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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 5 we consider Lisa Washington, "Racist Police Practices: Centering Marginalized Voices in German Political & Academic Discourse"). Using Basu v. Germany as a centering point, Washington elaborates a critical point: Basu "must be understood against the backdrop of decades-long advocacy against racial profiling by marginalized people, including the plaintiff himself. In his case, it took a decade of strategic litigation alongside a lawyer willing to contest mainstream accounts of the police as unbiased enforcers of neutral laws." Basu serves as the culminating point of a years-long project of legal and political semiotics. Political and legal communities must first see something in a particular way before they can apply their mechanics of meaning making, as well as their ordinary hermeneutics, to 'solve' an problem that had remained invisible in plain sight. To give meaning to an object, or a condition, or a relationship, then is a pre-condition to the application of even the ordinary mechanisms of law and politics to its resolution. Two quite interesting consequences may follow from the analysis. The first suggests that traditional notions of intent in law must be reconsidered or abandoned in the face of a showing a racist bias in legal or social structures. In that sense, Basu got it wrong; rather than focus on individual decision-making, an effects test ought to have been the basis of the rule. The second is that racialized data remains fundamentally important; but it is the way that data is harvested and signified, and the way that is it used, that becomes the central element of politics.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 Lisa Washington, "Racist Police Practices"
1. Washington astutely notes that courts in different systems look at the same thing and see something very different. What is observed is signified quite distinctly because interpretive signs are valued differently, and assume different pointing functions. Courts, as we have known for a long time, are captives of their own narrative prisons. But these are also the prisons of "seeing" or "not seeing" that they themselves construct. This has been well understood in the context of the construction of sexual minorities, and then the application of that construction to the mechanics of law (see, Constructing
a "Homosexual" for Constitutional Theory: Sodomy Narrative,
Jurisprudence, and Antipathy in United States and British Courts). The narrative of inspection, the utility of clusters of facts treated indifferently, the reaction to sensitivity as privilege rather than as burden--all of these contributed to a sightlessness at the operational level fueled by the way that the perception of narrative function enveloped all of the actors on that train. The rest follows. Severity, the independence of review, and the weighting of certain data points (facts identified and signified for their effect on the application of law), are all miles apart in the German courts and then in the ECHR.
2. Washington draws on critical race theory to shift lenses. Rather than focusing in the narrative, and its hermeneutics, CRT would focus on the alignment of data and its ordering. From that, and only from that, might a more plausible narrative, constructed in this case around race and ethnicity as the core systemic premise around which the societal order is reconstructed, be deployed to see the events around Basu in a more compelling light. Two premises are necessary for the deployment of this interpretive lens. The first is to embrace race. That is, it requires the belief that the core ordering premise of the German socio-political collective is race-ethnicity.
3. Everything, then, is a function of that ordering premise, whether ot not encountered in the presence or absence of difference. The second is to invert the relationship between premise and narrative. That, in turn, suggests that reality is built on stories, but stories assume significance only as they signify race/ethnicity. That is the reality Washington sees around Germany, and in the long odyssey of Basu. And, indeed, even the value of the narratives suggest the racialized hierarchies that must be confronted and then obliterated. Racism, then, can only be challenged by a racialism that posits that race matters most, but that would then invert the vectors of consequence from segregation/marginalization to what is now termed social justice. Race, though, remains at the center.
4. These are powerful insights, to be sure. They have application in virtually all societies that categorize based on race--a premise that seems to include virtually every state (with finger pointing respecting its origins, eg colonialism, exploitative relations, imperialism, capitalism, Marxist-Leninism, migration and the like). The reference to the work of Professor Iyiola Solanke on the “invisibility of Black people in the German legal profession” is especially welcome. The focus here is on erasure; but not merely acts that make particular data invisible (in the sense that it is vested with no analytic value--and thus no legal signification). It is rather the racialized way in which invisibility is selectively constituted. Thus the paradox of the facts in Basu in which the train passengers were both erased as to their contextualized essence within German society, and at the same time singled out precisely on that same basis.
5. What, then, is the object? It clearly does not include naturalizing decades long meanderings through the courts. It does include an engagement with the structural and systemic practices and assumptions that produce racialized and strategic sightlessness. That first requires racialized solidarity, producing focused action. But it then requires solidarity to ensure that the dialogues of race do not merely shift the calculus of structural racism. That is the long term issue that is well beyond the realms of the small victory in Basu. The object, as Washington notes, is to overcome the narratives that erase Black people in German discourse. It is the form and nature of that overcoming, and the narrative tropes on which society is built that remains the greater challenge.
6. Nonetheless, it requires more. Washington effectively argues that structuralism has consequences for law. The primary one, well illustrated in this case, is the challenge to traditional notions of intent. Intent, in the meaning universe of liberal democracy proceeds from the fundamental centrality of the autonomy individual as a social, political, and legal actor. Certainly Article 1 of the German Grundgesetz makes that quite clear as does a mountain of abstracted signalling in the form of jurisprudence over the last half century or so. Individualism and autonomy is a structural element of German legality. Yet if racism is also a structural element, it suggests that individual autonomy is constrained by the overlayment of racist (that is discretionary decisions made inevitable or more likely by these structural race based premises). In effect, then, the heart of the CRTish argument here is that in the presence of structural racism intent is impossible because the determination is collectively predetermined based on the racial power relation in any given interaction. If that is accepted then the core premise of Basu fails. And liberal democracies in multi-racial/ethnic/religious societies must be invited to rethink the fundamental premises of individual autonomy, and thus the role of intent in law. In its place, one might substitute an effects test--much used during some period of US Supreme Courtt jurisprudence--in which intention becomes irrelevant and only the effects of discretionary decision making are central elements of liability, or responsibility.
7. Ironically, for data governance, one winds up in a similar spot. Race data remains critical, but now the battle is over which data is to be recognized, how is it to be constituted as information, and to what ends that information is applied (through analytics and storytelling). The question isn't about the use of race data, but of the social structures within which the plausible and implausible uses of data are reshaped. That is an important discussion, and one rarely foregrounded. CRT itself emphasizes a project of anti-erasure, as Washington nicely notes. And yet challenging erasure is itself in some respects a data driven project. That is especially so where, as here, structuralism in the constitution of racist society erases personal intent as a predicate to the application of law around reconstituted racialized (non-erasure) narratives. The challenge, then, is not that race is used to construct, reconstruct, and deconstruct groups (contextually organized in time and place of course). The challenge is precisely the constitution of narrative within the meaning of that data may be extracted, it can be appropriately valued, and the boundaries of its use (positive and constraining) may be developed in, through and under law. This bring sus back not just to politics, but to the politics of culture, and to the power relationships among collectives for meaning making authority.
* * *
Racist Police Practices
Centering Marginalized Voices in German Political & Academic Discourse
15.12.2022
In 2012, Biplab Basu and his daughter rode a train from Prague to Berlin. The train had just passed the Czech Republic, when two German federal police officers got on the train and demanded they provide identification. While the officers claimed the check was random, only Basu and his daughter – two German citizens of South Asian descent – were asked to provide identification. This instance of racialized policing encapsulates what many non-white people in Germany experience during travel, on their way to work, or when they simply walk through their own neighborhoods. Basu v. Germany must be understood against the backdrop of decades-long advocacy against racial profiling by marginalized people, including the plaintiff himself. In his case, it took a decade of strategic litigation alongside a lawyer willing to contest mainstream accounts of the police as unbiased enforcers of neutral laws.From German Courts to the ECtHR
German courts repeatedly failed to substantively review Basu’s claim. In 2015, VG Dresden, an administrative court of first impression, dismissed the case on procedural grounds pursuant to § 113 Abs. 1 VwGO. The court found that Basu had no legitimate interest in a declaratory judgment (Feststellungsinteresse). Six months later, the state court of appeals failed to decide his claims on the merits but declared that the identity check had no stigmatizing effect since none of the other (white) passengers took note of it. After the German Federal Constitutional Court (Bundesverfassungsgericht) declined to hear the case in 2018, Basu pursued legal action in front of the European Court of Human Rights (ECtHR).
On October 18, 2022, the decade-long battle ended when the ECtHR, in a unanimous decision, held that Germany violated Article 14 in conjunction with Article 8 of the European Convention on Human Rights by failing to examine Basu’s allegations of racial profiling independently and effectively. The ECtHR found that Germany had a duty to investigate his claims. Unlike the national administrative courts, the ECtHR found that the threshold of severity of interference with the plaintiff’s rights (Denisov v. Ukraine) had been met.
Given the frequent pushback against marginalized people’s accounts of both their experiences with law enforcement and the impact of such encounters, it is worth highlighting that the ECtHR found the petitioner credible. Indeed, the court relied on Basu’s observation that he and his daughter had been the only passengers subjected to an identity check in the car. The court also considered that Basu reported avoiding train travel for months out of fear of further stigmatization.
Approaching Racist Policing in Germany through a Critical Lens
Like many other scholars who ground their research in critical legal thought, my analysis of racialized policing cannot be disentangled from my own experiences with the police as a Black woman. As the daughter of a Black American and a white German, I was born in Berlin and moved back and forth between Germany and the United States for parts of my childhood. Growing up in Germany, I, my family, and our non-white friends (often of Turkish or West African descent) encountered countless instances of racist policing.
While our stories do not occupy mainstream discussions on safety and law enforcement, they are an intervention into mainstream accounts of policing in Germany. In 2011, months after another encounter with a white, German police officer (my mother had called the police for help when someone attempted to break into my home), I began attending law school. In my second year, I joined the Human Rights and Antidiscrimination law clinic where I took on a project on racial profiling. Kampagne für Opfer rasssistisch motivierter Gewalt (KOP) had been looking for a student with a legal background to assist them in their organizing efforts against racial profiling. I joined them in my semester break. At KOP, I met Biplab Basu, for the first time. My work with him – and later, with the Initiative of Black People in Germany (ISD) – provided language for my experience as a Black woman in law school – an overwhelmingly white space with majority straight, white, male professors. Professor Iyiola Solanke has written about the “invisibility of Black people in the German legal profession”. When I went to law school in Berlin – one of the most diverse cities in the country – I was taught by a total of two white women professors during the entirety of my 4,5 year-long law school experience – the remaining were white men.
In the absence of meaningful state intervention, people of color have collectively organized against racist policing in Germany for decades. For example, in 2012, the ISD called for the establishment of independent police review boards. In 2014, ISD and KOP co-led a campaign demanding reparations for racial profiling. Directly impacted people have spurred Know Your Rights Campaigns, encouraging others to advocate for themselves against racist police practices.
German officials’ irresponsiveness to institutionalized racism in Germany prompted organizers to raise these issues on the international level. In this way, Biplab Basu’s individual fight, which ended at the ECtHR last month, fits into a much larger collective effort. Germany has repeatedly faced international scrutiny for racialized police practices. In September 2022, the European Commission against Racism and Intolerance (ECRI) concluded that Germany had not yet implemented a “coherent system of organisations providing victims of discrimination with effective supports”.
Despite international pressure and organizing, there has been significant resistance to the study of racialized policing in Germany. In June 2020, the Federal Ministry of the Interior and Community announced a police study that would include racial profiling. These plans came to a prompt halt when one member of the Ministry claimed that the mere study of racial profiling reinforced the false idea of biased policing. The existence of biased policing, of course, was the very question the study sought to examine. Similar circular logics surfaced in 2011 when the German government denied the existence of racial profiling. The persistent denial of racial profiling fits squarely into the broader subjugation and erasure of Black people in German discourse. Professor Eddie Bruce-Jones has described Germany’s refusal to collect data about racialized communities as a form of “German exceptionalism”.
Policing & Racialized Notions of Belonging
While the ECtHR’s decision in Basu v. Germany is certainly promising, it has significant limitations. At best, it pushes all German states to establish independent review boards for allegations of racist police practices. But neither independent review boards nor access to the courts are the silver bullet to ending racist policing. These judicial and non-judicial pathways for police accountability are not inherently guided by anti-racist principles; neither do they operate in a societal vacuum that treats race as a proxy for criminality and foreignness. In fact, they can reproduce some of the same racialized notions of criminality and belonging that reside in other institutions and society at large.
Critical legal studies lessons are instructive here. They caution against an over focus on individual ‘bad actors’ and, instead, contextualize racism as systemic subordination. Independently identifying and investigating individual officers as perpetrators of racist policing is an important, albeit insufficient step in confronting structural racism, classism, and sexism in law enforcement. Further, neither Basu v. Germany nor its twin decision Muhammad v. Spain grapple with the use of suspicion as proxy for racial targeting. German courts have repeatedly relied on vague claims of suspicion when confronted with allegations of racial targeting of people of color. Believing oppressed groups when they report racist policing – despite all the risk associated with challenging police narratives – is an integral part of intervening in mainstream knowledge production about race, safety, and the German justice system.
The individual harms of racial profiling were central to the ECtHR’s reasoning in Basu v. Germany. But racist policing not only harms targeted individuals, it obscures our collective understanding of criminality and belonging. Racial stereotyping by law enforcement in the NSU (“Nationalsozialistischer Untergrund”) investigations serves as an example. For years, German law enforcement failed to recognize a pattern of racially targeted murders across the country. Early on, investigators concluded that the victims themselves were involved in criminal activity. These dangerous assumptions were based solely on racialized understandings of criminality; perhaps even on the implicit belief that the victims were not worthy of government protection.
Resisting Exclusion
Racial profiling serves a self-perpetuating logic. German law enforcement regularly denies or justifies the need for racial profiling by doubling down on racialized understandings of belonging. Some courts have endorsed racial profiling as a legitimate immigration enforcement tactic; ultimately perpetuating the idea that non-whiteness is inherently foreign. Black and other non-white Germans are expected to accept racialized targeting in the name of border control and safety.
While the recent ECtHR decision is promising, it will do little to transform visions of who belongs, is worthy of protection, and can exist free of law enforcement scrutiny. Counter-narratives continue to grow alongside racialized understandings of belonging. Resistance is our path forward.
S. Lisa Washington is an Assistant Professor of Law at Brooklyn Law School. Her scholarship examines the impact of the carceral state on marginalized communities.
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