论警察使用武力的正当性——以欧洲人权法院博伊德诉比利时案为参照

On the Legitimacy of Using Force by the Police——Reference to the Case of Bouyid v.Belgium of ECHR

博伊德诉比利时案是欧洲人权法院于2016年收录的典型判例。申诉人在接受讯问时被警察掌掴,后来欧洲人权法院判决比利时政府违反了《欧洲保障人权和根本自由公约》第3条。该案最终判决起初略带争议,但这一判例还是对后续判例产生了积极的影响。欧洲人权法院在审理警察使用武力案件时主要关注:警察使用武力的必要性,人格尊严受损的最低严重程度,警察正当使用武力的证明责任,以及国内救济程序是否及时有效。该案对我国同样具有借鉴意义:必要且有限度是警察使用武力的前提,保障人格尊严是警察使用武力的底线,明确证明责任和完善救济程序有助于促使警察正当使用武力,当然,被追诉人的不当行为也应予以惩戒。

In the Case of Bouyid v. Belgium of ECHR, the complainants were slapped in the police questioning. Finally, the grand chamber holds that there has been a violation of Article 3 of the Convention under its substantive head by fourteen votes to three, and there has been a violation of Article 3 of the Convention under its procedural head unanimously. The final decision was slightly disputed at the beginning, but the case had a positive impact on the subsequent precedents. The ECHR is mainly concerned about the following points when hearing the case of police using force ： the necessity of the use of force by the police ; the minimum severity of the damage to personal dignity;the burden of proof for the proper use of force by the police;and whether domestic relief procedures are timely and effective. The case is also of reference to our country：necessary and Limited is the precondition of the use of force by the police;the protection of human dignity is the bottom line of the use of force by the police;the burden of proof and the improvement of relief procedures help to make the police use force properly. And of course, the wrongdoing of the accused should also be punished.