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In Basu v. Germany (215/19; Judgment 18.10.2022 [Section III Information Note published; Text of 3rd Section here and here], the European Court of Human Rights (ECHR) considered the applicability of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life) to the following set of facts:
In July 2012 two police officers carried out an identity check on the applicant, a German national of Indian origin, and his daughter, on a train which had just passed the border from the Czech Republic to Germany. The applicant asked the police officers why he was checked, and they said it was a random check. One of them later added that cigarettes were frequently smuggled on that train, but confirmed that there had not been any specific suspicion in respect of the applicant in this regard. The administrative courts declined to examine the merits of the applicant’s complaint about having been treated in a discriminatory manner by the identity check. (Basu v. Germany)
The ECHR concluded that (A) "the identity check by the police under these special circumstances had had sufficiently serious consequences for his right to respect for his private life. The identity check in question therefore felt within the ambit of Article 8;" and (B) "the State authorities had failed to comply with their duty to take all reasonable measures to ascertain through an independent body whether or not a discriminatory attitude had played a role in the identity check, and thus had failed to carry out an effective investigation in this regard." (Ibid.).
The folks at the Völkerrechtsblog have now confronted this issue in a very interesting online symposium: Racial Profiling in Germany. "In this symposium, scholars reflect on the European Court of Human
Rights’ recent Basu v. Germany decision. They situate the decision
within recent conversations surrounding race and racism in Germany and
in international human rights discourse more broadly." (Racial Profiling in Germany Symposium). The Symposium Introduction provides a nice description:
In Basu v. Germany, an international body reminded Germany once again of its less-than-perfect human rights record regarding racial discrimination. In this case, the European Court of Human Rights (ECtHR) ruled that Germany had violated the right to privacy according to Article 8 of the European of Human Rights (ECHR) in conjunction with the right to non-discrimination (Article 14 ECHR) by failing to provide a proper and independent investigation into allegations of racial profiling. This symposium takes the decision as a starting point to reflect on the practice of racial profiling in Germany and, more generally, on the place of race and racism in Germany and in international human rights discourse. (Racial Profiling in Germany )
The excellent symposium essays seek to translate the practices at issue in Basu v. Germany into the language of race and racism (and this appears to be an easy case in that respect given the sensibilities of the times). At the same time, the essays provide a doorway through which it might also be worth looking at the larger issues lurking in the background.
I will be posting the Symposium contributions here and will also contribute some brief reflections and engagement with each of the excellent and thought provoking contributions. For this Part 3 we consider Elisabeth Kaneza's excellent essay, "Human Rights Standards for Accountability and Effective Remedies." Kaneza focuses on a legal and normative construction of profiling--in the context of information that is or can have discriminatory effects. The essay is particularly useful for helping to unpack the issue of definition (of profiling) and with it the normative baseline from which such definitional possibilities may be identified. The three standards for triggering remediation of prohibited discrimination--(1) "mainly prompted"; (2) "objective and reasonable justification"; (3) "to any degree"--are usefully compared to the standard that appears to be emerging from Basu v. Germany and its two part "severity" standard. Kaneza makes a case for the "to any degree" standard; my observations suggest consequences for data driven descriptive and predictive analytics.Other Essays and Reflections produced for this online symposium may be accessed here:
Part I Introduction
Part 2 Observations on the Case Information Note
Part 3: Observations on Elisabeth Kaneza, "Human Rights Standards for Accountability and Effective Remedies.Part 4: Observations on Anna Hankings-Evans, "Race and Empire in International Law"
Part 5: Observations on Lisa Washington, "Racist Police Practices"
Observations on Elisabeth Kaneza, "Human Rights Standards for Accountability and Effective Remedies."
1. Kaneza starts with the observation that Germans thought that discriminatory profiling was a problem in foreign states. Yet, certainly after 2012, German courts have been sensitive to the issue (here). The issue for Germany since has been one based on a "mainly prompted" standard. Of course the door was then opened to a more complicated analytics. Certainly, though relying principally on racial or ethnic (one presumes as well religious) identity markers (however constituted as data--a point that remains to be fully developed) is forbidden, factoring those characteristics in other ways may not be. The line drawing of statutory (and constitutional) application, then, results in challenges for descriptive and predictive analytics, the sophistication and effective targeting of the application of which may well require the inclusion of data that, when given prominence (or that drives analytics) is forbidden as discriminatory (in intent or effect).
2. Kaneza suggests, correctly, that the gateway issue for this emerging jurisprudence (whether within the German judicial apparatus, or from out of the construction of overarching international normative constraints) starts with definition. The semiotics of discrimination generally, and of profiling in particular, suggests that data analytics can be shaped by the conscious investment of data objects with meaning that in turn aligns the understanding of a term with its specific ideological foundation (in this case the principle of anti-discrimination). Kaneza notes the absence of consensus definition but points to a useful starting point for moving toward a more universal consensus on the meaning of the term. To that end Kaneza turns to the management of the meaning of the term "profiling" by international norm/narrative producing organs. Specific reference is made to the well known European Commission against Racism and Intolerance (ECRI) 2007 definition of racial profiling in its general policy recommendation No. 11 and its "objective and reasonable justification" standard. Also noted was the 2020 definition put forward by the Committee on the Elimination of Racial Discrimination (CERD) in its general recommendation No. 36 (drawing the Durban Programme of Action (2001) ¶72's "to any degree" standard" CERD GR No. 36 ¶7). The CERD standard, however, applies the "to any degree" standard only to instances of profiling, which is itself defined to exclude such data when it is "motivated by objective criteria or reasonable justification" even when "based on grounds of race, colour, descent, national or ethnic origin or their intersection with other relevant grounds" (CERD GR ¶ 13).
3. Of the three, the "to any degree" standard is the most restrictive in terms of the use of race based data or factors in exercising police discretion or even in analyzing compliance with law. The "objective and reasonable justification" standard permits the inclusion of race based data in analytics and race based contextual factoring in exercising of discretionary police action but only in furtherance of a legitimate aim or where it can be established that there exists a proportional relationship between means and (legitimate) aims. The "mainly prompted" standard appears to be the most forgiving. Under this standard evidence that race or ethnicity based factors were incidental rather than the primary predicate for the police action appears to be enough.
4. The standards adopted in Basu v. Germany falls somewhere in the middle (see discussion here and noting that the majority did not engage very critically with the standards identified by Kaneza or raised to a more limited extent in the partial dissent of Judge Pavli; Partial Dissent ¶¶9-12). The Basu court rejected an interpretation of the European Human Rights Charter that would move that discrimination jurisprudence at least respecting profiling closer to the "to any degree" standard. The adopted severity threshold principle makes that clear. With respect to the tests for the showing of severity, the circumstantial evidence standard requires a showing that "the person
concerned had submitted that he or she (or persons having the same
characteristics) had been the only person(s) subjected to a check" AND
that "no other grounds for the check had been apparent." The direct
evidentiary standard is met "where any explanations of the officers
carrying out the check disclosed specific physical or ethnic motives for
the check." (Basu v. Germany, (a)). This later standard might be closer to the "mainly prompted" standard (where the race profiling disclosure suggested discriminatory intent), though it could be read strictly (to suggest that any mention of race or ethnicity is enough to trigger the standard, and thus closer to the "to any degree" standard).
5. Kaneza's sympathies gravitate toward the "to any degree" standard. And Kaneza makes powerful arguments to advance that approach. These focus n historical disadvantage and socio-economic marginalization. Together the principle applied is one of vulnerability serving to tip the balance of interpretation from one that can embed race and ethnicity data within analytics and thereafter operations, to one that ought not. That tipping is contextual--profiling in police work, but perhaps not in the development of metrics and discretionary choices furthering social justice projects. And there is little to say about the use of the data as a necessary element of meeting the severity standards and thereafter in guiding independent state investigation upon the proffering of a credible demand.
6. The argument is said to have special application in the German context. It is for that reason (eg, the shadow of National Socialism in the development of the German constitutional order for example) that Kaneza suggests a necessary dissatisfaction with the current state of German jurisprudence around profiling. Moreover Kaneza's reading of that jurisprudence as inconsistent also suggests a space for further development., in this case away from the "mainly prompted" standard.
7. Lastly, Kaneza underscores the ECHR's emphasis on aspects of procedural fairness in the application of the state's positive obligation to investigate discrimination complaints that meet the "severity" threshold. Here again CERD's General Recommendation No. 36 (¶ 39) is suggested as a basis for the construction of such remedial mechanisms. In this case, it might be that the construction of institutions and mechanisms for independent investigation might necessarily be predicated on the fundamental approach embraced. Nonetheless, the issue of data, data analytics, and its relationship to standards and operational practices remains to be confronted.
* * * * * *
Human Rights Standards for Accountability and Effective Remedies
Racial Profiling in Germany
13.12.2022
In Germany, for a long time, racial profiling was regarded as a problem that exists in other countries. However, in recent years more victims of racial discrimination have brought cases of racial profiling before administrative courts as well as international courts.In October 2022, the European Court of Human Rights (ECtHR) has ruled in the case Basu v. Germany that Germany has violated human rights because the state failed to provide independent effective investigation into racial profiling by the police. This decision creates the need to examine both the practice of racial profiling in Germany and standards for accountability and effective remedies.
Definitions
Although the term racial profiling is now widely used, there is no universal legal definition. However, regional and international human rights bodies have adopted definitions for the term. In 2007, the European Commission against Racism and Intolerance (ECRI) defined racial profiling in its general policy recommendation No. 11 on combating racism and racial discrimination in policing as followed:
“Racial profiling is the use by the police of certain grounds in control, surveillance or investigation activities, without objective and reasonable justification. The use of these grounds has no objective and reasonable justification if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.”
The Committee on the Elimination of Racial Discrimination (CERD) established a definition of the term racial profiling in its general recommendation No. 36 on preventing and combating racial profiling by law enforcement officials (2020), which is based on paragraph 72 of the Durban Programme of Action (2001). Thus, racial profiling is understood
“as the practice of police and other law enforcement 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”.
This definition determines that practices of the police that rely to any degree on the listed grounds is understood as racial profiling. This is a relevant wording that rebuts the understanding that racial profiling can only be called as such when an action of law enforcement relies primarily on a prohibited ground of discrimination.
In its general recommendation, CERD extended the definition of racial discrimination to include an intersectional approach by acknowledging that other grounds such as religion, sex and gender, sexual orientation and gender identity, disability, age, migration status, and work or other status can intersect with the prohibited grounds of racial discrimination. CERD also made clear that stereotyping becomes a human rights violation when stereotypical assumptions are put into practice to undermine the enjoyment of human rights.
CERD has recognised that some groups are the most vulnerable to racial profiling. They include migrants, refugees and asylum seekers, people of African descent, indigenous peoples, and national and ethnic minorities, including Roma.
Situation in Germany
Regional and international human rights bodies and mechanisms have come to the conclusion that the police in Germany practices racial profiling. The United Nations Working Group of Experts on People of African descent stated in its report after a country visit in Germany in 2017 that racial profiling by police officials is endemic. ECRI found that there is strong evidence for extensive racial profiling in Germany.
The existence of racial profiling as a practice of law enforcement is very contested in Germany, and it is widely seen as an exceptional and individual problem of some police officers. The Basic Law prohibits unequal treatment on the ground of race in article 3 (3). Article 3 (3) of the Basic Law has its origin in the aftermath of the Nazi era, during which different minority groups were persecuted by state authorities, including the police, backed by racialised and discriminatory laws and regulations. This experience has led the founders of the Basic Law to create binding fundamental rights that protect citizens against state discrimination and despotism, and it explains in part the defensive attitude against allegations of racial discrimination. However, a number of provisions in German police law are conducive to racial profiling.One example is the legal basis for the powers of the Federal Police to stop and search persons to prevent or eliminate unauthorized entry into the Federal Republic according to section 22 (1a) of the Federal Police Act. Section 22 (1a) of the Federal Police Act has been challenged with the argumentation that its scope is too broad and that it has a discriminatory effect. In its concluding observations to Germany’s 19th-22nd periodic state reports (2015), CERD urged Germany to amend or repeal section 22 (1a) of the Federal Police Act and to legally prohibit discriminatory profiling. The position of the Federal Government has been that there is no need to change the legislation, and that police officers are not trained to exercise their powers in a discriminatory manner.
Administrative courts in Germany have been dealing with racial profiling cases for some years. Although the court cases play an important role for concretising the powers of police officials, the jurisprudence of the administrative courts has been inconsistent. Further, the court decisions suggest that profiling that relies on race can be justified even in the absence of a reasonable suspicion (see, e.g., here). Yet overall, it can be said that the cases have helped to develop a legal practice that is more sensitive to racial discrimination by the police (see also here).
Accountability and Effective Remedies
Article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination stipulates that states shall ensure to everyone within their jurisdiction effective protection and remedies as well as the right to seek just and adequate reparation or satisfaction for any damage suffered because of racial discrimination. CERD recommends that cases of racial profiling should be investigated effectively, that convicted officials should be sanctioned with appropriate penalties, and that victims should be granted compensation.
There are no fully independent complaint mechanisms with the powers to investigate acts of racial profiling in Germany. Victims of racial profiling can only have an investigation through the police itself and through administrative courts. However, in many cases victims do not report incidents of racial profiling because they do not have trust in the state, and do not believe that police officers will be brought to justice. Another reason why victims of racial discrimination may not use legal procedures is that they cannot afford to pay for the costs of court proceedings.
In Basu v. Germany, the ECtHR established that article 14 of the European Convention on Human Rights creates a duty for states to investigate possible racist attitudes, and that for an investigation to be effective, the institutions and persons responsible for carrying it out should be independent of those targeted by it. The court found that the internal investigation that had been carried out by a superior police officer could not be considered as independent.
CERD has recommended that independent complaints mechanisms should be established at the federal and Länder levels. In its general recommendation No. 36, CERD has established the standard for independent complaints mechanisms: the mechanisms should be independent of law enforcement and other related agencies, they must have the power to promptly and effectively investigate allegations and work together with civil society and human rights monitoring bodies, they must report publicly on its findings by respecting data protection regulations and human rights standards, and they should take into account the special needs of persons with disabilities.
Furthermore, CERD recommends in its general recommendation that states should establish oversight mechanisms, both within and external to law enforcement bodies, so that they can prevent discriminatory behaviour. CERD also emphasises the important role of human rights education and mandatory training programmes for law enforcement officials. ECRI has made the recommendation in its sixth report on Germany (2020) that the Federal Police and the police of the Länder should participate in a study on racial profiling. However, plans for such a report were dropped by the previous Government.
In Germany, there are complaints mechanisms that are linked to law enforcement. The Federal Police can take complaints from inside and outside the institution. Since 2016, the Federal Police has an independent internal complaints mechanism. Some Länder have also established complaints mechanisms, mainly in the form of a police ombudsperson.
Conclusion
Racial profiling as a form of racial discrimination constitutes a human rights violation. Court cases, and reports by human rights bodies and civil society organisations attest that minority groups experience racial profiling in Germany. However, the existence of racial profiling is denied as a reality by public authorities.
Under international law, Germany has the duty to respect, protect and fulfil the right to equality and non-discrimination. This includes the obligation not to engage in any act of racial discrimination and to ensure effective protection and remedies. Independent complaints mechanisms, prompt and effective investigations, sanctions and compensations are required to protect the human rights of persons and groups affected by racial discrimination and to guarantee redress for the victims.
Furthermore, German courts should adopt the definitions of racial profiling established by regional and international human rights bodies and consider the case law of the ECtHR for interpretation in national court proceedings. Finally, law enforcement bodies have to take appropriate measures to prevent and fight stereotypes and racist attitudes in the police force.
Elisabeth Kaneza is community outreach officer at the German Center for Integration and Migration Studies (DeZIM-Institut) as well as founder and head of the Kaneza Foundation. She recently defended her doctoral thesis on the rights of Black people in Germany at the University of Potsdam.
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