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

• Necessity: The use of ethnic profiling is unnecessary if the same results achievedin terms of law enforcement could have been achieved through an alternative andnon-differentiating approach.Ethnic profiling practices that satisfy these standards may well be acceptable—though most uses of ethnic profiling do constitute prohibited discrimination.The European Court of Human Rights applied the framework summarized aboveto assess a practice involving ethnic profiling in the case of Timishev v. Russia. 259 Theapplicant in that case challenged Russian police officers’ action in barring him fromentering an administrative region because of his Chechen ethnicity 260 pursuant to anofficial policy of excluding Chechens from that area. 261 The court held that the applicanthad been subjected to different treatment in relation to his right to liberty of movementsolely due to his ethnic origin and that the difference in treatment was not justified. 262The court stated that… no difference in treatment which is based exclusively or to a decisive extent ona person’s ethnic origin is capable of being objectively justified in a contemporarydemocratic society . . . . [S]ince the applicant’s right to liberty of movement wasrestricted solely on the ground of his ethnic origin, that difference in treatmentconstituted racial discrimination within the meaning of Article 14 of the Convention.263European case law has established, then, that if ethnicity constitutes an “exclusive”or “decisive” basis for law-enforcement action, it almost certainly constitutes discrimination—andis therefore a violation of Article 14 of the ECHR when it occursin conjunction with a breach of another right protected by the convention. Similarly,the European Court has found that “a distinction based essentially on a difference inreligion is not acceptable,” 264 and the same is true for difference of treatment basedexclusively on the ground of nationality. 265While Chechen ethnicity was the sole basis for the discriminatory practices foundto violate the ECHR in Timishev v. Russia, in practice it is not always easy to prove thatethnicity was the exclusive or decisive basis for law enforcement action—such as a stopand search—that appears to be based on ethnic profiling. Indeed, ethnicity is rarelyexplicitly articulated as a reason for a stop; police more commonly give reasons such as:the person stopped was carrying something suspicious, tried to hide something, triedto avoid the officer, appeared nervous, seemed out-of-place, and similar rationales. It isoften only when a pattern of identity checks or stops and searches is examined that adisproportionate focus on members of a particular group clearly emerges. 266194 APPENDIX B: LEGAL STANDARDS AND CASE LAW