Reducing Ethnic Profiling in the European Union - Open Society ...

Covenant rights that are especially relevant to ethnic profiling include “the rightto liberty and security of the person,” which includes freedom from “arbitrary arrestor detention” (Article 9(1)) and the right to “be equal before the courts and tribunals”(Article 14(1)).Article 1 of the International Convention on the Elimination of All Forms ofRacial Discrimination, 250 (“Race Convention”), provides: “In this Convention, the term‘racial discrimination’ shall mean any distinction, exclusion, restriction or preferencebased on race, colour, descent, or national or ethnic origin which has the purpose oreffect of nullifying or impairing the recognition, enjoyment or exercise, on an equalfooting, of human rights and fundamental freedoms in the political, economic, social,cultural or any other field of public life.” The Race Convention requires States partiesto ensure non-discrimination in the enjoyment of enumerated rights, including twothat are often implicated by the police practices addressed in this report: “freedom ofmovement” (Article 5(d)(i)) and the “right to equal treatment before the tribunals andall other organs administering justice” (Article 5(a))EU Regional Standards and Case LawTurning to European norms, Article 14 of the European Convention on Human Rights(ECHR) prohibits discrimination in the enjoyment of rights protected by the convention.251 ECHR rights that are particularly relevant to the practices addressed in thisreport include the rights to liberty and security of the person (Article 5(1)) and fair trialrights associated with “the determination of [an individual’s] civil rights” and of “anycriminal charge against him” (Article 6(1)). Ethnic profiling in its various forms alsotouches upon individuals’ right to respect for their privacy, family life, correspondenceand home (Article 8); freedom of religion (Article 9) and assembly (Article 11); andfreedom of movement (Article 2, Protocol No. 4).Protocol No. 12 broadens the European Convention’s protections against discriminationby, among other things, prohibiting discrimination on any ground in respect ofany right set forth in national law “by any public authority” (Article 1). 252 The ExplanatoryReport to Protocol No. 12 makes clear that this prohibition applies to discrimination “bya public authority in the exercise of discretionary power,” 253 which would include identitychecks, stops and searches, and surveillance activities by law enforcement officers.While the legal norm against discrimination is universal and fundamental, notall distinctions or differences in treatment by public authorities, including law-enforcementpersonnel, constitute discrimination. The European Court of Human Rights hasruled that: “A differential treatment of persons in relevant, similar situations, withoutan objective and reasonable justification, constitutes discrimination.” 254192 APPENDIX B: LEGAL STANDARDS AND CASE LAW