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

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106. Code de Procedure Pénale, Article 78.1.107. GISTI, Le contrôle d’identité des étrangers, Paris: GISTI, 2003, at 5.108. Conseil Constitutionel, Décision du Conseil consitutionel no. 93–325 du 13 août 1993.109. Conseil Constitutionel, Décision du Conseil consitutionel no. 93–323 du 13 août 1993.110. Phillip Atiba Goff; Liana Maris Epstein; Chief Chris Burbank; Division Chief Tracie L. Keesee,Ph.D., Deputizing Discrimination? Causes & Effects of Cross-Deputization Policy in Salt Lake City,Utah, The Consortium for Police Leadership in Equity, Board of Directors, forthcoming. Also,Nicole J. Henderson, Christopher W. Ortiz, Naomi F. Sugie, and Joel Miller, Law Enforcement andArab-American Community Relations After September 11; Engagement in a Time of Uncertainty, NewYork: Vera Institute of Justice, June 2006; Deborah Ramirez et al., Developing Partnerships BetweenLaw Enforcement and American Muslim, Arab and Sikh Communities; A Promising Practices Guide,New York and Boston: OSI and North Eastern University, 2004.111. National Action Plan Against Racism (NPAR) at 41.112. In the case of Bekor and Koutropolous v. Greece, two Greek citizens of Roma ethnicity chargedthat abuse suffered at hands of police during arrest and in detention was racially motivated. Thecourt found that the evidence did not adequately demonstrate racist intent and did not rule on theArticle 14 claim. However, the court considered that, when investigating violent incidents, stateauthorities had the additional duty to take all reasonable steps to unmask any racist motive and toestablish whether or not ethnic hatred or prejudice might have played a role in the events. Admittedly,proving racial motivation would often be extremely difficult in practice. The authorities had todo what was reasonable in the circumstances to collect and secure the evidence, explore all practicalmeans of discovering the truth and deliver fully-reasoned, impartial and objective decisions, withoutomitting suspicious facts that might indicate racist motives. ECtHR, 15250/02.113. Samuel Walker, The New World of Police Accountability. Thousand Oaks: Sage Publications,2005.114. Hans Born and Marina Caparini, Democratic Control of Intelligence Services, Geneva: DCAF,2007. Hans Born and Ian Leigh, Democratic Accountability of Intelligence Services, Geneva: DCAFPolicy Paper 19, 2007.115. Independent Police Complaints Commission (IPCC), IPCC position regarding police powers tostop and search, London: IPCC, 2009. Available at: http://www.ipcc.gov.United Kingdom/stop_and_search_policy_position.pdf.116. Report on internal and external discrimination by police services: analysis of complaints forthe year 2004 relating to racism. Available in French at: http://www.comitep.be/fr/fr.html (publications2005).117. 112 Commission Nationale de Déontologie de la Sécurité (CNDS), Rapport annuel 2004,Paris : CNDS, at 496; translation by the authors.118. 113 CNDS, Rapport annuel 2004, at 503.119. Garda Síochana Act 2005, section 106.120. GSOC statistics show that 83 percent of complaints received by December 31, 2009 were fromIrish nationals and 17 percent from non-nationals (who represent 10 percent of the population of214 NOTES
Ireland). Of the total number of complainants, three percent were British, two percent Polish, onepercent Lithuanian, two percent Nigerian, four percent “other European,” two percent other African,two percent “other,” and one percent not known. Within the Irish national caseload, four percent ofcomplaints were received from Travellers, five percent from blacks, and 88 percent from whites.121. These examinations can only be carried out at the request of the Minister of Justice. Inprinciple, the minister should grant the ombudsman’s requests for such examinations and requestthe ombudsman to carry out these examinations when he sees fit. However, practice to date indicatesthat this is not necessarily the case. “In July 2007, GSOC wrote to the Minister concerninga possible examination under section 106 of the management of incidents of crowd protest orcivil disobedience by groups or persons. The Minister, following discussions with GSOC, did notfeel that it was appropriate at that time for him to request such an examination.” Garda SíochanaOmbudsman Commission (GSOC), Second Annual Report 2007. GSOC reports are available at www.gardaombudsman.ie.122. Equality Monitoring Report 2000–2007.123. Katy Radford, Jennifer Betts and Malcolm Ostmeyer, Police, Accountability and the Black andMinority Ethnic Communities in Northern Ireland, Belfast: Institute for Conflict Research, February2006, http://www.nipolicingboard.org.United Kingdom/minority1-2.pdf.124. The Netherlands National Ombudsman, Reports 2006/230 and 2007/001.125. Here the complainant perceived a question about the reason for her stay as motivated byracism. The minister responded that “it cannot be concluded from the subjective observation ofa single person [the complainant] that a KMar officer’s actions were motivated by racism, sincethese observations can be explained in various ways.” The ombudsman noted that “The petitioner’sperception that the question was prompted by racist motives is indeed subjective. However, thisperception was caused by the fact that nobody explained to her why the question was asked. Thiswas also omitted in the complaints procedure [internal to KMar] and undermines the argumentthat the close questioning was in no way based on discrimination. The Minister should either havegiven a good reason why the petitioner was asked the question or should have recognised that thepetitioner’s argument could not be refuted and subsequently drawn a conclusion. The complaintsprocedure failed to produce reasoned arguments. The investigated behaviour was not appropriate.”The Netherlands National Ombudsman, Report 2008/059, at 33; see also above at Section 1, d.126. Report no. 2009/170.127. Report 2007/080.128. Northern Ireland Human Rights Commission, “Our Hidden Borders” (Belfast 2009) Availableat: http://www.statewatch.org/news/2009/apr/Our%20Hidden%20Borders%20April%202009.pdf.129. Equalities and Human Rights Commission (EHRC) “Stop and Think: A Critical Review ofthe Use of Stop and Search Powers in England and Wales,” London, 2010. Available at http://www.equalityhumanrights.com/uploaded_files/raceinbritain/ehrc_stop_and_search_report.pdf.130. EHRC, “Commission and police forces sign agreement on stop and search,” May 10, 2011.Press release available at: http://www.equalityhumanrights.com/news/2011/may/commission-andpolice-forces-sign-agreement-on-stop-and-search/.REDUCING ETHNIC PROFILING IN THE EUROPEAN UNION 215
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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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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 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
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: 88. Gillan and Quinton v. United Ki
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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