but in case the complainant became aware of the infringement at a later time, the deadline shall be calculated from this later date. There is one case when the Board may derive from the above method, i.e. if the complaint was submitted to the police organ by which the given measure was taken and the complainant was informed on the opportunity to turn to the Board by the police organ, or by the Board itself. However, in case the deadline is missed innocently the Board accepts the application for extension.

According to the Police Act the resolution of the Board shall be adopted within 90 days from the date the complaint was submitted. The Board shall not be considered as an authority, its resolutions are not binding, it may not overrule the conducts of the police and is not entitled to give instructions. Furthermore the Board can not suspend petty offense and criminal procedures. The Board has the opportunity to conduct investigations, and pass resolutions which are not binding. There is no right to appeal the resolution of the Board.

The main types of decisions are the following. The complaint shall be rejected by the Board if the complaint does not refer to a certain case, i.e. it has a general nature; or the complainant was not filed by the person entitled; the complaint was filed belatedly; or the Board has no competence for the investigation. In case the Board lacks of competence, but the competent organ can be determined, the Board rejects the complaint and forwards it to the organ having competence and venue.

In case the Board establishes the insignificant infringement of fundamental rights or the lack of an infringement of fundamental rights the complaint is forwarded to the head of the police organ by which the given measure was taken. The same decision appears if according to the Board’s opinion the restriction of a fundamental right was justified and lawful, and in case the infringement of fundamental rights can not be determined. However, the Board is not entitled to forward the complaint if the complainant previously protests against the forwarding. In this case the Board establishes the termination of the procedure in its resolution. The Board decides on the termination as well, if the complaint is withdrawn by the complainant.

If the Board establishes the severe infringement of fundamental rights, the complaint and the resolution is sent to the Head of the National Police Headquarters. Within fifteen days after receiving the Board’s resolution the Head of the National Police Headquarters decides on the case in a one-instance procedure according to the provisions for the general rules of administrative proceedings and services. The resolution of the Board does not bind the Head of the National Police Headquarters, but he must explain the reasons for deciding contrary to the Board’s resolution. There is no right to appeal the administrational decision of the Head of the National Police Headquarters, but the complainant is entitled to challenge it before the court in the frames of an oversight proceeding.

The resolution of the Board reflects the majority opinion, full consent of the members is not needed. Members of the Board may express their different standpoints by attaching their dissenting and concurring opinions to the resolutions. The members have used this opportunity already several times to express their different opinions.

The Board publishes its resolutions – and in case of a severe infringement of fundamental rights the decision of the Head of the National Police Headquarters as well – on its website (www.panasztestulet.hu), unless the complainant protested beforehand.

Activities of the Board in numbers

In 2008 the Board received 261 complaints, from which 174 were investigated in the subject year. Comparing to this number a significant increase can be noticed in 2009, 737 cases were registered as claims and 459 were investigated by the Board.
The joint rate of the number of cases requiring investigation on the merits (change of venue, forwarding the case to the Head of the National Police Headquarters, and termination of the investigation - 251 cases) comparing with the total number of the examined cases was 55% in 2009, while in 2008 this rate had been 64% (112 cases). The rate of the cases not requiring investigation on the merits (rejection, rejection with change of venue – 208 cases) comparing with the total number of the cases was 45%, which had been 36% in 2008 (62 cases). The most significant change can be observed in the growth of rejections: while in 2008 29% of the registered cases had been refused by the Board, this ratio was 44% in 2009.
The number of complaints sent to the Head of the National Police Headquarters is increasing, but a decrease can be observed in the ratio: this number rose from 40 (2008) to 59 (2009), while the ratio compared to the total number of cases decreased from 23% (2008) to 13% (2009). Until closing the annual informative for 2009, 54 times out of 59 the Board received a feedback (the decision) from the Head of the National Police Headquarters. Only 20% of the decisions agreed with the Board’s point of view, almost 38% of them were completely rejected. In A further 26 cases (almost 50%) the Head of the National Police Headquarters partially agreed with the Board’s standpoint, and partly accepted the complaint. According to this, in 2008 the Head of the National Police Headquarters rejected the Board’s resolutions in 57% of the cases (upheld in 24% and partly upheld in 19% of the cases).
In 2008, the most frequently questioned fundamental rights were personal freedom (25%), right to human dignity (17%), right to fair proceedings (15 %), personal data protection (10 %), and right to physical and mental health. In 2009, the sequence of the questioned fundamental rights was the following: right to fair proceedings (25 %), personal freedom (17%), human dignity (13%), personal data protection (12 %), freedom of assembly (7%). It’s apparent that in both years the same fundamental rights appeared in the first four places, only the order and the distribution differed.
The most frequently violated fundamental rights were in both years the same in the first three places, only the order and the distribution were different: While in 2008 the right to personal freedom (24 %) had been followed by the right to human dignity (17 %) and the right to fair proceedings, in 2009 the right to fair proceedings (31%), than the right to human dignity (17 %), and the personal freedom (16 %) were violated.
In 2008 the complainants mostly disapproved the violation of the requirement of proportionality at more than 10% of the cases, followed by complaints related to identity check (9%) and enhanced control (7%). In 2009 the objections were drawn against the same police conduct, but the identity check stood in first place (10%), followed by the enhanced control (7 %), and the exceeding of proportionality.
Until 30 September 2010 the Board registered 224 complaints and until the same date resolutions had been made in 426 cases, including the non-finished complaints from 2009.

International Relations

The independent control of the police is integrated in most European countries into the public prosecutor’s office, the police hierarchy or into some other body of the home affairs, or judicial administration. Outside of the United Kingdom only a few examples exist for such an independent civil control agency subordinated only to the legislative power. The Belgian Comité Permanent de Controle des Services de Police (Standing Police Monitoring Committee) was established in 1991 and is liable to the Belgian Parliament only. The Committee’s main objective is to investigate complaints filed against the police, and to make recommendations for the solution of structural problems. Another example is in Northern Ireland where in 2000 the institution of the Police Ombudsman for Northern Ireland was established with the exclusive competence to investigate complaints against the police. (It falls beyond the competence of the general ombudsman to investigate police complaints.) His task includes organizing research projects on law enforcement, education, and elaborating policies and recommendations on law enforcement. Very similar to the Police Ombudsman for Northern Ireland is the Police Complaints Commissioner for Scotland established in 2007.

The origin of these mentioned institutions, the Independent Police Complaint Commission (IPPC), became operational in 2004 in the United Kingdom (more specifically in England and Wales). The idea of an independent and impartial organ to investigate police complaints had already come up in 1929 in England. The present form of it became in 2002 by passing the Police Reform Act. The head organ of the Independent Police Complaint Commission is the Committee, which consists of a Chairman, a Deputy Chairman and a board of 12 Commissioners. The Chairman is a Crown appointment and Commissioners (including Deputy Chairs) are appointed by the Home Secretary. The Commission is supported by a staff of around 400 people, 120 of them are investigators who are working in regions (Central, Wales-South-West, North, London-SE). The IPCC investigates the most serious complaints on its own and in other cases supervises the police proceedings. The Task of IPCC is to perform several educational, communicational, research etc. tasks in order to reconstruct and maintain the public confidence in the police complaints system. The IPCC regularly conducts questionnaire researches for the measurement of the wide general opinion and the satisfaction of the complainants.

On 24 September, 2009 the Board and the Hungarian Helsinki Committee jointly organized a two-day international expert conference on "Independent Police Complaint Mechanisms -Domestic and International Experience" at the Parliament. On the first day of the conference lectures were held on police complaint procedures by Mr. Nicholas Long, commissioner for international development and liaison of the above mentioned, well established Independent Police Complaint Commission, and Mr. Walter Peters, member of the Belgian Standing Police Monitoring Committee. In addition, representatives of four countries from Eastern Europe - Bulgaria, the Czech Republic, Poland and Romania - also shared their experience on the functioning of complaint mechanisms in their respective home countries, where the introduction of civil control over law enforcement is yet under consideration.

In May 2010 the Board hosted the Serbian Ombudsman's Deputy for the Protection of Minority and Human Rights and his six-member delegation. Beyond the mutual introduction of the activities of the two authorities, the parties formulated their intention to maintain their consultation in the future, which has proved highly valuable with respect to the exchange of experience.