December 16, 2022
by Bea Streicher
Racial profiling constitutes a specific form of racial discrimination, which the European Commission against Racism and Intolerance (ECRI) defines as “use by the police, with no objective or reasonable justification, of grounds such as ‘race’, colour, language, religion, citizenship or national or ethnic origin in control, surveillance or investigation activities” (ECRI General Recommendation 11, § 1). Numerous reports and studies have shown that racial profiling is systemic and a commonly used by law enforcement agencies across Europe (see European Network Against Racism). In 2019 and 2020, the EU’s Fundamental Rights Agency (FRA) reiterated its concerns of previous years over discriminatory ethnic or racial profiling in a number of European countries including Belgium, Germany, Finland, the Netherlands, Sweden and the United Kingdom (FRA Your Rights Matter: Police Stops).
Amnesty International has documented discrimination against people belonging to racialised groups in several countries in Europe over the past two decades, including significant concerns around police practice such as discriminatory profiling, targeted policing, and failures to adequately investigate the cases of those who suffered discriminatory treatment by the police, and to provide remedy (see on Belgium, France, Spain, United Kingdom; see also the joint Human Rights Guide by Amnesty International and the Open Society Foundations for guidance on researching racial and religious discrimination).
The European Court of Human Rights (the Court) itself has confirmed that racial profiling can result in “institutionalised racism” (see Lingurar v. Romania, § 80) and consistently emphasised that “racial discrimination is a particularly egregious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction” (see Sejdić and Finci v. Bosnia and Herzegovina, § 43; see also Timishev v. Russia, § 56). In two recent cases from October 2022 the Court has dealt with allegations of racial profiling in Germany and Spain. In Basu v. Germany the applicant claimed that an identity check on a train by the German Federal Police had been carried out on racial grounds. The case Muhammad v. Spain concerned similar allegations regarding an identity check in a busy area of Barcelona (for a more detailed description of the facts see the post of Mathias Möschel). This article will examine these judgments in their broader regional context. It will focus on questions regarding proof and evidence connected to allegations of racial profiling and states’ positive legal obligations, including to ensure adequate legal framework against racial discrimination.
The burden of proof in discriminatory identity checks
According to the Court, States have a procedural obligation to ensure independent investigations under the prohibition of discrimination taken together with the right to the respect for private life (Art. 14 in conjunction with Art. 8 ECHR), if a person has an “arguable claim” that they have been “targeted on account of specific physical or ethnic characteristics” (Basu, § 25). The Court applies the same reasoning when a violation of the prohibition of discrimination taken together with the prohibition on torture or inhuman or degrading treatment (Art. 14 in conjunction with Art. 3 ECHR) is at stake and States have to investigate whether “ethnic hatred or prejudice may have played a role in the events” (B.S. v. Spain, § 58; Boacă and Others v. Romania, §§ 105-106; see also Sabalić v. Croatia, §§ 94 and 98). We will leave aside the interesting question of which criteria the investigations and independent mechanism always have to fulfil despite States’ margin of appreciation in determining the manner in which to organise their system to ensure compliance with the Convention (see Bouyid v. Belgium; see Amnesty International Police Oversight). Instead, we will focus on how the Court has responded to questions of proof and evidence at the intersection of the procedural and substantive tenets of the prohibition of discrimination.
When tackling the question of how to identify an “arguable claim” of racial profiling, the Court has stated that the threshold of an “arguable claim” may notably exist where the person concerned submitted that they had been the only person(s) subjected to a check and where no other grounds for the check were apparent (see Basu, § 25). In Timishev v. Russia the Court has stressed “that no difference in treatment which is based exclusively or to a decisive extension a person’s ethnic origin is capable of being objectively justified in a contemporary democratic society (…)” (Timishev v. Russia, § 58). In contrast, the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance has referred to racial profiling as “the practice of police and other law enforcement officers relying, to any degree, on race, colour, descent or national or ethnic origin as the basis for subjecting persons to investigatory activities or for determining whether an individual is engaged in criminal activity“ (Durban Declaration, § 72, italics added).
The advantage of the later definition is that it leaves no room for personal attributes such as presumed race to influence the decision of the law enforcement officer. Instead, it obliges the police to justify identity checks and other police actions only with a reasonable suspicion based on objective criteria (see Observations of Amnesty International). This approach also meets ECRI’s recommendation for states better to “introduce a reasonable suspicion standard, whereby powers relating to control, surveillance or investigation activities can only be exercised on the basis of a suspicion that is founded on objective criteria” (ECRI General Recommendation 11, § 3) and its recommendation that the notion of objective and reasonable justification of racial discrimination should be interpreted as restrictively as possible with respect to differential treatment based on grounds such as race, colour, language, religion, nationality or national or ethnic origin (see ECRI General Recommendation 7, § 8).
In addition, considering the systemic and institutionalised nature of racial profiling and racial discrimination in police practice more generally, the regional and national context should also be considered in relation to the grounds for ID checks. For example, in France (Défenseur des droits report, I. A. 2), studies reveal young people aged 18-24 years who were perceived as Black and Arab were subjected to a significantly higher number of identity checks on by police; a recent study in England and Wales (Ethnicity Facts Figures) shows that Black people are seven times more likely to be stopped and searched by police than white people; in other countries such as Germany or Spain, the lack of data and refusal of the authorities to conduct a comprehensive study on racial profiling within law enforcement impedes scrutiny but studies on a regional level and specific groups (see e.g. Afrozensus 2020) indicate similar discriminatory practices. This context must be considered when assessing if there is an arguable claim of racial profiling.
Interestingly, in the decision Basu v. Germany, the Court held that Mr. Basu had an “arguable claim” and that Germany had violated its obligations to ensure an effective investigation into allegations of racial profiling by police violating his right to non-discrimination and to private life (Article 14 in conjunction with Article 8 ECHR). However, it was “unable to make a finding” as to whether there had been a substantive violation of the prohibition of discrimination (Basu, § 38). This failure to find a breach was criticised by Judge Pavli in his partly dissenting opinion (Basu, Partly dissenting opinion of Judge Pavli, §§ 3 – 8). Judge Pavli argues that the burden of proof should be allocated to the respondent state if there is an arguable claim of discriminatory treatment by the applicant. In contrast to the majority’s vote that focusses on “racist attitudes” of the police officers involved, he rightly points out that “discrimination in this context may not be driven necessarily by a police officer’s individual and conscious attitude or hostility against a particular racial or ethnic group; it may also be the result of biased (or at least permissive) internal police guidelines, practices or attitudes, whether formalised or merely tolerated by the hierarchy” (Basu, Partly dissenting opinion of Judge Pavli, § 7). This approach is also better in line with the definition of racism under the UN International Convention on the Elimination of All Forms of Discrimination (ICERD), which reads as follows: “the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life” (ICERD, § 1). According to ICERD, racism is therefore not only defined by the intent of an action or omission, but also the effect.
On the basis that racial profiling may be the result of individual conscious bias, but also of unconscious bias or institutional practices, it would place an unfair and often impossible burden on victims themselves to collect evidence that there was no objective and reasonable basis for the police operation. After establishing the facts allowing for the presumption of discrimination by the person affected, the onus should then shift to the state to prove that discrimination did not take place, not least since the information as to the justification for the identity checks is in the hands of the state, as it is the institution responsible for policing instructions and practices. Also it is state agents who take the decision to carry out identity checks or other police operations which may interfere with the rights of the affected person. These principles on the reversal of the burden of proof in the discrimination context are also firmly established by the European Commission against Racism and Intolerance and European Union legislation (see EU Directive 2000/43/EC, Art. 21; see also ECRI General Recommendation 7, § 11). Without these principles being upheld, an unacceptable burden would be placed on victims to obtain evidence, one which would obstruct and impede their access to justice.
State’s positive obligations to combat racism and intersecting forms of discriminations
The Court has held in many cases that the authorities’ positive obligations under the Convention may include a duty to establish an adequate legal framework affording protection to people at risk of discrimination (see Volodina v. Russia, §§ 77 and 85, see also O’Keeffe v. Ireland, § 148) or providing effective safeguards against arbitrary treatment by State agents (see Giuliani and Gaggio v. Italy, § 209).
When analysing the judgments of Basu v. Germany and Muhammad v. Spain, one common aspect is that the police checks of both applicants were based on an overly broad legal basis. The institutional law on protection of public safety in force at the time of the incident in Spain, permitted identity checks to be made by the police in their function of investigation or prevention provided that the knowledge of the identity “is necessary for the exercise of the public-safety functions entrusted to the police” (Muhammad, § 33). The basis for Mr. Basu’s identity check, §23 of the German Federal Police Act (FPA), allowed the establishment of the identity of a person “within the border area, up to thirty kilometres behind the border, to prevent or stop unlawful entry into the federal territory” (Basu, § 10, corresponds to the current wording). As ECRI noted in its 2019 monitoring report on Germany, this law gives police the power to “stop people without any suspicion of having committed and offence or misdemeanour, or presenting a danger to public security”. Similar problematic, vague legal bases for ID checks are also present in other European countries). For example, in Austria, police are allowed to carry out ID checks “if, based on the circumstances, it can be assumed that the person concerned has crossed the internal border or will cross it in the course of a travel movement that is still ongoing” (Sicherheitspolizeigesetz, § 35, unofficial translation); in France the rule is “if the person is preparing to commit a crime or offense” and “to prevent a breach of “public order“ (Code de procedure pénale, Art. 78-2, unofficial translation); and in Switzerland, police may stop a person without any specific suspicion (Code of Criminal Procedure, Art. 215, see also ECRI Report on Switzerland, §§ 69 – 72).
The Court’s own case law, however, establishes that stopping and searching a person in a public place without reasonable suspicion of wrongdoing is a violation of the right to privacy (Article 8 ECHR) and that the powers of stop and search are not “in accordance with the law” (Article 8.2 ECHR) if they are not “sufficiently circumscribed or subject to adequate legal safeguards against abuse” (see Gillan and Quinton v. UK, §§ 83 – 87). Also, the ECRI recommends to “introduce a reasonable suspicion standard, whereby powers relating to control, surveillance or investigation activities can only be exercised on the basis of a suspicion that is founded on objective criteria” (ECRI General Recommendation 11, § 3, see also Observations of Amnesty International, VII).
With regard to national legislation, policies and practices, including at operational level, states should limit the discretion for law enforcement officials in order to prevent the legislation from being a gateway for racism and other forms of structural discrimination. Therefore, as the CERD Committee outlines in its General Recommendation 36, in addition to establishing a prohibition on racial profiling, law enforcement agencies should be urged to establish a solid policy framework and guidance for decision making, including a definition of what constitutes reasonable and objective suspicion and an outline of legitimate criteria that may be considered of whether or not to stop a person (see ICERD General Recommendation 36, § 38). Otherwise, vague formulations can result in police abuse of power, including when conducting arbitrary identity checks (see Amnesty International’s research on Belgium, France, Spain, United Kingdom).
In addition, in order to comprehensively fulfil their non-discrimination obligations, states need to take into account intersecting forms of discrimination (see Report by the Special Rapporteur, § 50). The concept of intersectionality, in short, explains that social identities such as gender, class, race, age, disability and sexual orientation can overlap, and thus also discriminatory practices which consequently can reinforce each other, entrenching power imbalances in society (K Crenshaw, Demarginalizing the Intersection of Race and Sex). The heightened risk of abuse with regard to intersecting forms of discrimination also needs to be considered in the context of law enforcement (see, for example, Amnesty International Covid-19 crackdowns, p. 22 f.).
As ICERD notes, racial profiling not only has negative and cumulative effects on the attitudes and well-being of individuals and communities, but also may be ineffective and counterproductive as a general law enforcement tool. People who perceive that they have been subjected to discriminatory law enforcement actions tend to have less trust in law enforcement which, as a consequence, may result in the reduced reporting of crimes (ICERD General Recommendation 36, § 26, see also Report of the Secretary-General, Implementation of the International Decade for People of African Descent, § 23). The state’s duty to protect all people thus becomes unfulfillable.
The Court rightly endeavours that the protection against racism shall not “become theoretical and illusory” (Basu, § 35). One crucial aspect to achieving this aim would be to develop its jurisprudence further, taking into account the international definition of racial discrimination. As ECRI’s Recommendation 11 shows, when doing so, the perspective of people affected by discrimination is essential (ECRI General Recommendation 11, § 14). This has to translate into actually shifting the burden of proof if there is an “arguable claim” of racial profiling and acknowledging that racial profiling is systemic, introducing a reasonable suspicion standard for all control, surveillance and investigation activities in law and practise, and scrutinising institutional policing practices. These requirements need to be considered and put into practice by the member states, in order to ensure that racial profiling can be addressed and people subjected to racial discrimination can be better protected.
I thank my Amnesty International colleagues Kathi Kirchberger, Rym Khadhraoui, Esther Major, Daniel Canales Anzola and Benedict Braunschneider for their helpful contributions.