Ethnic profiling before the Courts: on some recent insights from France and other countries.  Dr. Andrea Romano. Profesor Asociado de Derecho Constitucional, UB

Today, 21st of March, is the International Day for the Elimination of Racial Discrimination. The rights to equality and non-discrimination are core elements of the international human rights law. However, discriminatory practices are still present, including racial, ethnic, religious and nationality-based profiling. In Catalonia, for instance, one-third of racism and xenophobia cases are perpetrated by the Police (SOS Racisme, here).


1. At a time when political and scholarly debate is engaged in finding solutions to cope with the challenges of the so-called refugee crisis, a number of relevant questions concerning the daily life of migrants in the EU must be equally addressed. One of these questions regards the identification of persons based on ethnic criteria carried out by the police, also known as ethnic or racial profiling. The EU Commission Against Racism and Intolerance defines it 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” (ECRI, 2007, here). This issue becomes particularly salient, though not exclusively, in the context of migration and border control, as (arbitrary) identity checks may represent a far-reaching instrument to detect irregular migrants. However, a proper balance between public policy interests and fundamental rights has to be ensured, so as to guarantee that identity checks comply with – inter alia – the principle of non-discrimination, personal liberty and the right to an effective remedy. In particular, this blog covers the question of the justiciability of ethnic profiling. It seems indeed that one of the most challenging issues is how the Courts can be referred by individuals in order to file complaints over identity checks carried out and how to provide evidence of its discriminatory nature.


2. The opportunity to consider this issue arises as recent judgments in France have tackled the limits of national authorities in carrying out identify checks, whose purpose has often been that of enhancing the fight against irregular migration. Before going into detail, however, it might be useful to provide a brief sketch of the relationship between the Courts and ethnic profiling in the case-law of other countries. In 2001, the Spanish Constitutional Court delivered a very controversial decision – persuasively disputed in the dissenting opinion filled in the same decision – that relied on a somehow “efficiency-based” argument to demonstrate that ethnic or racial characteristics may be a justifiable criterion to carry out identity checks, as they can be a useful index to apprehend irregular immigrants (see the STC 13/2001, especially FJ n. 7, here and here for the UN Committee that subsequently upheld the plaintiff of the claimant). In Germany some administrative Tribunals have recently dealt with this issue, affirming the discriminatory nature of an identity check carried out on a train passenger, as in the case at hand, the colour of the skin (Hautfarbe), was the decisive criterion of the identity control (here). And it might also be relevant to remember a controversial US Supreme Court decision that in 2012 upheld the Law of Arizona introducing – amongst others – the power for the police of the State to stop persons in order to check whether they have a residence permit (Arizona v. United States, here). Furthermore, the salience of discriminatory checks raises serious concerns in the context of border control – and above all – as regards cross-border mobility within the EU. As known, the ECJ has set certain limits on the discretionary powers of national authorities (see Melki, Abdeli). Taking into account this jurisprudence some national Courts have recently declared the discriminatory nature of identity checks on borders area (see the Administrative Tribunal of Stuggart here). However, ethnic profiling in border areas remains a highly contested issue: the Netherlands, for instance, modified its law on foreigners in order to allow the police to intensify its controls in case of a massive arrival of irregular migrants within (internal) border areas as a consequence of the refugee crisis (see here Guild et al for further details).


3. For years, the practice of “contrôle au faciès” has been  contested in France but recently the debate seems to have heightened, being the subject of political campaigns and NGO complaints. However, in recent times, the Defenseur de Droits and several associations have engaged in this issue at length, delivering reports and statistics that illustrate the magnitude of such a phenomenon (see here). In this context, the judiciary and the Conseil Constitutionnel as well have been involved in this conflictive area. To begin with, in November 2016, the Court of Cassation (here) confirmed the judgment of the Court of Appeal of Paris (here), holding the responsibility of the State for discriminatory controls carried out by the police. On that occasion, the Court of Appeal declared – inter alia – the necessity to change the burden of proof (aménagement de la charge de la prevue), which has to be shared between individuals and the administration. According to that view, the regime of proof as regards identity checks has to be based on two stages. On the one hand, once a person submits a plaintiff for a discriminatory control it is necessary to allege the facts that demonstrate a presumption of a suffered discrimination. On the other hand, the administration will have to counter-proof the lack of any discrimination. In substance, the Court of Appeal - now backed by the Court of Cassation - in consideration of the lack of any traceability (traçabilité) of identity checks that potentially hinders the recourse to an effective remedy against a case of discrimination decided to apply the regime on the burden of proof adopted in EU non-discrimination directives and by the ECtHR (Timishev c. Russia, amongst others, is quoted). In so doing the Court, enhanced the judicial remedy against discriminatory controls (see here for a more detailed analysis).


In addition, the recent French experience gives us further details on the justiciability of ethnic profiling. The Conseil Constitutionnel has been asked by the Court of Cassation - by virtue of a question prioritaire de constitutionnalité (QPC) - to clarify the compatibility of identity checks with the Constitution. As a combination between the Criminal Procedural Code (Art. 78-2) and Immigration Code (Art. 611-Ceseda), the judicial police, under authorisation of prosecutors, may check the documents of a foreigner in order to verify his right to stay – and place the individual “en retenue” while verifying his/her status. As the irregular stay of foreigners is not a crime anymore – after the reform of 2012, which followed the Achughbabianruling from the ECJ – the Court of Cassation asked the Conseil to verify whether the request of the prosecutors may be used to establish the irregular status of the foreigner, in consideration of the fact that irregularity is not an offence anymore and, therefore, it would fall outside the scope of Art 78 of the CPC. The Council replied “no”: the provisions at stake cannot be invoked to carry out identity checks on foreigners “aux seules fins de contôler la regularité du séjour des personnes controlees”. Notwithstanding this relevant clarification, it seems that in practical terms it will not lead to a substantial change of the situation. As a matter of fact, it has been argued that the statement of the Conseil will not prevent prosecutors from authorising identity checks of foreigners grounded on the basis of common offences – and – incidenter tantum – verify the irregular status of foreigners and limit their liberty (see here for a thorough commentary).


4. This brief survey of jurisprudence illustrates legal uncertainty and discrimination incidents unjustly suffered by individuals due to physical appearance or cultural signs assumed as potential evidences of an irregular status within the country. This case-law however gives just a very limited perspective over a wider and somehow daily phenomenon, as filling a plaintiff on the grounds of ethnic discrimination during identity checks might be hindered by several obstacles, including, but not limited to, the difficulty in providing evidence of an arbitrary control. The complexities at stake however might be to promote a new research agenda in this area aimed at providing jurists a legal instruments to better distinguish between reasonable and justified identity checks and to remove situations of discrimination. It is important to further elaborate on this issue, as ethnic profiling implies both individual and collective externalities. It does not only constitute a form of individual discrimination, but also produces a chilling effect, discouraging migrants from the use of public services and thus enhancing social marginality. In sum ethnic profiling during identity checks reveals the existence of two objectives of constitutional relevance: to eradicate individual and unjust discrimination and to strengthen social cohesion within immigration societies.