May 02, 2018
By Sien Devriendt and Tess Heirwegh, PhD researchers, Human Rights Centre (Ghent University)
The Human Rights Centre of Ghent University has submitted a third party intervention in the case of Zeshan Muhammad against Spain. The case concerns the use of ethnic profiling by law enforcement officers. The applicant, a Pakistani citizen, was stopped for a police identity check solely on the basis of his skin colour. When Mr. Muhammad asked to explain the reasons for the identity check, the police officer answered “because you are black”. He initiated state liability proceedings, but his complaints have been dismissed at first instance as well as on appeal. Furthermore, he lodged an amparo appeal with the Constitutional Court, but to no avail. The applicant holds that there has been a violation of his right not to be discriminated against on grounds of race, colour or ethnic origin (Article 14 or, alternatively, Article 1 Protocol 12 jo. Article 8 of the Convention). Moreover, he complains under Article 8 of the Convention that the State failed to take all reasonable steps to uncover any possible racist motives behind the incident. Finally, he states that there has been violation of his right to a fair hearing (Article 6 § 1 of the Convention). In this post, we highlight our key arguments. The full text of the third party intervention can be found here.
Firstly, we submit that the case at hand provides a unique opportunity for the Court to name and recognize the seriousness of ethnic profiling as well as the harm it entails. In particular, we ask the Court to take into account its widespread nature across Europe. As societies become more multi-ethnic, this practice appears to be increasing, in particular in the sphere of anti-immigration and counter-terrorism measures. Furthermore, we invite the Court to closely examine the damaging social effects of ethnic profiling. It feeds negative stereotypes about minorities, contributing to stigmatization, discriminatory attitudes and the spread of xenophobia. Moreover, we submit that the Court should take into account its multiple manifestations: formal vs. informal; explicit vs. implicit: cases where ethnic characteristics are the only criteria to engage in certain conduct or activities vs. cases in which ethnic characteristics are used in combination with other factors.
Secondly, we list a number of international and European organizations which recognize that ethnic profiling is a serious human rights problem. Some of them – such as the UN Human Rights Committee, the EU Network of Independent Experts on Fundamental Rights and the ECRI – stated that ethnic profiling amounts to racial discrimination and thereby violates European and international standards. Several organizations highlight the importance of a preventive approach to limit and manage ethnic profiling. Furthermore, it is essential to provide a strong legal framework and to investigate, prosecute and punish cases of ethnic profiling in a thorough and effective manner.
Thirdly, we invite the Court to explicitly name ethnic profiling as a violation of the ECHR and to develop the different obligations resting on the State in this area, thereby building on the previous case of Timishev against Russia, in which the Court considered that racially discriminatory practices by State agents violated the Convention.
The Court is invited to examine the incident from the standpoint of both direct and indirect discrimination. We argue that, under Articles 1 Protocol No. 12 and 14 ECHR, any justification provided by the State should be subjected to the strictest scrutiny. In the absence of a policy or instruction explicitly based on race, we submit that the Court should scrutinize practices that are nonetheless indicative of direct racial discrimination. We also ask to consider whether the law enforcement officers had solely or mainly targeted members of a group defined along ethnic lines. Where a case of alleged ethnic profiling does not amount to direct discrimination, we argue that it should also be examined from the viewpoint of indirect discrimination. In this regard, the Court already stated that in cases of alleged indirect discrimination, less strict evidential rules should apply to produce prima facie evidence, capable of shifting the burden of proof. This is especially important given the states’ lack of data collection on ethnic profiling and because law enforcement actions usually lie within the exclusive knowledge of the authorities. Once established or presumed that a measure indirectly disadvantages specific ethnic groups, we argue that police ethnic profiling is likely to fail the Court’s reasonability test. It does not seem suitable to achieve legitimate aims such as protecting public safety, preventing crime and controlling illegal immigration because it is both over- and under-inclusive. Moreover, due to its damaging effects, ethnic profiling is highly harmful to human rights and therefore not strictly necessary or the least restrictive means to achieve the legitimate goals pursued.
We also argue that the Court should seize the opportunity offered by this case to develop a framework of preventive positive obligations under Article 8 jo. Article 14 ECHR (or, alternatively, under Article 1 Protocol 12) to protect against these kinds of human rights violations. The Court has previously held that, if the risk of a particular human rights violation is systemic in nature, the State should set up an adequate legal and administrative framework to prevent the occurrence of such violations in the first place (e.g. in the context of sexual abuse of minors, human trafficking, hazardous activities and occupational health risks). This reasoning was also applied to the context of policing activities in the Court’s Grand Chamber ruling of Giuliani and Gaggio against Italy. The specific organisation of such framework is a matter that can be left to the State’s margin of appreciation, on condition that it is capable of providing effective protection against the human rights violations involved in cases of ethnic profiling. However, taking into account the findings of the Court on such framework in other contexts (e.g. the use of firearms and sexual abuse of minors), it is evident that this includes training for police officers on ethnic profiling issues and useful detection and reporting mechanisms. Furthermore, the Court should require States to take allegations of ethnic profiling seriously. For this reason, as with cases of alleged racist violence, it would be in line with the Court’s case law to similarly impose a procedural positive obligation on States to investigate allegations of ethnic profiling.
 The team for this intervention consisted of Prof. Dr. Eva Brems, Dr. Valeska David, Sien Devriendt, Tess Heirwegh, Yaiza Janssens and Dr. Laurens Lavrysen.