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

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76. In Gillan and Quinton v. United Kingdom, Application No. 4158/05, ECtHR 28, 12 January2010, the European Court of Human Rights ruled on British stop-and-search powers under section44 of the Counter-Terrorism Act. Section 44 was applied through an authorization procedure forset time periods in set locations; however, the power was granted to authorities for most of Londonfor many years. Officers could stop people with no grounds for reasonable suspicion under section44. The court considered that “the powers of authorization and confirmation as well as those ofstop and search under sections 44 and 45 of the 2000 Act are neither sufficiently circumscribednor subject to adequate legal safeguards against abuse.” While only ruling on a violation of privacyrights, the court also flagged “the clear risk of arbitrariness in the grant of such a broad discretionto the police officer,” at 87.77. Open Society Justice Initiative, Addressing Ethnic Profiling by the Police: A Report on the Strategiesfor Effective Police Stop and Search (STEPSS) Project, New York and Budapest: OSI, 2008.78. Jeffrey Fagan, Expert Report in the case of Floyd et al. v. City of New York, United States DistrictCourt, Southern District of New York, 08 CIV 01034 (SAS), available at http://ccrjustice.org/files/Expert_Report_JeffreyFagan.pdf.79. Paul Quinton, Nick Bland, et al. Police Stops, Decision-Making and Practice, London: HomeOffice, 2000.80. Human Rights Watch, Without Suspicion: Stop and search under the Terrorism Act 2000, NewYork: Human Rights Watch, 2010.81. The Police and Criminal Evidence Act 1984 Code of Practice has been revised several times;the latest version came into effect on the on March 7, 2011. This includes PACE 1984 (section 1),the Misuse of Drugs Act 1971 (section 23), the Firearms Act 1968 (section 47), the Terrorism Act2000 (sections 43 and 44) and section 60 of the Criminal Justice and Public Order Act 1994. It canbe found at: http://www.homeoffice.gov.United Kingdom/publications/police/operational-policing/pace-codes/pace-code-a-2011?view=Binary.82. At 2.2.83. The 2005 version of the Code of Practice introduced the reporting of “stops” as well as stopand searches. Stops or stop and accounts are defined as stops where officers ask an individual toaccount for their actions or presence in an area but do not go on to search that person. The 2011version of the code places the decision on whether stops or stop and accounts be recorded in thehands of individual police forces.84. Equality and Human Rights Commission (2012) “Race disproportionality in stops andsearches under Section 60 of the Criminal Justice and Public Order Act 1994, Briefing paper 5,”London: EHRC, p. 24.85. Paul Quinton, Nick Bland, et al., Police Stops, Decision-making and Practice, London: HomeOffice, 2000.86. Home Office, Code of Practice (England, Wales and Scotland) for the Authorisation andExercise of Stop and Search Powers Relating to Section 47A of Schedule 6B to the Terrorism Act2000, March 18, 2011, http://www.homeoffice.gov.United Kingdom/publications/counter-terrorism/terrorism-act-remedial-order/code-of-practice?view=Binary.87. The Terrorism Act 2000 can be found at: http://www.opsi.gov.United Kingdom/Acts/acts2000/pdf/United Kingdompga_20000011_en.pdf.212 NOTES
88. Gillan and Quinton v. United Kingdom, Application No. 4158/05, Eur. Ct. Hum. Rts. 28, January12, 2010.89. Home Office, Code of Practice (England, Wales and Scotland) for the Authorisation and Exerciseof Stop and Search Powers Relating to Section 47A of Schedule 6B to the Terrorism Act 2000March 18, 2011, http://www.homeoffice.gov.United Kingdom/publications/counter-terrorism/terrorism-act-remedial-order/code-of-practice?view=Binary,para. 3.1.1.90. Human Rights Joint Committee, Fourteenth Report, Terrorism Act 2000 (Remedial) Order 2011:Stop and Search without Reasonable Suspicion, http://www.parliament.United Kingdom/business/committees/committees-a-z/joint-select/human-rights-committee/news/fourteenth-report/.91. Schedule 7 of the Terrorism Act 2000. Available at: http://www.opsi.gov.United Kingdom/acts/acts2000/United Kingdompga_20000011_en_1.92. Home Office, Examination Officers under the Terrorism Act 2000—Code of Practice, London:Home Office, 2009.93. National Policing Improvement Agency, Practice Advice on Schedule 7 of the Terrorism Act2000, London: NPIA, 2009. Available at: http://www.npia.police.United Kingdom/en/docs/Schedule_7_of_the_Terrorism_Act_2000.pdf.94. Council Directive 2000/43/EC of June 29, 2000 implementing the principle of equal treatmentbetween persons irrespective of racial or ethnic origin.95. Council Directive 2000/43/EC.96. Recital (13), Directive 2000/43.97. Kuric v. Slovenia, Judgment of 26 June 2012 (Grand Chamber), para. 355.98. Gaygusuz v Austria, 23 EHRR 365, para. 42 (1996).99. Regina v. Immigration Officer at Prague Airport, [2004] United Kingdom HL 55, at http://www.publications.parliament.United Kingdom/pa/ld200405/ldjudgmt/jd041209/roma-4.htm.100. Passenger Name Record data include: a) known travel agency; b) short visits to risk country;c) unusual routing; d) cash paid ticket; e) recent passport (less than a month before departure);f) voyage out (alone), voyage home (not alone); g) less than 10 day return ticket; h) voyage out andhome with different tickets; i) judicial information in Belgium or abroad. Interview with officialsof Brussels airport police, October 2008.101. Case study based on interview conducted with Customs officers on August 16, 2008.102. The independent review recommended that all searches of persons require “independenthigher officer authorization.” This has significantly reduced the number of searches carried out, buthas not reduced disproportionality—Afro-Caribbeans are still searched in disproportionate numbers.Customs may remove the requirement for approval by an “independent higher officer” as itis not always practical in smaller ports.103. Rosalind Williams, Spanish Constitutional Court Decision No. 13/2001, January 29, 2001(STC 13/2001). See Annex A.104. Utlänningslag (2005: 716).105. Ordonnance No. 45–2658, du 2 Novembre 1945, Article 8.REDUCING ETHNIC PROFILING IN THE EUROPEAN UNION 213
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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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other characteristics or values. Co
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Take steps to ensure that all parts
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Law enforcement agencies must be se
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A large number of Polish migrants h
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variety of individuals with “life
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UNITED KINGDOMCommunity Stop and Se
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their needs, and problems, and hear
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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
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Page 194 and 195: Covenant rights that are especially
Page 196 and 197: • Necessity: The use of ethnic pr
Page 198 and 199: The clear risk of arbitrariness in
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
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Page 213: 57. R. Davis and P. Mateu-Gelabert,
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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