Back Ethnic profiling is illegal

Opinion article

OpenDemocracy, 29/06/2020

It is incompatible with the principles of pluralism and respect for different cultures that define a democratic society.

The brutal killing of George Floyd in Minneapolis by a police officer has brought hundreds of thousands of people to the streets across the world, including in Europe. They demand justice, and an end to police abuses. Politicians must heed these requests.

The reform of the police is a long-standing issue in many European countries. Discriminatory police checks and excessive use of force are often the top layer of the daily lived experience of racism for many Europeans. Structural discrimination still keeps millions of our citizens belonging to ethnic minorities on the margins of our societies, in particular in employment, health, education, housing, and the criminal justice system.

Ethnic profiling by the police illustrates this problem well. A 2017 EU-wide survey by the Fundamental Rights Agency shows that of over 25,000 respondents with different ethnic minority and immigrant backgrounds,14% had been stopped by the police in the 12 months preceding the survey. In France a national survey showed in 2017 that young men of Arab and African descent were twenty times more likely to be stopped and searched than any other male group. In the UK – where the law requires police to collect and publish disaggregated data on police stop-and-search practices – official statistics for 2017-2018 show that Black people were nine and a half times more likely to be stopped than white people in England and Wales.

Ethnic profiling is unethical, counterproductive and most importantly, illegal. It is immoral for the police to discriminate against people on grounds related to their physical characteristics. It is also counterproductive because ethnic profiling deeply damages the relationship between the police and the population, which is a fundamental element of a peaceful and prosperous society. And it is illegal because it violates well-established international human rights law protecting equality and human dignity.

A growing body of national and international judicial decisions has reaffirmed this principle with great clarity. In a case against Russia the European Court of Human Rights held in 2005 that treatment which is based exclusively or to a decisive extent on a person’s ethnic origin is incompatible with the principles of pluralism and respect for different cultures that define a democratic society. In a 2009 case against Spain regarding checks aimed at identifying migrants in an irregular situation, the United Nation Human Rights Committee found that the use of physical or ethnic characteristics by themselves as an indicator in the context of these checks was incompatible with the International Covenant on Civil and Political Rights.

In 2016 the Court of Cassation in France delivered a landmark decision which condemned the French state for discriminatory identity checks carried out solely on the basis of physical characteristics.

In the same year, the Higher Administrative Court of Rhineland-Palatinate in Germany ruled that identity checks based on a person’s skin colour were incompatible with the principle of equality. That judgment echoed similar ones taken by the same court in 2012, and by the Administrative Court of Baden Württemberg in 2018 and by the Higher Administrative Court of North Rhine-Westphalia in the same year.

In 2018 the Supreme Court of the Netherlands found that the national police programme stopping cars with plates from Eastern European countries was discriminatory. In the same year, the Svea Court of Appeal in Sweden found that the inclusion of several Roma persons in a Swedish police register solely based on their origin amounted to ethnic discrimination.

European governments end the go-slow?

Despite this abundant body of evidence, European governments have all too often been slow or ineffective in preventing and sanctioning police abuses and ethnic profiling. Now, the massive mobilisation of people of all origins should change the game. European societies and political leaders can no longer ignore the extent of the problem.

A number of countries have already announced measures attempting to tackle police abuses. Some political leaders have also unequivocally condemned racism and made it clear that they are listening to the demonstrators. This is all promising, but not enough. State authorities must transform these initial reactions into a paradigm shift and lasting, meaningful change.

Combating racism is a huge task that will require sustained action in the long run, in particular in the field of education and employment. Arguably, however, the most urgent sector in which state authorities must intervene are public institutions. And the police are one of the most prominent of such institutions where measures must be taken against racism and discrimination.

Progress can be achieved by focusing on two attainable goals.

Firstly, stamp out ethnic profiling. Collecting and publishing data on policing disaggregated by nationality, language, religion, appearance and national or ethnic background is an essential step. States should also adopt legislation clearly defining and prohibiting discriminatory profiling and circumscribing the discretionary powers of law enforcement officials.

A reasonable suspicion standard should be applied in stop and search, and police should undergo continuous human rights training on how to abide by it in their daily activities. Crucially, law enforcement officials should explain the reasons for stopping a person, even without being asked, as this can help dispel perceptions of bias-based profiling and thereby boost public confidence in the police.

Measures such as identity check receipts and body-worn video devices are being discussed or experimented with in some countries. Such measures should be adopted and reviewed through broad public consultation involving, among others, national human rights institutions and experts in policing and human rights.

Efforts to address ethnic profiling should involve local communities at the grass-roots level and law enforcement agencies must engage with such communities to gain their trust and respect.

Finally, in their communication with the media, the police should be careful not to perpetuate prejudice by linking ethnicity, national origin or immigration status with criminal activity. Since 2007, the Council of Europe anti-racism body has made available guidance for member states on the steps they should take to stamp out ethnic profiling.

End impunity

Secondly, end impunity. All allegations of police misconduct must be effectively investigated to identify and punish those responsible, as the European Convention on Human Rights requires. This would send a clear message to the public that police abuses will no longer be tolerated and the perpetrators will be punished.

One of the most effective ways of achieving this goal is by setting up an independent complaints mechanism which covers all law enforcement officials. Such a body should be independent, capable of gathering evidence in a prompt manner, subject to public scrutiny, and involve victims in the complaints process in order to safeguard their legitimate interests. Its competencies should not be limited to issuing non-binding recommendations to the disciplinary bodies of the law enforcement forces. There is sufficient expertise in Europe on how to set up such bodies and governments must start to tap into it.

These measures are within reach, provided there is political will. What politicians, and in particular ministers of interior, say or omit to say makes a real difference in the police ranks. Politicians should always condemn acts of violence by the police and make it clear that not only will the perpetrators be punished, but also anyone who knows, or should have known about a violent act and failed to prevent or report it.

The knee on the neck that killed George Floyd and many others before him is a stark reminder that racism is always and everywhere an enemy of human dignity. Tackling ethnic profiling by the police would be a good start in addressing the deep-seated causes of racism that continues to affect millions of human beings in Europe.

Strasbourg 29/06/2020
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