Ethnic Profiling: A Rising Challenge for European Human Rights Law

DOIhttp://doi.org/10.1111/j.1468-2230.2008.00697.x
AuthorJulie Ringelheim,Olivier De Schutter
Publication Date01 May 2008
Ethnic Pro¢ling: A Rising Challenge for European
Human Rights Law
Olivier De Schutter
n
and Julie Ringelheim
nn
Ethnic pro¢ling, de¢ned as the use of racial, ethnic or religious background as a determining
criterion for the adoption of law enforcement decisions, has be en rising signi¢cantly in Europe,
in particular in the wake of the terrorist attacks of 11 September 2001. This article examines
whether European human rights law is well equipped to deal with this challenge, and if not,
how it should be reformed. Against the widely held assumption that personal data protection
legislation is insu⁄cie ntly protective of ‘sensitive’ data relating to race or eth nicity, it explains
instead why combating ethnic pro¢ling has been made more di⁄cult, rather than less, by an
overlyprotective reading of the requirements of data protection laws. It then discusses the addi-
tional measures that Europeanstates could take to address more e¡ectivelythe human rights con-
cerns prompted by the developmentof ethnic pro¢l ing.
In 1999, Mr Timishev, a Chechen lawyer living in Nalchik, in the Kabardino-
Balkaria Republic of the Russian Federation, travelled by carfrom the Ingushetia
Republic to Nalchik.When reachingthe administrative borderof the Kabardino-
Balkaria Republic, his car was stopped at a checkpoint and entry was refused to
him: tra⁄c police o⁄cers had received an oral instruction from the Ministry of
the Interior of Kabardino-Balkaria Republic not to admit persons of Chechen
ethnic origin. The NalchikTown Court dismissed MrTimishev’s complaint that
this was discriminatory: in its view, the order was aimed at preventing the pene-
tration into towns and villagesof persons having terrorist or antisocial aspirations.
International litigation followed. Five years after Mr. Timishev ¢led an applica-
tion against Russia, the European Court of Human Rights found that Russian
o⁄cers had violated the non discrimination provision of Article 14 ECHR in
combination with the freedom of movement guaranteed in Article 2 of Protocol
n14.The order, which barred passage to any person of Chechen ethnicity or per-
ceived assuch,‘represented a clear inequalityof treatment in the enjoymentof the
right to liberty of movement on account of ones ethnic origin’.
1
In July 2001, in response toan i n£uxof asylum seekers of Czech nationality,the
vast majority of whom were of Roma ethnic background, the United Kingdom
organised an operation at Prague Airport. Following an agreement with the
Czech Republic, British immigration o⁄cers were authorised to give or refuse
leave to enter the country to passengers before they boarded £ights to the UK.
n
Professor of Law,University of Louvain(UCL) and College of Europe(Natolin).
nn
Senior Fellow, National Fund forScie nti¢cResearch, Centre for Legal Philosophyat the University
of Louvain (UCL).The authors aregrateful to Daniel Moeckli for provision of information and tothe
two anonymous reviewersfor comments.
1Timi shev vRussia Eur Ct HR (2nd section), App Nos 55762/00 and 55974/00, judgment of 13
December 2005 (¢nal on 13 March 2006) y54.
r2008 The Authors.Journal Compilation r20 08The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2008) 71(3) 358^384
The avowed aimof the exercise was tobar from entry travellers who intended to
visit the countryfor a purposenot within the Immigration Rules, includingthose
who wished to claim asylum in the UK. In practice, immigration o⁄cers operat-
ing at Prague Airport had a di¡erent attitude depending on whether passengers
appeared to be of a Roma background: Roma were subjected to longer and more
intrusive questioning, they wererequired to provide proofof matters whichwere
taken on trust from non -Roma, and a large proportion of them were refused leave
to enter. In e¡ect, the overwhelming majority of those who were barred from
entering the country were Roma. On 9 December 2004, theHouse of Lords held
that British immigration o⁄cers operating at Prague Airport had discriminated
on racial grounds, contrary to section 1(1)(a) of the Race Relations Act 1976,
against Roma seeking to travel from that airport to the United Kingdom, by
treating them more sceptically than non-Roma when determining whether to
grant them leave to enter the country.
2
In the wake of the 11 September 2001 terrorist attacks against NewYork and
Washington, the Germanauthorities, in an attempt to identify‘sleepers’ of terror-
ist organisations, decided to resort to the so-called Rasterfahndung method, ie the
screening by the police of personal data sets of public or private bodies in order to
track individuals presenting suspects’ features. The criteria established at the
national level for this operation included being male,Muslim, nationalof or born
in one of 26 listed cou ntries with predominantlyMuslim population, a current or
former student, and legal resident in Germany. Numerous institutions, including
universities, employers, health and social insurance agencies, were required to
provide to the police the personal records of all individuals corresponding to the
de¢ned pro¢le. The operation did not result in any arrest or criminal charge for
terrorism-related o¡ences.
3
On 4 April 2006, the Federal Constitutional Court
ruled that the Rasterfahndung was in breach of the individual’s fundamental right
of self-determination over personal information (Article 2(1) and 1of the Grund-
gesetz) and therefore was unconstitutional.
4
All these incidents have in commonthat in all three cases, personswere singled
out by law enforcement o⁄cers not because of their individual behaviour but
rather because of their ethnicity or religion. Ethnic or religious background was
used as a determining criterion for law enforcement decisions. O⁄cers assumed
that there was a correlation between membership in a particular ethnic or reli-
gious group and propensity to commit certain crimes or act in a way considered
undesirable. These incidents are but a few instances of a rising phenomenon in
Europe, that of ‘ethnic pro¢ling’. Increasingly, certain individuals come to be
2R (EuropeanRoma RightsCentre) vImmigration O⁄cerat PragueAirport(United NationsHigh Commis-
sionerfor Refugees intervening) [2004] UKHL 55.
3 See D. Moeckli,‘Discrimination Pro¢les: Law EnforcementAfter 9/11and 7/7’(2005) 5 European
Human RightsLaw Review 517; D.Moeckl i,‘Terrorist pro¢ling and the importance of a proactive
approach to human rights protection’ (16 December 2006), available at the Social Science
Research Network (SSRN): http://ssrn.com/abstract=952163 (last visited 18 February 2008);
J. Goldston,‘Ethnic Pro¢li ng and Counter-Terrorism:Trends, Dangers and Alternatives (2006),
at 5^6. Available at http://www.soros.org/resources/articles_publications/articles/counterterrorism_
20060606 (last visited 18 February 2008).
4 Decis ionof 4 April 200 6 (1BvR 518/02)(200 6)59 NeueJuristischeWochenschrift1939.
Olivier De Schutter and Julie Ringelheim
359
r2008 The Authors.Journal Compilation r20 08The Modern Law Review Limited.
(2008) 71(3) 358^384

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