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

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249. Robert Lambert, “Empowering Salafis and Islamists Against Al Qaeda: A London CounterterrorismCase Study,” PSOnline, January 2008, at 32, at www.apsanet.org.250. 660 UNTS 195, entered into force January 4, 1969.251. Article 14 of the ECHR provides: “The enjoyment of the rights and freedoms set forth in[the] Convention shall be secured without discrimination on any ground such as sex, race, colour,language, religion, political or other opinion, national or social origin, association with a nationalminority, property, birth or other status.” European Convention for the Protection of Human Rightsand Fundamental Freedoms, article 14, E.T.S. 5, entered into force September 3, 1953, as amendedby Protocols Nos. 3, 5, 8, and 11.252. Protocol No. 12 entered into force on April 1, 2005. As of January 18, 2008, 15 States wereparties to the protocol.253. Protocol No. 12 to the Convention for the Protection of Human Rights and FundamentalFreedoms, Explanatory Report, at 22(iii).254. Timishev v. Russia, App. Nos. 55762/00, 55974/00, Eur. Ct. Hum. Rts., Judgment of December13, 2005, at 56.255. Belgian Linguistics Case (No. 2), 1 EHRR 252, at10 (1968); see also Abdulaziz and Others v.United Kingdom, Eur. Ct. Hum. Rts., Judgment of May 28, 1985, at 72.256. See mutatis mutandis the case of Abdulaziz and Others v. United Kingdom, Eur. Ct. Hum.Rts., Judgment of May 28, 1985, at 81.257. Id. (Abdulaziz), at 72.258. In the Inze case, for example, the court found that proposed legislative amendments “showthat the aim of the legislation in question could also have been achieved by applying criteria otherthan that based on [birth in or out of wedlock],” which it found to violate the ECHR. Inze v. Austria,No. 8695/79, Eur. Ct. Hum. Rts., Judgment of October 28, 1987, at 44.259. Timishev v. Russia, App. Nos. 55762/00, 55974/00, Eur. Ct. Hum. Rts., Judgment of December13, 2005.260. Id., at 39–44.261. Id., at 41.262. In one judgment cited in Timishev, Nachova v. Bulgaria, the Grand Chamber held that thefailure to investigate vigorously the racially motivated shooting of two Roma by Bulgarian militarypolice violated the nondiscrimination guarantee of Article 14 taken in conjunction with Article 2(right to life). Pertinent to ethnic profiling, the court endorsed another chamber’s assertion that, “[i]n order to maintain public confidence in their law enforcement machinery, Contracting States mustensure that in the investigation of incidents involving the use of force a distinction is made bothin their legal systems and in practice between cases of excessive use of force and of racist killing.”Nachova and Others v. Bulgaria, (Eur. Ct. Hum. Rts.), Judgment of July 6, 2005, at 160.263. Id., at 58–59.264. Hoffmann v Austria, Eur. Ct. Hum. Rts., Judgment of June 23, 1993, at 36.265. Gaygusuz v Austria, Eur. Ct. Hum. Rts., Judgment of September 16, 1996, at 42.224 APPENDIX C: BILBLIOGRAPHY OF KEY TEXTS
266. To undertake this kind of analysis, researchers need data on police stops including the ethnicityof the person stopped. These data sets are generally lacking in Europe; many police forces donot record their stops or do not make this information publicly available and, for historical reasonsdiscussed further in Annex II to this report, almost no countries record ethnic data. The UnitedKingdom is the only EU Member State that collects and, since 1992, regularly publishes statisticson ethnicity and police stop and search practices.267. In a decision on admissibility in Cissé v. France, App No. 51346/99, January 16, 2001, thecourt declared inadmissible the portions of the application alleging a violation of Article 14 in conjunctionwith Article 5 in relation to a police evacuation of a Paris church that had been occupiedby “a group of aliens from various African countries who had settled in France without residencepermits” and who “in 1996 decided to take collective action to draw attention to the difficultiesthey were having in obtaining a review of their immigration status in France.” The Article 14/5allegations related to the following facts: When evacuating the church, the police stopped and questionedall of the occupants. “Whites were immediately released while the police assembled all thedark-skinned occupants, apart from those on hunger strike, and sent them by coach to an aliens’detention center.” Noting that a majority of the occupants of the church, including the applicant,belonged to the group of aliens from Africa who did not possess residence permits, the court notedthat “the system set up at the church exit for checking identities was intended to ascertain the identityof persons suspect[ed] of being illegal immigrants. In these circumstances,” the court “[couldnot] conclude that the applicant was subjected to discrimination based on race or colour.”268. For example in Cobzaru v. Romania, a case involving police violence against a Roma victim,the court observed: “that the numerous anti-Roma incidents which often involved State agentsfollowing the fall of the communist regime in 1990, and other documented evidence of repeatedfailure by the authorities to remedy instances of such violence were known to the public at large,as they were regularly covered by the media. …. [U]ndoubtedly, such incidents, as well as the policiesadopted by the highest Romanian authorities in order to fight discrimination against Romawere known to the investigating authorities in the present case, or should have been known, andtherefore special care should have been taken in investigating possible racist motives behind theviolence.”In Cobzaru v Romania, App. No. 48254/99, Eur. Ct. Hum. Rts., Judgment of July 27, 2007, at 97.Far from taking “special care” to investigate possible racist motives behind the violence, Romanianprosecutors had “made tendentious remarks in relation to the applicant’s Roma origin throughoutthe investigation.” Id., at 98. The court found that these comments disclosed “a general discriminatoryattitude of the authorities,” id., at100, and that this, together with “the failure of the lawenforcement agents to investigate possible racial motives in the applicant’s ill-treatment,” constituteddiscrimination in violation of the ECHR. Id., at 101.269. D.H. and Others v the Czech Republic, App. No. 57325/00. Eur. Ct. Hum. Rts., Grand Chamber,Judgment of November 13, 2007.270. Id., at 184.271. This case involved a challenge to discriminatory practices in public education.272. Eur. Ct. Hum. Rts., Gillan and Quinton v. the United Kingdom, Application no. 4158/05, Judgmentof January 12, 2010, at 85.REDUCING ETHNIC PROFILING IN THE EUROPEAN UNION 225
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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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The website provides an interactive
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Appendix A:Sample Stop Forms171
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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 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: 230. More information can be found
Page 229 and 230: 279. In Rosalind Williams, Spanish
Page 232: Ethnic profiling by police in Europ
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