Waarborg tegen willekeur? De rechtsstatelijkheid van het voorstel om politiestudenten zonder korpsaanstelling executieve bevoegdheden toe te delen

Davis, Koen (2010) Waarborg tegen willekeur? De rechtsstatelijkheid van het voorstel om politiestudenten zonder korpsaanstelling executieve bevoegdheden toe te delen.

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Abstract:Dutch police students perform regular police tasks during their training. To this end, police students are provided with the same powers as regular police officers. Both police students and regular police officers attain their powers with an appointment in civil service. Due to policy considerations, however, police students may lose their civil service status in the future. This implicates that police powers will need to be assigned to non-civil servants. This study examines whether the proposal to assign police powers to police students without civil service status is justifiable in terms of the notion of the rule of law.1 All state powers are bound by the provisions of legislation in which this notion is formalised. These provisions guarantee that state powers are exercised according to rule of law principles. The right to physical integrity is assured in article 11 of the Dutch constitution. As this right may be limited, the extent of this provision is determined by the legislator. Therefore, additional guarantees are obtained from legislation on police powers, powers of special criminal investigators, powers of civilians and powers of non-governmental individuals with public tasks. From this exploration, two categories of provisions are extracted: material requirements and formal guarantees. The material requirements constitute the meaning of rule of law principles in terms of powers that intervene with the right to physical integrity. Three material requirements are distinguished: proportionality, subsidiarity and lawfulness. The formal guarantees limit the possibility to encroach on the material requirements. These guarantees are subdivided into two categories. The first category contains guarantees aimed at limiting the assignment of powers as far as possible. The second category contains guarantees aimed at the capability and the will of those with powers to exercise their powers within the scope of their powers. In conclusion, the exercise of powers in accordance with rule of law principles (proportional, subsidiary and lawful) is guaranteed when the assignment of powers is limited as far as possible and those with powers have the capability and the will to exercise their powers within the scope of their powers. The second part of this study consists of a theoretical exploration on the conditions stipulated for the right to use violence. According to Thomas Hobbes this right should belong to a sovereign and is derived from an agreement between this sovereign and his subjects. The right to use violence therefore, is based on a commitment to a particular outcome. Hence, effectiveness of the right to use violence is the first condition. The necessity of self-restraint by the subjects implies that the agreement is only made when the exercise is considered effective. The subjects have to have a reasonable expectation that the agreement will lead to peace. According to Max Weber the right to use violence is part of the state’s monopoly on violence. The state’s subjects therefore, need to be willing to refrain from using violence themselves and 1 The notion of the rule of law was developed as a counterpart to the risk and consequences of the arbitrary exercise of state powers. ix need to assign the right to use violence to the state. Voluntary acceptance of state authority therefore is paramount. Legitimacy – on the basis of tradition, charisma, or legality – is key. Weber requires of those who have the right to use violence to be obedient to the authorities, to judge objectively, and to act responsibly. In conclusion, the material requirements stated by Hobbes and Weber may be summarised as effectiveness and acceptability. These requirements are supplemental to the material requirements distinguished earlier. The proposal to assign police powers to police students without civil service status is linked to the above in the third part of the study. Both the material requirement of acceptability and the material requirement of effectiveness prove to be uncertain in consequence of the proposal. The material requirements of proportionality, subsidiarity and lawfulness are studied from a formal perspective. Firstly, the requirements for appointment are studied. A number of requirements prove to offer complementary guarantees for these material requirements. These guarantees are no longer applicable as a consequence of the proposal. Secondly, the degree to which the guarantees distinguished above depend on appointment is studied. A number of guarantees prove to be dependent on appointment. As a number of requirements for appointment and formal guarantees lose application as a result of the proposal, the room for maneuver for police students to exercise their powers is no longer limited sufficiently. The proportional, subsidiary and lawful exercise of powers therefore, is not guaranteed. On top of this, the effectiveness and acceptability of the powers cannot be guaranteed. All in all, in accordance with the proposal, students cannot be expected to exercise the powers assigned to them according to rule of law principles. This implicates that the proposal cannot be justified in terms of the notion of the rule of law. In order to be able to justify the proposal, a number of conditions are formulated. In order to meet these conditions, the proposal has to include a legal relation between the student and the police organisation. Furthermore, the proposal has to assign powers to police students and has to be acceptable for the subjects (i.e. civilians). Three legal designs are studied: the special criminal investigator design, the contract design and the volunteer design. Primarily the contract design and the volunteer design transpire to include a legal relation between the student and the police. The special criminal investigator design and the volunteer design prove to be appropriate to assign powers. The volunteer design appears to be the only design acceptable for civilians. In conclusion, the volunteer design transpires to be the most suitable design in terms of the notion of the rule of law. With the volunteer design, the exercise of powers by police students without civil service status in accordance with rule of law principles may be guaranteed.
Item Type:Essay (Master)
Clients:
Ministerie van Binnenlandse Zaken en Koninkrijksrelaties/Directoraat-generaal Veiligheid
Faculty:BMS: Behavioural, Management and Social Sciences
Subject:88 social and public administration
Programme:Public Administration MSc (60020)
Link to this item:http://purl.utwente.nl/essays/60412
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