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

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The clear risk of arbitrariness in the grant of such broad discretion to the policeofficer. While the present case does not concern black applicants or those of Asianorigin, the risks of the discriminatory use of the powers against such persons isa very real consideration […]. The available statistics show that black and Asianpersons are disproportionately affected by the powers. 272Similar concerns were echoed in the judgment in the case of Marper v. UnitedKingdom (a case which ruled that United Kingdom practices of gathering and indefinitelystoring DNA, including of persons never charged or convicted, violated privacyrights) which noted the over-representation of ethnic minorities in the database. 273The court’s ruling in Gillan and Quinton v. the United Kingdom establishes thatstop and search must be based on reasonable suspicion in order to meet standards oflawfulness and respect privacy rights, and that United Kingdom counter-terrorism lawsgranting the police broad powers to stop and search persons without any requirementof reasonable suspicion are unlawful. 274 In this case, the European Court of HumanRights held that:[T]he powers of authorisation and confirmation as well as those of stop andsearch under sections 44 and 45 of the 2000 [United Kingdom Prevention ofTerrorism] Act are neither sufficiently circumscribed nor subject to adequate legalsafeguards against abuse. They are not, therefore, “in accordance with the law”and it follows that there has been a violation of Article 8 of the Convention.” 275Police in many EU countries have broad powers to conduct stops and searches,including under special preventive powers authorized for specific times and places. Allsuch powers should be reviewed to assure compliance with standards established inGillan. 276Immigration Enforcement Powers and Deficits inCurrent Non-Discrimination ProvisionsEuropean law does not apply similar protection against discrimination in the realm ofimmigration enforcement. Current EU immigration law creates an exception in theprotection of third country nationals under Article 3.2 of the Racial Equality Directive(Council Directive 2000/43/EC) which derogates the principle of non-discrimination,allowing for differences of treatment on grounds of nationality, immigration process,196 APPENDIX B: LEGAL STANDARDS AND CASE LAW
and the legal status of third country nationals. But third country nationals enjoy thesame protection from discrimination on grounds of racial or ethnic origin as others.The exclusion of nationality discrimination leaves a significant gap in protectionagainst discrimination, both in the realm of border controls and immigration enforcement,but also in as much as immigration control drives a certain amount of ethnicprofiling in domestic policing. In current law enforcement practices, it appears that attimes allegedly legitimate differences based in nationality are in fact forms of discriminationthat are based on race or ethnic origin—as with police profiling of minoritiesin their use of identity checks and stops to detect illegal immigrants. This exemptionof the field of immigration from the prohibition against discrimination on grounds ofracial or ethnic origin has been misused by member states to evade their obligationto ensure that asylum and immigration laws and practices are neither discriminatorynor have discriminatory effects, and has prevented EU law from fully addressing theproblem of profiling.The permissibility of ethnic profiling in immigration contexts is an area that isevolving in national and international rulings. In 2001, the European Court of HumanRights rejected a claim of discrimination in a case—Cissé v. France—that involvedenforcement of French immigration laws. 277 But the thinly-reasoned judgment did notmake clear whether or to what extent this context was relevant to its decision. TheEuropean Court has condemned in strong terms the use of immigration grounds as apretext for other purposes. 278National courts in Europe have taken divergent approaches to the questionwhether there is greater scope for ethnic profiling in an immigration enforcementcontext. In a 2001 ruling in the case of Rosalind Williams-Lecraft, the Spanish ConstitutionalCourt accorded the police broad latitude, ruling that it is permissible for thepolice to “use the racial criterion as merely indicative of a greater probability that theinterested party was not Spanish.” 279 The court reasoned that when police controls servethe purpose of “requiring that foreigners in Spanish territory are obliged to have documentationwhich proves their identity and their legal status in Spain …. specific physicalor ethnic characteristics can be taken into consideration as reasonably indicative of thenational origin of the person who has them.” A dissenting judge noted that using raceas a proxy for nationality makes little sense in what is “already a multi-racial society.” 280Williams-Lecraft appealed this decision before the United Nations Committeeon Human Rights. In June 2009, the HRC ruled in favor of Williams-Lecraft, findingthat she had been singled out for an identity check solely on the ground of her racialcharacteristics and that in making these characteristics the decisive factor in her beingsuspected of unlawful conduct, Spain was violation of article 26, read in conjunctionwith article 2(3), of the International Covenant on Civil and Political Rights.REDUCING ETHNIC PROFILING IN THE EUROPEAN UNION 197
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OPEN SOCIETY JUSTICE INITIATIVERedu
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described in this report. The case
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List of Case StudiesThe case studie
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UNITED KINGDOMAUSTRIA/BELGIUM/BULGA
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UNITED KINGDOMUNITED KINGDOMNETHERL
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The United Nations, the Council of
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I. Ethnic Profiling DefinedA Compre
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The use by the police, with no obje
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explicitly on their membership in a
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of the persons subjected thereto sh
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The impact of ethnic profiling on c
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of the ethnic minorities disproport
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II. A Holistic Approachto Reducing
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Law enforcement agencies are accoun
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III. Legal Standards andInstitution
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Criminal and Administrative Legal R
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ImmigrationThe Equality Act covers
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FRANCEObligation of Non-Discriminat
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General principles of good practice
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UNITED KINGDOMPolice and Criminal E
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has lasted for an hour, the examini
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In order to conduct a check using a
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the person could pose a threat to p
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Improving law enforcement relations
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IRELANDPolicing Plan 2008The Garda
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officer misconduct more than patter
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complaints commissions that include
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Civilian oversight can and should d
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In Ireland and Northern Ireland, po
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These case studies also demonstrate
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NETHERLANDSNational OmbudsmanThe Du
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UNITED KINGDOM / NORTHERN IRELANDNo
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DENMARKThe Danish Institute of Huma
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• the impact of race• the use o
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UNITED KINGDOMThe Communities and L
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used, such as those described below
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passengers at borders, although the
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UNITED KINGDOMMerseyside Police Rev
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Reducing Ethnic Profiling and Impro
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As the above examples indicate, dat
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Research Approaches and Methodologi
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Observational studies were pioneere
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The study revealed that in addition
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esponses, and in some cases, broad
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UNITED STATESAttitudinal Survey of
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UNITED KINGDOMThe Views of the Publ
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NORTHERN IRELANDBeyond the Margins:
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DENMARKMedia Reporting of Police St
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VI. Strategies for Reducing EthnicD
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people were stopped and valuable po
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only do so if the measure is determ
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Supervision and Oversight of Front-
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This is not to say that stop forms
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• Recording of self-defined ethni
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UNITED KINGDOM“Know Your Rights
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Prior to the ride-alongs, many Hung
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UNITED KINGDOMMonitoring the Qualit
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GREECEProhibition of Racist Languag
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This handbook recommends that law e
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Where possible, training should inc
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SWEDENPolice and Youth Sharing Expe
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Training in the Counter-radicalizat
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VIII. Changing Institutional Cultur
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and Wales have used the package. Mo
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NORTHERN IRELANDCreating a More Bal
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Moroccan man. Another minority offi
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Page 147: General principles of good practice
Page 150 and 151: other characteristics or values. Co
Page 152 and 153: Take steps to ensure that all parts
Page 154 and 155: Law enforcement agencies must be se
Page 156 and 157: A large number of Polish migrants h
Page 158 and 159: variety of individuals with “life
Page 160 and 161: UNITED KINGDOMCommunity Stop and Se
Page 162 and 163: their needs, and problems, and hear
Page 164 and 165: to travel as far as Liverpool to ac
Page 166 and 167: The strategy includes multiple init
Page 168 and 169: The website provides an interactive
Page 170 and 171: General principles of good practice
Page 173 and 174: Appendix A:Sample Stop Forms171
Page 175 and 176: REDUCING ETHNIC PROFILING IN THE EU
Page 185 and 186: Fuenlabrada, Spain Stop FormREDUCIN
Page 191: West Yorkshire Police Stop ReceiptR
Page 194 and 195: Covenant rights that are especially
Page 196 and 197: • Necessity: The use of ethnic pr
Page 200 and 201: The Committee considers that identi
Page 202 and 203: adopted on June 29, 2007, CRI/Counc
Page 204 and 205: European Union Fundamental Rights A
Page 207 and 208: Notes1. Rebekah Delsol, Open Societ
Page 209 and 210: 13. A report of MI5’s behavioral
Page 211 and 212: 38. From the email text sent by Tem
Page 213 and 214: 57. R. Davis and P. Mateu-Gelabert,
Page 215 and 216: 88. Gillan and Quinton v. United Ki
Page 217 and 218: Ireland). Of the total number of co
Page 219 and 220: 139. For example, European Commissi
Page 221 and 222: 165. Open Society Justice Initiativ
Page 223 and 224: 197. These can be found at: http://
Page 225 and 226: 230. More information can be found
Page 227 and 228: 266. To undertake this kind of anal
Page 229 and 230: 279. In Rosalind Williams, Spanish
Page 232: Ethnic profiling by police in Europ
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