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

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273. Eur. Ct. Hum. Rts., Marper v. the United Kingdon, Application no. 30562/04 and 30566/04,Judgment of December 4, 2008, at 125.274. Gusinskiy v. Russia, App. No. 70276/01, Eur. Ct. Hum. Rts., Judgment of May 29, 2004, § 53,“[…] the suspicion must be based on reasonable grounds that form an essential part of the safeguardagainst arbitrary arrest and detention. The fact that a suspicion is held in good faith is insufficient.The words “reasonable suspicion” imply the “existence of facts or information which would satisfyan objective observer that the person concerned may have committed the offense.” This rulingbuilds on the 1990 Judgment in Fox, Campbell and Hartley v. The United Kingdom, Application no.12244/86; 12245/86 and 12383/86, Judgment of August 30, 1990.275. Eur. Ct. Hum. Rts, Gillan and Quinton v. the United Kingdom, Application no. 4158/05, Judgmentof January 12, 2010, at 87.276. As police in EU member states consider this ruling in the light of the broad powers to stopand search that many European police enjoy, they should also consider the fact that the court inGillan, while not ruling on the stop and search as an Article 5 violation (liberty), notes that:In order to determine whether someone has been “deprived of his liberty” within themeaning of Article 5, the starting point must be his concrete situation and accountmust be taken of a whole range of criteria such as the type, duration, effects andmanner of implementation of the measure in question. […]The Court observes that although the length of time during which each applicant wasstopped and searched did not in either case exceed 30 minutes, during this period theapplicants were entirely deprived of any freedom of movement. They were obligedto remain where they were and submit to the search and if they had refused theywould have been liable to arrest, detention at a police station and criminal charges.This element of coercion is indicative of a deprivation of liberty within the meaningof Article 5.Eur. Ct. Hum. Rts, Gillan and Quinton v. the United Kingdom, Application no. 4158/05,Judgment of 12 January 2010, at 56.277. In its decision dismissing the applicant’s discrimination claim, the European Court emphasizedthat the applicant, an illegal African resident, had acknowledged her illegal status and organizeda collective action of other illegal African aliens in a Paris church to protest their legal status.Under these narrow circumstances, the court concluded that it “cannot conclude that the applicantwas subjected to discrimination based on race or colour” when law enforcement officers evacuatingthe charge singled out non-White occupants for further scrutiny.278. Bozano v. France, App. No. 9120/80, Eur. Ct. Hum. Rts., Judgment of December 18, 1986, at60–61 (finding breach of Article 5(1)(f) where a “deportation procedure was abused . . . for objectsand purposes other than its normal ones”). Pretextual stops are a common police practice in manysettings. To give one example, a French police officer told a researcher that: “If you are on the roadand see a black man or a man with Arabic features you say to yourself, ‘He doesn’t look French,’ andthen you might stop him to see if he has papers. While he is stopped you can search him and mayfind drugs or guns.” Cathy Schneider, “Police Power and Race Riots in Paris,” Politics and Society,Vol. 35, No. 4., December 2007.226 APPENDIX C: BILBLIOGRAPHY OF KEY TEXTS
279. In Rosalind Williams, Spanish Constitutional Court Decision No. 13/2001, January 29, 2001(STC 13/2001).280. See Rosalind Williams Lecraft v. Spain, Communication Submitted for Consideration Underthe First Optional Protocol to the International Covenant on Civil and Political Rights, filing by theOpen Society Justice Initiative, SOS Racismo, and Women’s Link Worldwide, September 11, 2006,at http://www.justiceinitiative.org/activities/ec/ec_spain.281. Id., at 7.2 and 7.4.282. R v. Immigration Officer at Prague Airport ex parte Roma Rights Centre and Others (“RomaRights”), UnKHL 55, Judgment of September 17, 2004.283. R v. Immigration Officer at Prague Airport ex parte Roma Rights Centre and Others (“RomaRights”), UKHL 55, Judgment of September 17, 2004, at 2–4.284. Id., Opinion of Baroness Hale of Richmond, at 98.285. Id., at 81 (quoting Opinion of Laws LJ in Court of Appeals’ judgment).286. Id., at 82–3. See also Opinion of Lord Carswell, at 113.REDUCING ETHNIC PROFILING IN THE EUROPEAN UNION 227
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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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REDUCING ETHNIC PROFILING IN THE EU
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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
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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
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Page 232: Ethnic profiling by police in Europ
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