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

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131. The Danish Institute of Human Rights, Ethnic Profiling in Denmark—Legal Safeguards withinthe Field of the Work of the Police, Copenhagen: DIHR, 2011.132. At: http://www.mpa.gov.United Kingdom/downloads/issues/stop-search/stop-search-report-2004.pdf.133. In the United Kingdom context, “Stop and account” refers to police officers stopping membersof the public and asking them to account for their actions or presence in an area. It is not astatutory power, but has been recorded since 2005 following public concerns about disproportionalityin its use.134. Northern Ireland Policing Board, Human Rights Thematic Review–Children and Young People,Belfast: NIPB, 2011, at: http://www.nipolicingboard.org.United Kingdom/human_rights_thematic_enquiry_children___young_people_final_pdf.pdf and Northern Ireland Policing Board, HumanRights Thematic Review—Stop and Search, Belfast: NIPB, March 2011.135. Hans Born and Ian Leigh, Democratic Accountability of Intelligence Services, Centre for SecurityDevelopment and the Rule of Law, Geneva: DCAF, 2007.136. House of Commons Communities and Local Government Committee, Preventing ViolentExtremism, Sixth Report of Session 2009–2010, at 74–75.137. For example, when ECRI recommended that France collect statistics broken down by ethnicity,French authorities termed the suggestion “inconceivable.” European Commission AgainstRacism and Intolerance, Third Report on France, Strasbourg: ECRI, 2004, at appendix. Europeanstandards also clearly recognize the need for and value of statistical data in the criminal justice andlaw enforcement realm. The Council of Europe’s Committee of Ministers has made clear that it is“[a]ware of the needs in both the public and private sectors for reliable statistics for analysis andunderstanding of contemporary society, and for defining policies.” Preamble, Recommendationno. R (97) 18 of the Committee of Ministers concerning the Protection of Personal Data Collectedand Processed for Statistical Purposes. Recommendation R(97)18 of the Committee of Ministersexplicitly permits the processing of sensitive data including “personal data revealing racial origin”where domestic law provides that data must be “collected in such a way that the data subject is notidentifiable.” Similar provisions exist in the European Council Framework Decision 2008/977/JHAon the protection of personal data processed in the framework of police and judicial cooperation incriminal matters: Article 3 notes the possibility of processing personal data for “historical, statisticalor scientific purposes, provided that Member States provide appropriate safeguards, such as makingthe data anonymous.”138. The European Union Directive on the protection of individuals with regard to the processingof personal data (Directive 95/46/EC “on the protection of individuals with regard to the processingof personal data and on the free movement of such data,” October 24, 1995) and on the free movementof such data expressly exempts from its application anonymous statistical information of thekind needed to document and prove racial discrimination. The Directive’s “principles of protection”apply only to “personal data”—“information relating to an identified or identifiable natural person”(art. 2(a)); and such principles “shall not apply to data rendered anonymous in such a way that thedata subject is no longer identifiable,” (Recital 26). Moreover, processing even of “personal datarevealing racial or ethnic origin” is permissible where, among other things, it “b) is necessary [tosatisfy] obligations … of the controller in the field of employment law,” or it “e) relates to data whichare … necessary for the establishment, exercise or defence of legal claims,” (Art. 8).216 NOTES
139. For example, European Commission Against Racism and Intolerance, Third Report Germany,Strasbourg: ECRI, 2003, at 85; and the OSCE, Recommendations on Policing in Multi-Ethnic Societies.See also, Fundamental Rights Agency, Toward More Effective Policing. Understanding and PreventingDiscriminatory Ethnic Profiling: A Guide, Vienna: FRA, 2010, at 25.140. Article 42.141. The basic principles of data protection in the police sector are established in the Councilof Europe’s Recommendation 15 of 1987 on the use of personal data in the police sector. Furtherguidance is provided by the Council of Europe’s Convention for the Protection of Individuals withRegard to Automatic Processing of Personal Data (1981).142. Council of Europe Convention for the Protection of Individuals with Regard to AutomaticProcessing of Personal Data (1981) Article 6 on special categories of data.143. Recommendation 15 (1987) stipulates that “Measures should be taken so that personal datakept for police purposes are deleted if they are no longer necessary for the purposes for which theywere stored.”144. New York State Assembly law A.11177-A/S.7945-A.145. Section 95 of the 1991 Criminal Justice Act.146. In the United Kingdom, stop data are often compared against census data which gives theresident population of a given area at a point in time. As there can be long intervals between onecensus and another, census data may not provide an up-to-date representation of local resident populations.There are also circumstances in which census data on residents may not reflect the profileof people who are actually present in a particular place at a particular time. For example, the localcensus is unlikely to provide an accurate picture of persons driving on motorways or using publicspaces. It also appears that the police conduct stops and searches in places and at times when largenumbers of young people and ethnic minorities are present. The factors outlined above lay behinda pioneering observational study in the United Kingdom.147. Nick Bland, Joel Miller, et al, Upping the PACE? An evaluation of the recommendations of theStephen Lawrence Inquiry on stops and searches, London: Home Office, 2000.148. Case study based on interviews conducted with the Merseyside Police in March 2011.149. StopWatch, StopWatch’s response to the proposed changes to the Police and Criminal Evidence Act1984 (PACE) Code of Practice A. Revisions proposed 20th September 2010, London: October 2010. TheOpen Society Justice Initiative is a founding member of StopWatch. See www.stop-watch.org.150. Case study based on interviews with the West Yorkshire Police in June 2010.151. In Spain, nationality was used a proxy for ethnicity. Thus the term “Spanish” is used to indicate“white Spanish,” while nationality is used to described the ethnicity of other groups stopped.As few immigrants to Spain have nationalized, it is still possible to use nationality as an accurateproxy for ethnicity, but this but this hides those who have nationalized, ethnic minorities who areborn in Spain, and Roma, and will cease to be a useful proxy over time.152. See Open Society Justice Initiative, Addressing Ethnic Profiling by the Police: A Report on theStrategies for Effective Police Stop and Search (STEPSS) Project, New York: OSI, 2008. A STEPSSResource Pack containing examples of forms, operational guidance and “know your rights” bookletsis available on request from: info@justiceinitiative.org.REDUCING ETHNIC PROFILING IN THE EUROPEAN UNION 217
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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
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The strategy includes multiple init
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Page 170 and 171: General principles of good practice
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Page 185 and 186: Fuenlabrada, Spain Stop FormREDUCIN
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Page 194 and 195: Covenant rights that are especially
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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 and 214: 57. R. Davis and P. Mateu-Gelabert,
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Page 217: Ireland). Of the total number of co
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
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Page 229 and 230: 279. In Rosalind Williams, Spanish
Page 232: Ethnic profiling by police in Europ
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