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

The court has identified a framework for determining when a distinction or differenceof treatment amounts to discrimination:[T]he principle of equality of treatment is violated if the distinction has no objectiveand reasonable justification. The existence of such a justification must beassessed in relation to the aim and effects of the measure under consideration,regard being had to the principles which normally prevail in democratic societies.A difference of treatment in the exercise of a right laid down in the Conventionmust not only pursue a legitimate aim: Article 14 is likewise violated when itis clearly established that there is no reasonable relationship of proportionalitybetween the means employed and the aim sought to be realised. 255Applying this test to ethnic profiling in law enforcement, it is clear that the distinctionsemployed by officers in their law enforcement activities pursue a “legitimateaim.” But law enforcement actions must not only pursue legitimate aims, their use ofdistinctions based on ethnicity and similar criteria must also be both pertinent andeffective. 256 This requires “a ‘reasonable relationship of proportionality between themeans employed and the aim sought to be realized’.” 257 Thus even if a measure pursuesa legitimate aim such as protecting the public against a terrorist act, any incidentalinfringement on protected rights must be necessary and proportionate to the aim. TheEuropean Court of Human Rights has found a distinction to be unnecessary where thesame result could be achieved through an alternative approach that does not rely ondifferentiation. 258To summarize, European case law requires that ethnic profiling practices passscrutiny under three principal tests if they are to establish a legitimate difference oftreatment that does not constitute discrimination:• Effectiveness: ethnic profiling practices may be considered effective if they arebased on an objective statistical link between the ethnic criteria employed and theprobability that persons captured by the profile committed or planned to committhe offense in question. A high probability of offending—that is, beyond a generalstatistical link—is essential for ethnic profiling to be demonstrably effective as ameans of law enforcement.• Proportionality: It must be shown that the benefits derived from using ethniccriteria in terms of increasing law enforcement efficiency outweigh the harmdone through the real or perceived discriminatory impacts of the profile on thetargeted individuals or groups.REDUCING ETHNIC PROFILING IN THE EUROPEAN UNION 193