CITIZEN SECURITY AND HUMAN RIGHTS

 

VII.     Recommendations

 

232.          In exercise of its authority, the Commission has the following recommendations for the member states, based on the text of this report:

 

A.        General recommendations

 

1.       Discharge their international obligations to protect and ensure the human rights at stake in citizen security by designing and implementing comprehensive public policies involving simultaneous performance of specific measures and strategic plans at the operational, normative, and preventive levels.  These policies must be sustainable, which will necessitate the required political and social consensuses.  At the same time, evaluation and accountability systems will have to be in place to check these policies in a context of broader citizen participation.

 

2.       Generate the institutional capacity within the public sector to carry out the measures included in the plans and programs associated with public policy on citizen security, while making available adequate human, technical, and economic resources.  This means, inter alia, improving the process for selecting and training the personnel of the institutions involved in implementing the policy on citizen security (especially the police, the members of the judicial branch, the staff of the public prosecutorís office and those of the prison system) and earmarking the material resources needed to provide the public with quality service.

 

3.       Adapt the domestic laws and State apparatus to ensure democratic governance of citizen security.  The legitimate political authorities of the State will have to shoulder their responsibility for designing, executing and monitoring public policy on citizen security, with the support of multidisciplinary technical teams.

 

4.       Put into practice accountability systems and procedures that apply to all those authorities who have some role in the policy on citizen security.  The procedures will use internal and external control mechanisms, thereby strengthening the institutions of democratic government, fostering transparency in the exercise of public office, and implementing measures to deal with impunity and corruption.

 

5.       Ensure the special standards of protection needed for those persons or groups that are particularly vulnerable to violence and crime, such as children and adolescents, women, the indigenous population, Afro-descendents, migrants and their families, notwithstanding the obligations that the member states have undertaken to protect and ensure the human rights at stake in the policy on citizen security to all persons subject to their jurisdiction.

 

B.        Specific recommendations

 

6.       Take the administrative, legislative or other measures necessary for the apparatus of the State to be able to offer rapid and proper care to victims of violence and crime.  This involves, inter alia, the following:

 

(a)              Incorporate into its domestic laws the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, clearly defining what persons fall into that category, especially the immediate victim, his or her next of kin, loved ones and third persons who have intervened to assist the victim in danger or to prevent victimization;

(b)              In order to combat impunity, adapt the domestic laws, administrative regulations, procedures and plans of operation of the institutions with jurisdiction over the policy of citizen security, to ensure that they are able to prevent, investigate and punish any human rights violation resulting from acts of violence or crime, or from the action or omission of State agents;

(c)              In keeping with international standards, adopt all measures necessary to restore to the victim, to the extent possible, all rights that were violated as a consequence of acts of violence or crime;

(d)              Provide permanent training and instruction to those civil servants who have some immediate responsibility in the procedures for treating victims of violence and crime, especially those who are most vulnerable;

(e)              Design and implement procedural protocols to be followed by all institutions involved in the treatment and care of victims of crime and violence, to ensure proper treatment and to avoid their re-victimization;

(f)                Coordinate interventions conducted by government institutions at the national or local level with civil society organizations that specialize in the area, and enlist their cooperation;

(g)              Provide the proper infrastructure and equipment to care for persons who have been victims of crime or violence;

(h)              Establish the legal provisions that will enable victims to participate in all phases of judicial and administrative proceedings;

(i)                 Provide full compensation to victims of violence and crime when the State bears some responsibility for the damages or harm caused by virtue of its failure to comply with its positive and negative obligations to protect and ensure human rights.

 

7.       Ensure that the police force conducts all operational activities necessary to prevent, deter and lawfully suppress acts of violence or crime, as part of the Stateís obligation to protect and ensure the human rights directly at stake in the policy of citizen security.  This involves the following:

 

(a)              Regulating the activities of private security firms and establishing the boundaries within which they must operate;

(b)              Establishing a public record to provide adequate information on the owners of firms of this type; their employees; the weaponry they carry and the service contracts currently in force;

(c)              Requiring that employees of these private security firms be certified by the competent state agencies to show that they are qualified for their employment and that they have, inter alia, the physical and psychological aptitude and training (especially in the use of firearms) necessary to perform these types of tasks. 

 

8.       Strengthen the ability of the legitimate political authorities to oversee the design, implementation and evaluation of the public policy on citizen security.  In this regard:

 

(a)              Consider passage of laws establishing the structure and operation of the citizen security system, with the necessary division of policy-related, technical and administrative responsibilities;

(b)              Adapt the framework of state institutions to ensure democratic governance of the citizen security system;

(c)              Earmark the human and material resources needed by the multidisciplinary technical teams that will produce the information that government and administrative officials require to make decisions;

(d)              Establish independent mechanisms to control and supervise the functioning of the institutions in the citizen security system;

(e)              Strengthen the technical capacity of the legislatures to evaluate and exercise political oversight of public policy on citizen security.

 

9.       Implement plans to modernize and professionalize the police force.  In this respect:

 

(a)              Adjust the institutional philosophy to conform to international human rights standards and principles as they relate to citizen security;

(b)              Adopt objective procedures for recruiting and selecting those individuals who will become members of the police force, based on open competition and by making the advance training more rigorous;

(c)              Establish procedures for attracting quality candidates for law enforcement, both at the entry level and for promotions and postings.  Conduct permanent refresher training courses for officers already on the police force;

(d)              Ensure a proper police career service by establishing a framework of clear and precise rules and regulations, and include administrative due process at all stages of the career service.  The police career service should take particular care to avoid any type of discrimination against women police officers and to create the conditions to make the institution representative of the countryís social and cultural reality.  Clearly spell out the labor rights and regulate the scope of police officersí right to form and join unions;

(e)              Determine where the police are to be deployed and what their functions are to be, to make law enforcement a proactive service accessible to all sectors of the population;

(f)                Train police personnel in how to deal effectively and efficiently with persons from the most vulnerable sectors of society (including children and adolescents, women, indigenous people, Afro-descendents and migrants);

(g)              Develop skills in police intelligence work (with a legal framework that conforms to international standards on human rights; trained personnel; and equipment and infrastructure) to assist in preventing violence and crime, especially in the case of organized or complex crime;

(h)              Adopt laws to regulate police procedure, to define and publicize the authorities the police force has and the limits beyond which it cannot go; approve and put into practice police codes of ethics that conform to the general framework of the United Nations Code of Conduct for Law Enforcement Officials.  Regulate disciplinary proceedings and establish independent systems for internal and external oversight of police performance;

(i)                 Outfit the police with the equipment, means of lethal and nonlethal force and the infrastructure they need to perform their service functions effectively and efficiently.

 

10.     In the domestic legal system, draw a clear distinction between national defense as the function of the armed forces, and citizen security as a function of the police.  Make it very clear that because of the nature of the situations they must deal with, the instruction and specialized training they receive, and the regionís unfortunate history of military intervention into internal security affairs, the police have sole responsible for the functions associated with prevention, deterrence and lawful suppression of violence, under the oversight of the legitimate authorities of a democratic government.

11.     Adopt effective measures to guard against interventions by State agents and actions by private parties that threaten the right to life.  This means designing and putting into practice plans and programs in social, community and situational prevention, designed to address those factors that enable violent behavior to breed and multiply within society, especially:

 

(a)              prevention of domestic violence;

(b)              specific violence-prevention programs that target adolescents and young people;

(c)              control and reduce the number of firearms in private hands;

(d)              violence treatment programs in academic institutions, which includes instruction in the peaceful resolution of differences;

(e)              measures to prevent violence at sporting events;

(f)                awareness and information programs that include media campaigns aimed at preventing interpersonal and social violence;

(g)              plans for training and specialized instruction for law enforcement personnel in the use of nonviolent means of preventing, deterring and suppressing criminal acts.

 

12.     Generate the abilities of state institutions to identify and punish the perpetrators of crimes that violate the right to life.  This requires, inter alia:

 

(a)              upgrading the human, technical and infrastructure resources of the police and the public prosecutorís office to equip them with the skills they need to conduct a proper criminal investigation in cases of crimes that violate the right to life;

(b)              adapting police procedures so that agents of the State or private persons who violate the right to life do not go unpunished;

(c)              incorporating into the domestic laws the United Nations ďPrinciples on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions.Ē

 

13.     As for the use of lethal force by agents of the State:

 

(a)              train police officers in how to use lethal force in a manner that is consistent with international standards, especially the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials;

(b)              by law, in both the formal and material sense, regulate police procedures that involve the legitimate use of lethal force, stipulating that recourse to such an extreme is a last resort that must be informed by the principles of necessity, graduality, and reasonableness;

(c)              outfit the police with the equipment and weapons they need to allow them to use nonlethal methods of coercion as the preferred method in police operations;

(d)              establish independent internal and external control systems to give effect to the Stateís obligation to investigate any cases in which law enforcement uses lethal means and methods.

 

14.     Concerning respect for the right to the integrity of oneís person:

 

(a)              take measures, both within the private realm and with respect to interventions of State agents, to prevent and control violence, especially in the case of those persons who are particularly vulnerable to threats to their personal security, such as children, adolescents and women;

(b)              take the legislative and institutional measures to prevent and punish torture and other cruel, inhuman and degrading treatment or punishment inflicted by agents of the State.  In this regard:

 

i)                    In the domestic legal system, criminalize torture and other cruel, inhuman or degrading punishment;

ii)                  Ensure that the domestic laws make clear that due obedience cannot be invoked to exonerate the perpetrators, accomplices or accessories after the fact in cases of torture or cruel, inhuman or degrading treatment;

iii)                 Create the internal and external systems and procedures that will allow for an independent investigation of facts that may constitute torture or cruel, inhuman or degrading treatment or punishment;

iv)                Require, by law, that the authorities of the State act ex officio in cases of possible torture or cruel, inhuman or degrading treatment;

v)                 Train and instruct members of law enforcement in the techniques of criminal investigation and lawful means of gathering evidence, in keeping with the framework established pursuant to the international obligations undertaken by the State to protect and ensure human rights;

vi)                Make condemnation of torture and other forms of cruel, inhuman or degrading treatment part of the law enforcement philosophy, and require every member of the police force to report any act of this nature that comes to his or her attention.

 

(c)              equip and train police officers in the use of nonlethal methods for interventions, the use of lawful physical coercion, within the boundaries of the internationally accepted principles and standards on this subject.

 

15.     As for the guarantees of the right to personal liberty and security:              

 

(a)              adopt the normative and operational measures to prevent, investigate and punish threats made against the right to personal liberty and security by private parties;

(b)              properly train and equip security forces for their interventions in cases in which the acts of private parties affect the right to personal liberty and security;

(c)              assist the situation of children, adolescents, women, indigenous persons, Afro-descendents, migrants and families who are victims of human trafficking or the slave trade.  Make the United Nations Principles and Guidelines on Human Rights and Trafficking part of their domestic laws;

(d)              adapt the domestic legal system and institutional procedures and practices so that they are able to prevent and, where necessary, investigate and punish cases of arbitrary detentions by agents of the State.  This involves the following:

 

i)                    stipulating that no person shall be deprived of his or her liberty except under the circumstances that the law specifically prescribes;

ii)                  guaranteeing that persons in the custody of State authorities will receive decent treatment;

iii)                 incorporating into its domestic laws the obligation of State agents to immediately inform the person detained of the reasons for his or her detention;

iv)                immediately reporting the detention to the competent judge for a determination of the detained personís rights;

v)                 informing the detained personís next of kin and loved ones of his or her whereabouts and the reasons for the detention;

vi)                guaranteeing the detained person the services of legal counsel from the moment of his or her arrest; and

vii)              organizing a public record of persons taken into custody.

 

(e)              Put into practice systems that ensure that minors under the age of eighteen will receive special protection from unlawful detention: basically, the competent judge and the parents or guardian are to be notified immediately and a medical examination is to be conducted to certify to his or her health at the time of the detention;

(f)                Take into account the direct impact of these guarantees on the policy of citizen security, with respect to persons held in custody in prison facilities by order of a judge; incorporate into the stateís domestic laws and put into practice the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, adopted by the IACHR, and the United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

 

16.      A citizen security policy must be implemented in such a way that the right to due process and the right to judicial protection are observed.  Member States must be especially mindful of their obligations to:

 

(a)              Respect the internationally accepted basic principles of criminal law:  presumption of innocence, nullum crimen sine lege, nulla poena sine lege, and non bis in idem;

(b)              Limit preventive detention, as a precautionary measure, to the minimum period of time possible, based on the principles of necessity and reasonableness;

(c)              Give the regular courts exclusive competence to prosecute criminal violations, preventing the creation of ad hoc or special judges or courts;

(d)              Ensure the independence of the courts so that they may observe the judicial guarantees and the right to a fair trial, by instituting tenure on the bench and requiring that judges and magistrates be professionally qualified;

(e)              Provide the human and material resources necessary for proper administration of justice, so that victims of crime and acts of violence are assured the protection of the court.

(f)                Implement the mechanisms necessary to prevent, investigate and punish any form of corruption that prevents the system of administration of justice from functioning correctly.

 

17.      Establish the legislative measures and administrative procedures that will ensure everyoneís right to privacy and the protection of their honor and dignity.  This involves:

 

(a)              Regulating, by law, the occasion and boundaries of police-conducted bodily searches;.

(b)              Likewise, establishing transparent procedural protocols to be followed when searching objects or vehicles as part of police procedures;

(c)              Putting into practice the technology necessary to conduct non-invasive searches of persons and property, whenever possible;

(d)              Updating the laws to allow for interception of private communications, in a manner that is consistent with international standards and with a court order;

(e)              Incorporating into the constitution and higher law, the guarantees of the inviolability of the home, and detailing any limitations or restrictions thereto;

(f)                Clearly specifying the exceptional circumstances under which a domicile can be entered without a court order, exclusively in cases of extreme need and only to put a stop to some imminent threat to the right to life or the right to personal integrity of those inside said domicile. 

 

18.      Public policy on citizen security should make provision for specific aspects of the right to freedom of expression, the following in particular:

 

(a)              produce, organize and disclose quality information that enables a democratic citizenry to monitor policies on citizen security.  This is particularly relevant to:

 

i)                    the operation of systems that gather and analyze information;

ii)                  preparation of qualitative and quantitative indicators on: the rates and types of acts of violence and crime; the budget assigned to the sector and how effectively it is used; surveys on victimization; dissemination of successes in social and community prevention of violence and crime, and other topics.

 

(b)              generate and report objective information on the situation of the most vulnerable groups in the population and how they are affected by violence and crime (children and adolescents, women, the indigenous population, Afro-descendents, migrants and their families);

(c)              enable access to all information in the Stateís possession on matters related to citizen security, with the exception of those topics that must be kept confidential to ensure that specific measures taken to prevent or control violence and crime are effective.  Ensure a rapid and simple recourse to the competent court to determine whether the confidential classification of a specific piece of information is warranted;

(d)              promote the operation of institutions monitoring violence and crime at the national and regional levels, to complement the measures taken by public institutions and civil society organizations to generate, analyze and circulate quality information on  citizen security;

(e)              include the remedy of habeas data in domestic law, to guarantee: 

 

i)                    Every personís right to privacy;

ii)                   Every personís right to obtain his or her information in government databases;

iii)                 Every personís right to use this action as a means to monitor the performance of public authorities.

 

19.      As for the Stateís obligations vis-ŗ-vis the rights of assembly and association:

 

(a)              within its domestic laws, spell out any limitations or restrictions on the exercise of these rights.  Any such restriction or limitation must be objective, i.e., it must weigh the personal liberty against the general welfare in a democratic society; it is not to disregard or alter the recognition of these rights, and must be ordered on the basis of the principles of legality, necessity and proportionality;

(b)              establish the procedures that the law enforcement officers must follow to ensure the exercise of the right to assemble for peaceful purposes, through measures such as: control of pedestrian and vehicular traffic; planning the avenues for dispersal or evacuation of the public areas where the mass gathering or demonstration is taking place; and implement security measures that prevent any person or group from interfering in the public activities through which this right is being exercised;

(c)              continually train police to prepare them for operations whose purpose is to guarantee the exercise of the right of assembly.  Accordingly, train and adequately equip the police to intervene in those mass gatherings or demonstrations that turn violent and where the rights of third parties are being affected.  The police are to use nonviolent methods to settle disputes and, if absolutely necessary, may resort to nonlethal physical methods of coercion, adhering to the internationally recognized principles and standards;

(d)              Limit the imposition of criminal sanctions incurred in the course of exercising the right of assembly strictly to those cases in which it is shown that the rights of third parties were violated by recourse to violence.  If criminal sanctions are imposed, it must be out of the need to protect these rights and the general welfare in a democratic society;

(e)              Guarantee police officersí right of association and their right to form and join unions.  In keeping with international standards and as dictated by the needs of a democratic society and to ensure fulfillment of the Stateís obligations to protect and ensure the human rights at stake in the area of citizen security, the law may establish limitations on the exercise of the right to strike and other ways in which the right of assembly is exercised by police personnel.

 

20.      Create the conditions to enable the public to participate in matters related to citizen security, as a means of strengthening democracy, improving the quality of the services related to the citizen security policy, and to develop systems to control and oversee the performance of public authorities.  However, when involving the public in matters related to citizen security, the following guidelines must be followed:

 

(a)              The State must have a monopoly on the use of legitimate force.  The domestic legal system must adopt measures to investigate and punish any type of organization whose objective is to engage in private, vigilante justice;

(b)              The publicís involvement is to be centered on activities in social, community and situational prevention of violence and crime;

(c)              Any type of organization must be independent of the State authorities or partisan political sectors;

(d)              Areas for proper coordination with the types of organizations that already exist within society must be created; the design of violence and crime prevention plans and development of accountability systems must be encouraged;

(e)              Local or municipal governments must be encouraged to take responsibility for managing citizen security at the local level.

 

21.      Design and implement crime and violence prevention plans that help ensure that all persons subject to their jurisdiction have the right the peaceful enjoyment of their possessions.  Apart from the general measures taken to achieve this objective, the States should pay special attention to those whose social or economic situation is such that they require special measures of protection.

 

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