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

Criminal and Administrative Legal RemediesLitigation involving ethnic profiling remains rare in the EU beyond theUnited Kingdom. As noted above, it is important to provide criminal, civil,and administrative remedies for victims of ethnic profiling.Criminal sanctions in anti-discrimination law should apply to lawenforcement agencies and officers. This signals the seriousness and impermissiblenature of discrimination by law enforcement. In reality such provisionswill be used only rarely because in order to prosecute someone undercriminal provisions, racist intent must be established and a high standardof proof must be met. Ethnic profiling is often an outcome not of deliberatelyracist behavior but rather of established police practice, and criminallegal recourse is not an effective remedy for such patterns of practice.Civil and administrative law provide a more effective legal frameworkfor addressing ethnic profiling. Legislation should provide remedies thatare easily accessible to victims and enable them to prove ethnic profiling,including through: shifting the burden of proof to the law enforcementagencies themselves; 60 allowing “testing” cases 61 and statistical evidenceto be introduced as proof in courts of law; enabling organizations to bringcases on behalf of victims; and providing protection against any retaliatorymeasures for plaintiffs in ethnic profiling cases or people reporting or providingevidence of ethnic profiling.Legislation can play an important role in bringing about the system-wide changesneeded to recognize and eliminate ethnic profiling practices across law enforcementorganizations. The examples from the United Kingdom and Northern Ireland belowshow how legislation can promote broad changes in institutions by imposing “positiveduties” on law enforcement authorities.REDUCING ETHNIC PROFILING IN THE EUROPEAN UNION 35