Magdalena Maier
Legal & Policy Trainee
Introduction
Racial profiling is prevalent in the EU. According to the second Being Black in the EU report by the FRA, 58% of the respondents stopped by the police in the 12 months before the survey perceived the last stop to be racially motivated.
Defined in ECRI’s General Policy Recommendation N° 11 On Combating Racism And Racial Discrimination In Policing as “the use by the police, with no objective and reasonable justification, of grounds such as race, colour, language, religion, nationality or national or ethnic origin in control, surveillance or investigation activities”, racial profiling is discrimination on the grounds of race or ethnic origin. It also promotes and perpetuates racist incidents as well as racial prejudice and stereotypes and negatively affects the attitudes and well-being of individuals and communities, according to the CERD Committee. Furthermore, it decreases trust in the police and therefore deters public cooperation with them.
For this reason, it is vital that racial profiling is addressed and eliminated and that persons affected by it are provided with an effective remedy. The recent judgement of the European Court of Human Rights (ECtHR) in the case of Wa Baile v. Switzerland marks an important development in this regard. In this decision, the Court held for the first time that an identity check against a racialised person was racial discrimination and consequently violated the substantive aspect of Article 14 taken in conjunction with Article 8 of the European Convention on Human Rights (ECHR).
In this blog post, I will take the Court’s judgement as a basis to investigate the ways Equality Bodies can have a role in tackling racial profiling and providing access to justice and remedies for victims, in particular through contributing to shifting the burden of proof in discrimination cases. I will first summarise and analyse the case, before delving into the question of how Equality Bodies’ work can showcase the existence and systemic nature of racial profiling and the lack of an objective justification for discriminatory law enforcement actions.
Wa Baile v. Switzerland – A groundbreaking judgement
In 2015, the applicant, Mr Wa Baile, was stopped on his way to work by three police officers for an identity check at the Zurich railway station. As justification for the check, the officer in charge stated that “a dark-skinned male person has come to my attention. This is due to the behaviour of the person because he looked away and wanted to pass me once he realised that I was a police officer.” Mr Wa Baile felt that the check was racially motivated, as no other individuals were stopped. Therefore, he refused to reveal his identity. As a consequence, he was fined 100 Swiss Francs for not complying with the police orders.
Mr Wa Baile challenged the penalty order in front of the Zurich District Court and also started administrative proceedings to declare the identity check unlawful. However, in all instances, his claims were rejected without a proper investigation of whether the identity check was discriminatory. Solely the Administrative Court of the Zurich Canton decided that there was no objective justification for it. Nevertheless, the Court left the question of whether the check had a racist motive unanswered. After all domestic remedies were exhausted, Mr. Wa Baile initiated proceedings in front of the ECtHR.
In its judgement, the ECtHR found that given the Administrative Court’s ruling that there was no objective justification for the identity check and as Mr Wa Baile complained about racial discrimination, the authorities were under the obligation to investigate whether the check was carried out of a discriminatory motivation. As the Swiss authorities failed to do so, it ruled that there had been a violation of the procedural aspect of Article 14 taken in conjunction with Article 8 ECHR.
The Court then considered whether the identity check also violated the substantive aspect of Article 14 taken in conjunction with Article 8, i.e. whether the act itself was discriminatory. Here, the ECtHR took into account that there was no adequate legal and administrative framework in place in Switzerland to prevent racism and racial profiling in the police. This was consequently susceptible to lead to discriminatory identity checks. Moreover, it considered the Administrative Court’s finding that the identity check could not be justified on any objective grounds and, third, that several international human rights bodies as well as the third-party interveners reported about and condemned the prevalence of racial profiling in Switzerland. Hence, there was a strong presumption that the identity check was carried out with a racist motivation. Therefore, the burden of proof of having to show that the check was justified shifted to the State. However, the State could not refute the presumption of unjustified discrimination during the proceedings.
Consequently, the ECtHR found a violation of the substantive aspect of Article 14 taken together with Article 8 ECHR. It explicitly differentiated the case from its previous decision in Basu v. Germany, where it also found a procedural violation but argued to be incapable of deciding whether the identity check was carried out of a racist motivation. In particular, it stated that the pivotal difference between the two cases was the judgement of the Administrative Court and the consequences resulting thereof.
The shift of the burden of proof in racial profiling cases
The judgement, seen together with previous judgements in racial profiling cases by the Court, marks a significant development. As already stated, the groundbreaking change in the Wa Baile case came from the Court’s acknowledgement that there was a strong presumption of racial discrimination and the burden of proof therefore shifted to the respondent. Imposing the applicant with the burden of proof to show the individual racist motivation of the police officers in question, as done in the cases of Basu v. Germany and Muhammad v. Spain, does not reflect the structural nature of systemic racism which amounts to conscious as well as subconscious institutionalised biases, as defined by the CERD Committee. In this sense, the judgement reflected the systemic nature of racial profiling which is not necessarily linked to individual police officers acting out of an open racist motivation.
In its case law, the Court established that “once the applicant has shown a difference in treatment it is for the Government to show that it was justified” (see for example, D.H. and others v Czech Republic, para.177). To assess what constitutes prima facie evidence of a difference in treatment to shift the burden of proof, the Court takes into account all facts and submissions made by parties. This can be based on a body of sufficiently serious, precise and corroborative evidence or unrebutted presumptions.
In the Wa Baile decision, the Court considered, among others, the findings on the prevalence of racial profiling by international and national human rights bodies. This is therefore, where Equality Bodies can be of added value: to ensure that in future cases, the Court cannot leave the question of whether an act amounted to racial profiling unanswered for lack of information due to an insufficient investigation by the State authorities (Basu v. Germany, para. 38), the structural nature and widespread existence of racial profiling in European countries need to be consistently showcased. The more awareness there is on the structural and subconscious nature of racial profiling, the more likely a shift in how the Court assesses racial profiling cases, and, accordingly, a shift of the burden of proof in individual cases will occur. This requires awareness-raising of the existence of systemic and structural racism as well as reliable data and research on the topic. Equality Bodies with their various functions in the legal, policy and societal field are in an excellent position to fulfil this role.
Nevertheless, according to the ECtHR, the existence of data in itself may not be enough to shift the burden of proof. Consequently, it is important to note that the judgement by the Administrative Court of the Zurich Canton, stating that the identity check did not have an objective justification, had a significant impact on the Court’s decision to shift the burden of proof and find that the identity check was racially motivated (see also Wa Baile V Switzerland: An Implicit Acknowledgment Of Racial Profiling As Structural Discrimination). Another essential avenue for Equality Bodies’ engagement would therefore be to showcase and support findings that discriminatory police acts did not have an objective justification.
The role of Equality Bodies
So, how can Equality Bodies showcase the existence and systemic nature of racial profiling and the lack of an objective justification of discriminatory law enforcement actions?
In 2019, Equinet published a factsheet on the work of Equality Bodies on ethnic profiling in Europe. This factsheet highlighted that even though the mandate of many Equality Bodies is limited with regard to law enforcement activities, they find ways to play an important role in this context.
- In light of the high importance the ECtHR attributed to the Swiss Administrative Court’s finding that there was no objective justification for the identity check, Equality Bodies’ strategy to effectively address racial profiling could include aiming for national courts in their countries to make comparable findings in racial profiling cases. In this context, Equality Bodies’ litigation powers, including bringing cases in their own name or assisting individuals in their complaints, are vital.
- On top of that, strategic litigation could serve as an important tool for Equality Bodies to showcase the systemic underlying nature of racial profiling. In this sense, the applicant and his team understood the case of Wa Baile not as a case to receive individual justice but to demonstrate the widespread existence of institutional and structural racism in Swiss society. This case therefore acts as a crucial example of successful strategic litigation which could form the basis for similar action by Equality Bodies.
- Furthermore, Equality Bodies with a semi-judicial function can play a crucial role when investigating and deciding upon cases, raising awareness of the existence of racial profiling. Moreover, their decisions can solidify findings that a certain law enforcement act does not have an objective justification and therefore contribute to the shift of the burden of proof in court proceedings.
- Besides, third-party interventions in court cases can be an important means to support courts’ knowledge and understanding of the structural nature of racial profiling and demonstrate the lack of an objective justification for discriminatory law enforcement activities. Numerous Equality Bodies have the power to act as amicus curiae in front of national courts as well as the ECtHR and, accordingly, to bring arguments in favour of shifting the burden of proof. In fact, the French Defender of Rights filed an amicus curiae submission in the case of Wa Baile.
- Furthermore, Equality Bodies’ research and data collection function is vital in revealing the prevalence of problematic practices and acting as a reference point for advocacy and litigation. In the Wa Baile decision, the ECtHR explicitly highlighted that to determine whether an act was discriminatory, it can take into account statistical data and records of independent national and international bodies which address this question. Equality Bodies with their specific expertise on equality and non-discrimination issues as well as their standing which often allows them access to data not publicly available have a critical role in this regard. Apart from collecting their own data, Equality Bodies also play a significant role in advocating for the collection of more robust data by State authorities.
- Besides, Equality Bodies’ function of taking complaints from anyone who experiences discrimination can play an important role. According to Equinet’s report on the collection and use of complaints data by Equality Bodies, 86% of the Equality Bodies participating in the survey highlighted that they collect complaints data to make discrimination in their countries visible, to advocate for policy measures or raise public awareness. This data should be published in accordance with the minimal guidelines on improving complaints data collection by Equality Bodies. However, according to a recent study by the FRA on addressing racism in policing, most Equality Bodies do not record or publish complaints on racist policing and only very few Equality Bodies provided data on racial profiling incidents. This might be related to their limited mandate on law enforcement activities.
- Equality Bodies can also use their awareness-raising activities to increase knowledge in society about the prevalence of racial profiling in their countries, for example through the organisation of campaigns or conferences. Besides, their awareness-raising function can be an essential tool to reach out to particularly affected groups. This is especially important to address the lack of trust in public institutions and enable and encourage reporting or facilitate access to other bodies with the mandate of protecting victims.
- Furthermore, Equality Bodies can use their policy advice function to make recommendations to policymakers and legislators. This can highlight the gaps in the legislative and policy framework of a country, a fact which has been taken into account by the ECtHR in the Wa Baile case.
- Likewise, through their equality mainstreaming function, Equality Bodies can make recommendations to policing institutions or cooperate with the police. For instance, through trainings, Equality Bodies can provide guidance to law enforcement personnel on racial profiling as well as on how to collect data and conduct research on the issue. Collaborating with law enforcement on research projects may also enable Equality Bodies to get access to data which may otherwise be withheld. Equality Bodies can also issue public statements on racial profiling to the police or police oversight bodies. This increases awareness and visibility of the issue. In this context, Equality Bodies could focus on getting law enforcement authorities to acknowledge that an action could not be objectively justified. Such a finding could serve as a crucial argument for the shift of the burden of proof in racial profiling cases.
Looking forward: How to address remaining challenges
As mentioned before, the case of Wa Baile was brought forward by the applicant not primarily to receive individual justice but to hold up the mirror of institutional and structural racism to the public, the institutions and civil society. As shown, Equality Bodies may play a critical role in this, demonstrating and addressing the prevalence and systemic nature of racial profiling and institutional racism in the police in European countries. Nevertheless, Equality Bodies face various challenges for the effective and constructive exercise of their functions.
One key challenge in addressing racial profiling is that many Equality Bodies do not have the mandate to deal with actions by law enforcement. Unfortunately, while the recently adopted Directives on Standards for Equality Bodies strengthen the functions and powers of Equality Bodies that already have a mandate in this area, they do not change the scope of the underlying Directive 2000/43 (Racial Equality Directive), which introduced Equality Bodies’ mandate with regard to discrimination on the grounds of racial and ethnic origin. This means that Members States are still not required by EU legislation to extend Equality Bodies’ mandate to law enforcement activities. As argued in an Equinet Equality Blog post and in the Equinet brief on Assessing Gaps in the Racial Equality Directive, it would therefore be crucial to widen Equality Bodies’ mandate to include the activities of public authorities.
Until then, Equality Bodies can and should use all possible functions they have at hand under their limited mandate to showcase the prevalence and structural nature of racial profiling. As demonstrated throughout this blog post, Equality Bodies can find creative ways to address the problem of ethnic profiling by using competencies such as research, awareness raising or public statements.
Future cases by the ECtHR, such as the pending case of Seydi and Others v France, where the French Defender of Rights also intervened, can hopefully contribute to clarifying the role Equality Bodies can play in addressing and eliminating racial profiling.
The views on this blog are always the authors’ and they do not necessarily reflect Equinet’s position.