A Legal Victory in the Drive to End Racist Police Tactics

When someone is stopped and searched by police officers because of their skin color rather than what they are doing, it is not just unfair. This is an example of ethnic profiling, which takes a heavy toll on those who are often repeatedly targeted. This can include many aspects of their lives from their physical and mental health, to their ability to pursue education and employment. Ethnic profiling is also an ineffective form of policing, leading to the wrong people being targeted and, in turn, lower arrest rates and a souring of relationships between police and the communities they are meant to serve, sometimes sparking protests and unrest.

Consider the case of Mohamed Wa Baile, a Swiss citizen, who was simply on his way to work when he was stopped from going about his business for no good reason by police in Zurich train station. The police report refers to his dark skin, and stated that he had aroused suspicion by looking away from three police officers, who then stopped him and asked for his identity documents. Wa Baile complained to the officers that what they were doing wasn’t “right, it’s racism,” further stating “everywhere I go, I'm stopped.” Nonetheless, he was searched and subsequently convicted and fined for refusing to comply with police orders.

Wa Baile complained through the Swiss court system about his treatment. When he got no satisfaction, he filed complaints at the European Court of Human Rights (ECHR ) arguing, in short, that the police and courts had violated his right to be treated equally under the European Convention on Human Rights. The Justice Initiative, which has been working to combat police ethnic profiling for over a decade, filed a brief to assist the ECHR in making its decision.     

In February, the ECHR issued its findings: that Wa Baile had been subjected to three violations of the Convention, arising from the discriminatory nature of the stop, and the failure of the Swiss courts to examine whether racist motives might have played a part in the decision to stop him.

Despite ethnic profiling having been condemned as unlawful by a number of international, regional and domestic institutions and courts, it was described by the Parliamentary Assembly of the Council of Europe in 2021 as remaining “a widespread and documented phenomenon across Europe.” This is because in practice it is far too frequently not acknowledged, recognized or addressed. The Wa Baile judgement is significant in that the ECHR substantively engaged with the issue including the legal obligations on states to actively prevent ethnic profiling, and to provide redress when it does happen, with three points standing out:

An objective framework for police stops is crucial

The ECHR reiterated that a lack of an adequate legal and administrative framework governing police stops is likely to give rise to discriminatory identity checks. It noted authorities such as the European Code of Police Ethics and the European Commission against Racism and Intolerance clearly emphasize the need for the police to have “reasonable suspicion” of criminal behavior before they stop someone. Other bodies and courts have dismissed a range of reasons brought forward by police to supposedly justify a stop. A police officer’s “gut instinct”; apparently “furtive” behavior by the person targeted; any form of stereotype; or simply being in a busy, high-crime area: none of these things amount to reasonable suspicion. 

The burden of proof in ethnic profiling cases falls on the State, not on the targeted person

The ECHR reaffirmed that once an individual sets out an initial case that suggests that a stop was discriminatory, it is for the government to show that discrimination did not in fact take place. In this case, the Swiss courts had found that there was no objective reason for the police identity check on Wa Baile; in the absence of a valid reason for a check, there is a strong presumption that it was carried out on discriminatory grounds. The Swiss government did not produce evidence which rebutted this presumption—therefore the European judges found a violation of the right not to be discriminated against, in conjunction with the right to respect for private life.

The State cannot turn a blind eye to ethnic profiling

The ECHR has repeatedly held that, in view of its perilous consequences, authorities must use all available means to combat racism. This includes investigating discriminatory motives in arguable cases such as this one. But the court found that the Swiss courts had either put the whole burden of proving discrimination onto Wa Baile, or failed to examine his allegations of ethnic profiling. As such, the ECHR found a violation of the non-discrimination procedural right to investigation, as well as the right to an effective remedy.

It is now almost five years since the murder of George Floyd by police in Minneapolis in May 2020 fueled a surge of Black Lives Matter protests, and threw a global spotlight on racist policing. In June 2020, for example, the European Parliament acknowledged the ensuing anti-racism protests in a resolution which included a condemnation of ethnic profiling. The parliament called upon the European Union and its member states to develop policies and measures to end it in all forms.

As touched upon in Wa Baile, ending ethnic profiling requires legislation prohibiting it, accompanied by clear guidance for law enforcement agencies; the monitoring and data collection of police activities; and effective investigations and redress. 

In the United States, judicial remedies and settlements have often contained packages of such measures including policies, training, supervision, monitoring, and disciplinary steps. They have also involved input from affected communities, recognizing the need to build trust and that those community members are best placed to advise on impact and solutions. This approach acknowledges the systemic nature of the problem and facilitates the structural solutions that are needed to dismantle it. The Wa Baile judgment is another step towards that same end. It also stands as a reminder that paying lip-service to fair policing and racial justice is not enough.