This document gathers together initial summaries of the legal grounds for police stops in European states. They briefly outline the law governing stops (including identity checks and traffic stops) and the ways that the law can be used. It further details any system for recording and making public information about the use of these powers and the ways in which citizens can challenge the use of the powers. We should note that this is an initial summary to enable us to begin our work as a COST Action and not a definitive statement. It is also a work in progress. For any corrections and suggestions, please contact us.
The full Report v.2019 can be downloaded here.
BE_1.The legislative powers of the police to stop individuals
· Article 1 of the Royal Decree of 25 March, 2003, regarding identity cards (artikel één van het Koninklijk Besluit van 25 maart 2003 betreffende identiteitskaarten); and
· Article 34 of the Act on the Police Function (art. 34 van de Wet op het Politieambt (WPA)).
Article 1 of the Royal Decree states, among other things, that every Belgian citizen over the age of 15 should have his/her identity card with him/her at all times and submit it to the police when requested. However, the legal basis for such identity checks is in Article 34 of the WPA. This defines: who can be the subject of a check; for how long the identity documents may be retained; and for what time someone may be detained if they refuse to or cannot deliver proof of identity. The legislation allows the citizen who is being checked to prove his/her identity in any way. This means that, besides the identity card, other documents may also be shown. Anyone who is not in possession of a valid identification document can receive a fine and the police may draw up a report.
Section 1 of Article 34 of the WPA specifies that police officers may check someone’s identity when that person has committed a crime or intends to enter a space where there are concerns about potential public disorder. These are known as reactive identity checks in that officers react to an event that has already taken place. The same section also mentions proactive police checks. These are permitted “if they, on the grounds of that person’s behaviour, material clues or circumstances of place or time, have reasonable grounds to think that the person being searched has tried or is prepared to commit a crime or that he/she could disturb or has disturbed public order”.
This phrase does not apply to police officers who have the status of a police inspector. They possess a more limited power. Police agents can only conduct identity checks “in the frame of the execution of their powers with regard to traffic, local police orders, the establishment of traffic accidents and their consequences, assistance to police officers, the surveillance of arrested citizens and catching someone in the act (flagrante delicto)” (De Raedt, et al., 2017, p. 64).
BE_2.The obligation to register stops
BE_3.Legislation procedures which protect citizens from police offences
Citizens may complain to the Internal Control service (a complaints department) of the specific police district. At the federal level, there is also an Internal Control service. It is also possible to file a complaint with the General Inspectorate of the Federal and Local Police. External scrutiny is provided by the Standing Committee of Surveillance of the police forces (Vast Comité van Toezicht op de politiediensten (Comité P)) to which citizens can complain. The Comité P, however, does not possess powers of sanction and cannot, therefore, impose independent penalties.
BOSNIA and HERZEGOVINA
BA_1.The legislative powers of the police to stop individuals
• Police officers are authorized to stop and check the identity of a person who:
• Represents a threat to another person or to public order • Is under investigation
• Is in a place or vehicle being investigated
• Is in an area subject to temporary restrictions on freedom of movement
• Behaves in a suspicious manner
• In in a restricted area where all identities can be checked.
A police officer shall inform the person of the reasons for the identity check.
Furthermore, the police officer is authorized to search a person, their possessions and their means of transport in order to find prohibited items, such as weapons. A search of a person for these purposes may include a search of clothing and footwear, and of items in their possession or in the immediate vicinity. The search of a vehicle may include all contents, whether in public view or concealed. Searches are carried out by a person of the same sex, except in urgent cases, and may include a physical search, the use of equipment (mirrors, detectors, etc.) or the use of police dogs. As a general rule, an officer will separate the person from other persons and explain the reasons for the search. Any prohibited items found will be confiscated according to the provisions of the Criminal Procedure Code or the Misdemeanor Act.
BA_2.The obligation to register stops
BA_3.Legislation procedures which protect citizens from police offences
BG_1.The legislative powers of the police to stop individuals
• The Law on the Ministry of the Interior (Zakon za MVR – Law on MOI), adopted on 27 June 2014 and amended most recently in January 2019;
• The Rules for the Application of the Law on the Ministry of the Interior (Pravilnik za prilagane na zakona za MVR – Rules on the Application); and
• The Code of Criminal Procedure (Nakazatelno-procesualen kodeks – NPK).
Article 30 (Law on MOI) introduces powers to conduct checks of documents and on the spot checks, road inspection stops and checks, border inspection checks and other forms of control duties entrusted to the police. The authority to conduct identity checks is explicitly mentioned in Article 70 (Law on MOI). Subjects of identity checks are persons “for whom there is evidence of some criminal offence”. Identity checks consist of the inspection of personal documents that should be presented by the person checked. If identity cannot be established, the check might culminate in arrest (Article 72, line 2, point 4, Law on MOI). During the arrest, additional checks (bodily search) can be conducted to ensure the arrested person is not carrying dangerous objects. Application of force is also permitted if necessary. Same sex officers conduct bodily searches (Article 80, Law on MOI; Article 164, line 2, NPK). The Law and the Rules on its application outline/distinguish checks of persons, personal documents, personal belongings, vehicles (transport inspection), premises and border checks. Procedural steps vary accordingly.
BG_2.The obligation to register stops
BG_3.Legislation procedures which protect citizens from police offences
HR_1.The legislative powers of the police to stop individuals
HR_2.The obligation to register stops
HR_3.Legislation procedures which protect citizens from police offences
DK_1.The legislative powers of the police to stop individuals
DK_2.The obligation to register stops
DK_3.Legislation procedures which protect citizens from police offences
There are different ways to complain:
· about an arrest. This is defined as a dispositions complaint. The police will handle the case via either the National Police (Rigspolitiet) or the Public Prosecutor (Statsadvokaten);
· about an officer’s behavior and unnecessary use of force. The Independent Police Prosecutor (Den uafhængige Politianklagemyndighed) will investigate it. The case can result in a warning or advice about the police officer’s conduct, unless there is a basis for criminal proceedings, in which case it is passed to the Public Prosecutor. If the prosecutor will not plea for trial, it is possible to pass the case to the Attorney General.
· about police behavior in a traffic stop, this can be addressed to the Independent Police Prosecutor.
Retsplejeloven §§108-109 describes how the different agencies are organized in relation to complaints, while §§118-119 describes the authorities and powers of the Independent Public Prosecutor. Thus, in Denmark, in case of disposition complaints, the respective police district receives and processes the complainants while the remaining complaints are received and processed by an independent agency.
FI_1.The legislative powers of the police to stop individuals
FI_2.The obligation to register stops
FI_3.Legislation procedures which protect citizens from police offences
Legislation provides two separate and independent proceedings for individual complaints concerning incorrect or illegal acts of the police:
· police actions may be investigated in criminal proceedings if there are reasons to suspect that the police officer has committed an offence while on duty. In these cases, the criminal investigation of the case is led by the Office of the Prosecutor General.
· it is possible to make an administrative complaint to: (1) the police (a local police department or the National Police Board); (2) the Non-Discrimination Ombudsman; (3) the Parliamentary Ombudsman; (4) the Chancellor of Justice; or (5) the Non-Discrimination and Equality Tribunal. The tribunal is the only complaint mechanism that can actually prohibit continued or repeated discrimination and which can also impose a conditional fine to enforce compliance with its injunctions.
Finland does not have an independent body specialising in the investigation of misconduct by law enforcement officials.
FR_1.The legislative powers of the police to stop individuals
FR_2.The obligation to register stops
FR_3.Legislation procedures which protect citizens from police offences
· The Défenseur des droits (an independent institution created in 2008): individuals (victims or witnesses) may file a complaint by meeting a delegate of the Défenseur des droits, calling the institution or posting a report on a dedicated website (https://formulaire.defenseurdesdroits.fr/code/afficher.php?ETAPE=accueil_2016).
· The prosecutor: individuals (victims or witnesses) may file a complaint with the public prosecutor.
· The National inspectorates (Inspection générale de la police nationale, inspection générale de la gendarmerie nationale): individuals (victims or witnesses) may file a complaint by phone or mail or file a complaint at the police station. Since 2013, they may also post a report on a dedicated platform (3661 reports in 2017): https://www.police-nationale.interieur.gouv.fr/Organisation/Inspection-Generale-de-la-Police-Nationale/Signalement-IGPN .
HU_1.The legislative powers of the police to stop individuals
The police can check the body, clothing and bags of a person in order to arrest an criminal offender or in order to prevent events which threaten public security (Article 25 of Rtv).
HU_2.The obligation to register stops
The police stop and search should be recorded by the officer in their daily report (Article 25 of the Decree of the Minister of Interior, No. 30/2011, published on 22nd September, on the service rules of the police). The report should contain the name and address of the person stopped. The report (and the personal data of the stopped person) should be preserved for 180 days.
If the stop is performed by municipal policing bodies (public safety surveillance – közterület-felügyelet), the stop should be reported by these municipal officers (Article 4 of the Decree of the Minister of Interior No. 43/1999, published on 26th November, on the measures of public safety surveillance).
HU_3.Legislation procedures which protect citizens from police offences
· The first complaint can be submitted to the police body which performed the stop. This complaint can be submitted within 30 days and it should be based on the infringement of the rights and legitimate interest of the person. The complaint is adjudicated by the oversight body of the organisation which conducted the stop. The procedure and the decision are administrative ones which can be sued in the administrative courts. If the oversight body is a local police body, it can be appealed. Judicial review is guaranteed because administrative decisions which cannot be appealed can be sued.
· The second type of complaint should be based on the infringement of fundamental rights. This complaint can be submitted within 20 days of the coercive act. The decision on this complaint is made by the national leader of the given police body (the High Commander, or High Captain [főkapitány] of the National Police, the Director of the Counter Terrorism Centre or the Director of the Internal Affairs Service). This decision is an administrative one, so it can be sued in the administrative courts. The difference in this type of complaint is that the decision of the national leader is based on the opinion of the Independent Law Enforcement Complaint Panel, which can be interpreted as an Ombudsman-type body, whose members are distinguished experts on the fundamental rights.
· These two types of complaint are regulated by Chapter IX (Articles 92-93/B) of the Rtv. The general procedural rules of the police bodies are regulated by the Act CL of 2016 on the Code of General Administrative Procedure.
Therefore, decisions on complaints are administrative ones which can be sued in the administrative courts. The procedure of the administrative courts is the procedure of the general administrative lawsuit. This judicial review is regulated by the Act I of 2017 on the Code of the Administrative Court Procedure. If the coercive act was done by a municipal policing body, there is a similar remedy. This is called a complaint (panasz). The complaint in the Act CXX of 2012, as a remedy against the coercive actions of officers of the public space surveillance, is an administrative proceeding. The complaint is decided by the leader of the general (and not the municipal) police authority. The decision on this complaint is a first tier administrative decision, that can be appealed to a second-tier administrative body, and these decisions can also be sued.
IE_1.The legislative powers of the police to stop individuals
The police also have the power, under certain circumstances, to stop and search individuals. If a police officer has a reasonable suspicion that an individual has committed or is committing an offence, s/he has various powers that allow him/her to search the individual without the individual’s consent and before the individual has been arrested. The power to stop and search is a statutory power set out in the legislation governing the particular offences to which the power applies. Some common examples include:
· Misuse of Drugs Act 1977 – a police officer can stop and search an individual if s/he has reasonable cause to suspect that the individual is in possession of a controlled drug;
· Firearms and Offensive Weapons Act 1990 – a police officer can stop and search an individual if s/he suspects, with reasonable cause, that a person has an offensive weapon or a realistic imitation firearm in their possession in a public place;
· Public Order Act 1994 – a police officer can stop and search an individual in a place that has been designated a restricted area by a Superintendent under the Public Order Act if the police officer has reasonable cause to suspect that the individual is in possession of alcohol, a disposable container or an article that could be used to injure someone; and
· Offences Against the State Act 1939 – a police officer can stop and search an individual if he/she suspects that the individual is committing or has committed an offence under the Offences Against the State Act (organised-crime and terrorism-related offences).
These are just some common examples. There are numerous other Acts which allow police officers to lawfully search a person.
IE_2.The obligation to register stops
IE_3.Legislation procedures which protect citizens from police offences
The Garda Síochána Ombudsman Commission (GSOC) is an independent statutory body charged with investigating complaints concerning police conduct. If a member of the public makes a complaint to GSOC, and if the complaint is deemed admissible, GSOC will then decide whether it will investigate the complaint itself or whether it will ‘lease’ it back to An Garda Síochána (Ireland’s Police Service) to investigate. If it is ‘leased’ back to An Garda Síochána, GSOC may still supervise the investigation, if it so wishes. Where a complaint is investigated by An Garda Síochána without supervision from GSOC and an individual is not satisfied with the outcome, a request can be made to GSOC to conduct a review of the investigation. If it appears that there may have been a breach of the Discipline Regulations by a police officer, GSOC may make recommendations to the Garda Commissioner concerning disciplinary proceedings. If it appears that the case may warrant criminal prosecution, GSOC may send a file to the Director of Public Prosecutions. If there is insufficient evidence to support one of the above, the case may be discontinued.
IT_1.The legislative powers of the police to stop individuals
· by the code of criminal procedure (hereinafter “CCP”) in strict connection with the power to arrest individuals; or
· by other pieces of legislation concerning national security or public order issues (hereinafter the “administrative legal framework”)
A) Within the framework of CCP, stopping, questioning and searching may be performed by police either:
· Following an order of the public prosecutor where the conditions listed in Articles 384 CCP (a person suspected of a serious crime is at risk of absconding);
· On their own initiative, and in particular:
· to identify those accused of having committed a crime and other persons able to provide useful information on such crime. In this context, police may take fingerprints, pictures, details of height, weight etc, and even DNA. DNA samples, however, may be taken only with the consent of the person checked, or with the written authorization of the public prosecutor (Art. 349 CCP). In case of urgency, such authorization may be orally provided by the prosecutor, and confirmed in writings afterwards.
· where an individual is caught near a scene or is evading the police, officers may carry out a personal or local area search when they have good reason to believe that the person has hidden things or evidence pertinent to the crime that can be destroyed or disposed of (Art. 352(1) CCP).
· when a person is detained, officers may also carry out a personal or local search if the conditions indicated in the above bullet point are met and there are particular grounds of urgency that do not allow the issue of a timely search order (Art. 352(3) CCP).
· where there is a risk of absconding, before the before the Public Prosecutor takes over the investigation (Art. 384(2) CCP), or where the risk of absconding is such that it is not possible to wait for the warrant from the prosecutor (Art. 384(3) CCP).
In cases of search that leads to seizure, police shall transmit a report of the incident without delay, and in any case no later than forty-eight hours, to the local public prosecutor. If the conditions are met, the public prosecutor shall validate the search within 48 hours.
B) Within the administrative legal framework:
· stop and searches may also be performed by police in order to assess potential administrative violations (Art. 13, Law 24.11.1981, no 689).
· stop and searches may also be conducted to assess the possession of weapons or explosives (Art. 4, Law 22.05.1975, no 152).
· in cases of urgency, where it is not possible to wait for the intervention of the judicial authority, police may operate stops and searches in order to prevent or prosecute offences, such as drug trafficking (Art. 103, d.P.R. 9.10.1990, no 309), organized crime and money laundering, and illegal immigration (Art. 12(7), Legislative Decree 25.07.1998, no 286).
· stop and searches may also be performed by police in order to assess potential administrative violations (Art. 13, Law 24.11.1981, no 689).
· In all these cases, reports of the operations carried out shall be drafted and sent to the Prosecutor for validation. In order to use the results of such operations (e.g. seizure) at trial, validation should occur within 48 hours from the notification. (Art. 4, Law 22.05.1975, no 152).
IT_2.The obligation to register stops
IT_3.Legislation procedures which protect citizens from police offences
In the case of identity checks, police shall warn the person of the consequences of refusing to identify him/herself, and shall ask the person to declare his/her domicile for future notifications (Articles 66 and 349 CCP and Art. 21 disp.att. CCP).
Where the police search led to a seizure, according to Article 355 CCP, the police shall give a copy of the search report explaining the reason behind the seizure to the person from whom the object(s) was seized. Also the validation decree issued by the Prosecutor shall be immediately delivered to the same person.
The person against whom the search is carried out has the right to be assisted by a defence lawyer during the search if the latter is promptly available. There is not, however, a duty to notify the lawyer in advance, nor to wait for his/her arrival.
Against the validation decree, the accused, his/her lawyer, the person from whom the object(s) was seized and the person that owns or legitimately possesses what has been seized, have the right to submit an appeal (riesame – Art. 324 CCP) to the Tribunal specializing in the review of precautionary measures (Tribunale del riesame).
In case the police stop and search does not lead to seizure of any object, no remedy is provided for by the code to complain against such police acts. Specific remedies are instead provided for in case the person gets arrested following such police activity (information rights, by the assistance of a defence lawyer, judicial review, and compensation in case of unlawful arrest).
NM_1.The legislative powers of the police to stop individuals
Based on the Law on Criminal Procedure (Article 276), in order to investigate offences, to detain a suspect, and to secure and preserve evidence, the police may stop, identify and conduct any required examination of persons, vehicles and luggage, if there are reasons for suspicion. They may not be detained for more than 6 hours. The police may use reasonable force only as a last resort if it proves necessary to conduct the examination. The Law on Criminal Procedure (Article 21) defines some key terms, including:
Examination (“Pregled” or “Преглед” ) of persons, vehicles, luggage and facilities shall mean be limited to an external examination of the clothes, other items and luggage by using the sense of sight, hearing and smell, but excluding any actions that would make visible something that is not visible, by opening, unpacking etc.
Search (“Pretres” or “Претрес”) shall mean a detailed inspection and search of a person, transport vehicles or a home, according to conditions established by the law.
In addition, there are several articles dedicated to measures for locating and safeguarding persons and objects (Articles 181-204).
A search of a person may be conducted if it is likely to find traces or objects in their possession that are important to the criminal procedure. It should be authorised by a warrant, which can be issued following a verbal request. The search shall be conducted by a person of the same gender, unless that is not possible due to the circumstances. The circumstances due to which the search has been conducted by a person of another gender shall be written in the search records. A search that would include taking off parts of the clothing shall always be conducted by a person of the same gender. The search of the intimate parts of the body or body orifices shall always require an explicit approval by the court. The intimate searches shall be conducted by medical personnel.
It should be noted that provisions dedicated to the police authorization “Stop, inspection or search of persons, luggage and transport vehicles” are provided in the Law on Police, as well as in the Rule-book on the manner of conducting the police authorizations.
NM_2.The obligation to register stops
The records are defined by the Law on Police and Rulebook on the content and the manner of keeping records of the police and the form and the content of the template of the police records. An identity check will require the recording data, including the time and place of the check, the name of the person, their date and place of birth, identification number and current address. It will also note the legal reason for the check and the details of the police officer involved.
NM_3.Legislation procedures which protect citizens from police offences
The Law on Criminal Procedure (Article 276 Paragraph 4) stipulates that the public prosecutor has the right and duty to exercise control over the police with regard to identity checks.
Further, the person has a right to submit a complaint to the Sector of Internal Control (the website of the Ministry of Internal Affairs contains an application for reporting inappropriate behaviour of authorized officials, https://mvr.gov.mk/prijavete-nesoodvetno-postapuvanje). In essence, this is regulated by the Rulebook on the manner of officer conduct and professional standards.
Finally, police authorizations are overseen by the Macedonian Ombudsman (based on the Law on Ombudsman, Law on Ratification of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment).
NO_1.The legislative powers of the police to stop individuals
The grounds for a body search are detailed in Criminal Procedure §§157 and 195, and for a search for identity in Immigration Administration §37. Police Law §7a details the grounds for a search following an identity check and for weapons. The Director General of Public Prosecution (Riksadvokaten) has specified that grounds must be based on more than the person alone and must be tied to the time, place and context. The police chief should also ensure powers are used in relation to specific priorities and situations. In short, the use of the power to stop is frequently used by the police. For instance, stops can lead to searches and, in turn, lead to arrests. The stop of a person may also lead to searches in the police register.
NO_2.The obligation to register stops
NO_3.Legislation procedures which protect citizens from police offences
Internally in the police, there is a police complaint system (Politiets klageordning), the districts’ arrest supervision (politidistriktenes arresttilsyn), the central arrest supervision (det sentrale arresttilsyn) and the disciplinary system (displinærsystemet). Complaints concerning police behaviour that does not constitute a criminal offence will be handled internally by the police. Externally, there is the Norwegian Bureau for the Investigation of Police Affairs (Spesialenheten for politisaker). This Bureau investigates complaints where employees of the police or prosecuting authority are accused or suspected of a criminal offence. The special unit was set up by the Norwegian Ministry of Justice and the Parliament in 2005. On a basic level, the police officers have identity number on their uniform that the person can note and make a complaint about mistreatment. Body-worn video has not been introduced in Norway.
An evaluation of the complaints systems noted an average of 700-800 complaints each year since the system was set up in 2006. Complaints mainly (60%) concern the handling of the interaction, and particularly police behaviour and communication. An average of 13-24 complaints each year concerned discrimination, of which 80% concerned discrimination on grounds of ethnicity.
For more broader accountability and democratic control of the police, where the police are one of several actors involved in checks, there are numerous procedures. Three of the most relevant authorities are:
The Higher Prosecuting Authorities – The Director of Public Prosecutions and the Regional Public Prosecution Offices;
Ombudsman – appointed by the Norwegian Parliament to safeguard the rights of individual citizens in their dealings with public administration
the Equality and Anti-discrimination Ombudsman.
In addition, numerous NGOs and civil society organizations can be contacted.
PL_1.The legislative powers of the police to stop individuals
In Polish law, there is no distinction between stop and arrest. The term used is zatrzymanie. According to the Code of Criminal Procedure 1997 (CCP), a person may be arrested if they are suspected of offences and might abscond or if the act involves violence or firearms/weapons. Other provisions regulating Police powers to arrest (not for purpose of criminal proceedings) specify cases where someone has not returned to custody on a specified date, is a threat to the health of themselves or others or to property, or is drunk and either causing offence or posing a risk.
General powers to search a person are regulated broadly both in the CCP (Article 219-236) and in the Police Act (Article 15 para. 1 (4) and (5)). There is no direct provision that gives the police a power to search a person following an arrest. A search can be performed for the purposes of criminal proceedings (finding pieces of evidence) or for other purposes (e.g. preventive). The first one is regulated in CCP and is called przeszukanie and is conducted to find items that might constitute evidence in a case. Such searches can be conducted with a warrant issued by a prosecutor or without on the orders of a senior officer. However, the police must apply to the prosecutor for a decision that the search was legal.
The other types of search are regulated in the Police Act. These are:
Personal control (kontrola osobista) – search of a person (may involve stripping and body cavity search, if necessary) and personal belongings where there is a reasonable suspicion that a criminal offence has been committed and in order to find weapons, illegal items or evidence.
Checking of luggage and cargo in harbours, stations or on public transport (land, air and sea) where there is reasonable suspicion that a criminal offence has been committed and in order to find weapons, illegal items or evidence,
Preventive check (manually, by technical means of finding dangerous material and objects or those which possession is prohibited, biochemically or with the use of police dog) to prevent terrorism at designated places and events as well as public transport, or to seize items that might threaten the health of someone conducting an arrest.
PL_2.The obligation to register stops
In the case of arrests, a similar report should be made, specifying the grounds for the arrest. Any statements made by the arrestee must be included in the report. It should also indicate that the detained person has been informed about his or her rights. The report has to be signed by the detained person and copy of the report is given to him (Article 244 § 3 CCP). Also, any search must be documented in the report (Article 229 CCP).
Numerous legal acts and decisions regulate what kind of information can be recorded on databases and in what way. The most important is the Decision No. 165 of the Chief Police Officer of Poland (Komendant Główny Policji) of the 25 July 2017 on the functioning of the National System of Police Information (Krajowy System Informacji Policji) [KSIP Decision]. In the KSIP all arrests must be registered including, among others, information regarding who arrested a person and who registers the arrest in a database, how the identity of a person was determined, date and hour of arrest, who issued warrant of arrest or decided on the arrest, legal basis, grounds and place of arrest, place when a person was detained, data and hour of release (§ 20 para. 2 of the KSIP Decision).
PL_3.Legislation procedures which protect citizens from police offences
The rights of an individual in the case of search are also guaranteed by the mechanism of a judicial review regardless whether search has been conducted based on the prosecutor’s warrant of search or by the police without a warrant (Article 236 CCP). A person who has been unlawfully searched is also entitled on the basis of Civil Code provisions to seek compensation and redress from the State Treasury (in civil proceedings) if he or she can prove that he or she suffered damages or harm as a result of the search.
PT_1.The legislative powers of the police to stop individuals
In the that identification cannot be established, or in the event of flagrante delicto, the police officer should conduct the suspect to the nearest police station and oblige him/her to remain there for the time strictly necessary to undergo identification and screening of criminal record. In any case, the suspect may not be kept in the police station in order to be identified for more than 6 hours. Exceptions exist when, concerning certain crimes, the person must be presented to a judge for the application of preventive measures. The citizen has given the right to contact a person.
Traffic stops are both random (for control purposes) or organized (with due suspicion). Officers may check the necessary documentation required for driving (ID, drivers license, mandatory car insurance, etc.), perform both alcohol and drug tests and check that the vehicle complies with safety requirements. However, unless the citizen voluntarily allows it, the police cannot search the interior of the vehicle itself without a court order. Exceptionally, if there is sufficient suspicion of criminal activity or serious or violent disruption of public order, the police may search the vehicle without prior judicial authorization in order to verify the presence of weapons, explosive or pyrotechnic devices, objects prohibited or likely to enable acts of violence, evidence of crime, and persons sought or in an irregular situation in the national territory or deprived of their liberty. And if weapons, ammunition, explosives or prohibited substances and objects are found, they can be seized. In such situations, the search must, in any case, be reported to the competent court as soon as possible.
PT_2.The obligation to register stops
As for traffic stops, information is registered and data is made available monthly.
There is no possibility to access statistical information on stop and search in Portugal in any other shape other than the traffic stops.
PT_3.Legislation procedures which protect citizens from police offences
Complaints regarding the Criminal Police can be made electronically, in person, by phone or fax. The General Inspection of Justice Services (IGSJ) will inform the person who filed the complaint about the status of the case and, ultimately, the outcome of the case. As for complaints against PSP and GNR, the citizen ought to file a criminal law suit against the police officer/s in question. The type of procedure will depend on the nature of the crime. Such complaint may be filed in the police station and/or before a public attorney (MP). It is up to the MP and the instructing judge to conduct the investigation and decide if there are grounds for taking the claim to a criminal court. Where the police officer is “accused”, an internal investigation regarding the performance of his/her duties is conducted. The order of this event does sometimes vary as several cases of police abuse become public. Upon having been informed of the eventual abuse by a police officer, the Police Department itself ought to start an internal investigation. The police officer is suspended from their functions during any criminal proceeding.
RO_1.The legislative powers of the police to stop individuals
Article 31 gives police officers powers to check the identity of those believed to be causing or about to cause a breach of the law. Where identity cannot be established, the person can be ‘retained’ (not arrested) for up to 24 hours to establish identity. Force may be used if the person resists. Article 31(f) also allows officers to stop and search vehicles suspected of being involved in a criminal offence. Article 31 expressly obliges officers to have regard to the Human Rights of the persons concerned. Article 41 specifies that officers must present their ID/badge.
In addition, Government Decision no. 1391/2006 regarding the approval of the Rules applicable to Government Emergency Ordinance no 195/2002 regarding the traffic circulation on public roads. Article 182 specifies that vehicle stops should be used following a breach of traffic rules or when there is reasonable evidence that an offence has been committed and the stop is necessary to identify those involved or find items.
Section 2 of the Criminal Procedure Code then details the ways in which searches, pursuant to the powers above, are to be conducted. Article 165 specifies a search can be made of the exterior of a person’s body, oral cavity, nose, ears, hair, clothing and objects a person has with them or are under their control at the time of the search. Article 166 specifies that the person’s human rights must be respected. The person should first be asked to hand over the item being searched for and, if they do so, then no search should be conducted. A search should be conducted by someone of the same gender. A report must then be completed, detailing the persons involved, the time and place, items searched for, circumstances etc. Each page must be signed by the officer an the person searched and copy given to them. Article 167 then specifies that a vehicle search shall include the exterior and interior and be conducted in the same manner.
RO_2.The obligation to register stops
RO_3.Legislation procedures which protect citizens from police offences
SK_1.The legislative powers of the police to stop individuals
Another frequent case for stopping a person by the police is requesting proof of identity. Every citizen who has reached the age of 15 and has a permanent residence in the Slovak Republic is obliged to have an ID card. However, no one is obliged to keep their ID on their person at all times. The legal basis for a police officer’s right to request a person to prove their identity is in Section 18 of the Police Force Act. According to para. 1 of this provision, “a police officer shall be entitled to request a person to do so if it is necessary to fulfil their duties under this Act to prove their identity.” In police practice, however, that authorisation appears to be somewhat wider than it really is. Many police officers interpret this as per-mitting them to request a person prove their identity, but the most important phrase is “if necessary to perform the tasks under this law” that can be described as a material presumption of enforcement identity.
Exercise of a police officer’s authorisation under Section 18 of the Police Force Act is quite often in practice purely formalist, not respecting the material conditions of this provision, thereby abusing the authority of a public official. At the same time, a police officer’s formal approach to ex-ercising their authorisation is not exceptional in police practice. For most people, the obligation to prove their identity and the corresponding po-lice authorisation is perceived as a common, everyday matter in the activities of the Police Force, which does not restrict them in any way. Howev-er, from the point of view of law, it should be borne in mind that by exercising their authority to request a person to prove their identity, a police officer is interfering with that person’s fundamental rights and freedoms, i.e. it is an official intervention.
SK_2.The obligation to register stops
SK_3.Legislation procedures which protect citizens from police offences
Complaints against the members of Police Force are registered and handled by the Department of Control and Inspection Service (DCIS) of the Ministry of Interior. The DCIS is a separate unit of the Ministry reporting directly to the Minister of the Interior. Individuals can complain by email, phone, on-line or in person.
SL_1.The legislative powers of the police to stop individuals
Police officers may establish the identity of a person who:
– must be produced or detained;
– enters an area, place, premises, building or their environs where free movement is prohibited or restricted or stays there;
– is in an area, place or building where measures are being undertaken for searching or tracing the perpetrator of a criminal or minor offence or objects and traces relevant for a criminal or minor offence procedure;
– by his behaviour, actions and loitering at a particular location or at a particular time gives reason to suspect that he will commit, is committing or has committed a criminal or minor offence;
– is similar in appearance to a person sought;
– by his behaviour, actions and loitering at a particular location or at a particular time gives reason to suspect that he is a child or a minor fleeing from home or an educational and social care institution, rehabilitation centre or health institution or that he is lost;
– is clearly helpless and establishing his identity is necessary in order to provide assistance;
– could provide data useful for the performance of police tasks.
Police officers may carry out a procedure to establish the identity of a person and communicate his data upon the justified request of officials and public authorisation holders if this is indispensable to the exercise of powers by these officials or the provision of their safety.
Police officers may also carry out a procedure to establish the identity of a person upon the justified request of another person who is able to demonstrate that he has suffered material or non-material damage or physical injury, who suspects that a criminal or minor offence has been committed, and in similar cases, and communicate data thus established to a person entitled who is able to demonstrate a legal interest in exercising his rights before judicial or state bodies.
SL_2.The obligation to register stops
SL_3.Legislation procedures which protect citizens from police offences
ES_1.The legislative powers of the police to stop individuals
Police officers can carry out identity checks in public or private places by any means available (i.e. by searching electronic databases, by making phone calls, etc.). If the identification is not feasible, officers can forcefully bring the individual to the closest police unit, to carry out the identity check there. According to the Spanish legislation, this police intervention, which cannot be extended more than 6 hours, is not considered as an arrest. Resisting this police intervention is a criminal offence. By contrast, not collaborating with an identity check is an administrative offence (Article 36.6 LOPSC). Police officers should abide by the principles of proportionality and of equal treatment before the law.
Police officers may stop and search individuals in order to the unlawful carrying and use of weapons. Body searches can only be carried out when police officers may have motives to suspect that instruments and objects that are relevant for urban security prevention purposes are being carried by the searched individual. These interventions should only be as intrusive as necessary and minimise the harm to the dignity of the searched individual. They should be performed by a police officer of the same sex and, if needed for privacy motives, should be carried out in a place out of sight of other people.
Individuals are legally obliged to collaborate with the interventions carried out by police officers. They can be forcefully carried out against the will of the searched individual, in accordance with the legal principles of necessity, suitability and proportionally.
ES_2.The obligation to register stops
A number of local police corps, which have taken part in the Programme for Effective Police Identity Checks (PIPE for their initials in Spanish), have decided to register all stop and check and stop and search interventions. Officers should register the measures taken to check the identity of the stopped individual, as well as the motives, circumstances and duration of these measures (Article 16.4 LOPSC). In addition, the checked individual should be given a ticket containing information on the duration and causes of the intervention, and on the identity of the intervening police officers (Article 16.5 LOPSC). This is in response to criticism of the use of racial profiling by the police in efforts to police immigration offences.
ES_3.Legislation procedures which protect citizens from police offences
Individuals affected by stop and check and stop and search police interventions can only report these facts to the Spanish Ombudsperson, who should monitor the activities carried out by public bodies to safeguard individual rights and freedoms. The affected individuals can also report these facts to the police, either to the same police corps that carried out the given intervention or to a different one. Some police corps (e.g. the local police of Madrid) have set up specific police services to collect these complaints, but this is still highly uncommon. Some NGOs and human rights groups collect complaints on biased police interventions and launch public campaigns on this topic. In this regard, the NGO SOS Racismo (SOS Racism) and Rights International Spain should be specifically mentioned.
UK_1.ENGLAND & WALES
Officers can stop and search someone suspected of possession of drugs, weapons, stolen property or equipment associated with crime. They must have reasonable grounds for suspicion (seen something, intelligence received, behaviour etc.) and characteristics such as ethnicity, gender or age cannot be used as the basis for a stop and search. Officers must give the person searched key information (officer name/ID, grounds, rights etc.) and either a record of the search or a reference number so they can get access the record later. Stops should be recorded on body worn camera (BWC). Controversies include the disproportionate rate of stop searches for Black and Asian people, and whether the smell of cannabis alone constitutes sufficient grounds.
Section 60 Criminal Justice & Public Order Act 1994 allows for stop and search to be conducted for weapons or dangerous instruments in a specified area for a limited period of time (no more than 24 hours) without the need for grounds. This power is only authorised where a senior officer reasonably believes serious violence may occur.
Officers have no right to stop and question a citizen to check their identity, although an officer may stop any vehicle in order to check relevant documents (driving licence, insurance etc.) and the condition of the vehicle.
Powers allow officers to conduct a non-intimate search, removing only outer garments, at the scene. A more intimate search should be conducted at a police station.
Information from stop searches are retained by the police (age, gender, ethnicity, grounds, results) and scrutinised internally, locally by committees, community panels or advisory groups, and nationally by HMICFS and the Home Office. Anonymised data is published on the data.police.uk/data/ website and on local police force websites, for example here. BWC footage is sometimes made available for internal and external scrutiny. Complaints can be made to the police force concerned and will normally be resolved locally. Where evidence recovered during a search is used in a criminal case, the legality of the search may be subject to scrutiny as part of the case.
A Code of Practice governs the police officer’s use of powers of stop and search of the person. This includes most situations in which officers stop and search a person without first making an arrest. The code sets specific expectations, including the way in which the search is carried out, how the individual is treated, their right to information and how this is recorded. All recordable stop and searches in Scotland are recorded on the Police Scotland National Stop and Search Database. Any person who has been the subject of a recordable stop and search, can request access to a copy of the record held on the database.
Police Officers are not exempt from the law in Scotland and are bound by the Police Scotland Code of Ethics and the provisions of the Human Rights Act and the European Convention of Human Rights. An independent body, the Police Investigations and Review Commissioner (PIRC) issued statutory guidance to set the requirements of police complaint handling in Scotland. This is embedded in Police Scotland’s approach, with the process subject to ongoing scrutiny by PIRC. Any member of the public can make a complaint about the police either in person, by telephone, in writing by email, letter or through an online form accessed through the Police Scotland website. Complaints against police officers and staff which are upheld can be disposed of through formal disciplinary action and, where the behaviour is criminal, through reporting to Crown Office and Procurator Fiscal service for appropriate action. Every officer who carries out a relevant search of a person under the code of practice is required to provide a receipt to the person which includes information about their rights and how to make a complaint. This information is also available on the Police Scotland web site.
PSNI broadly follow UK policing standards from the College of Policing for conducting stop and search in terms of the need to provide grounds etc. for ‘everyday’ stop and search. Stops are meant to be recorded, with a receipt or reference number provided to the suspect. Body-worn cameras are gradually being rolled out by PSNI for officers, although the extent to which they are used for stop and search encounters is unclear. PSNI is subject to performance monitoring by the Northern Ireland Policing Board (NIPB), while complaints about police actions are dealt with by the independent Office of the Police Ombudsman for Northern Ireland (OPONI).
PSNI performance also comes under the scrutiny of the Criminal Justice Inspection NI (CJINI). It can also request inspections from HMIC, although it is not obliged to. Only limited public data on stop and search is released by PSNI, currently restricted to policing district, gender, age and the power used. Age-related data has only been publicly available since 2017. Religion is not recorded, and ethnicity may be recorded, but is not publicly available.