Case Watch: European Court Finds Ethnic Profiling by the Police Discriminatory
By Zsolt Bobis
In a ruling dealing with what it called “institutionalized racism” directed against Roma in Romania, the European Court of Human Rights has for the first time explicitly made use of the term “ethnic profiling” with regard to police action it found to be discriminatory.
Lingurar v. Romania concerned a violent police raid on a majority Roma village during which the four Roma applicants—members of the same family—alleged they had been beaten and injured. They claimed that the raid had been racially motivated and that the investigation into their complaints had been marred by racist stereotyping.
In its ruling, delivered on April 16, 2019, the court noted the David and Goliath nature of the raid, during which 85 armed law enforcement officers surprised the unarmed applicants at home in the early morning. Despite the state’s efforts to blame the victims, the court was not convinced that the force employed by the police was proportionate and found a violation of Article 3 of the European Convention on Human Rights (prohibition of inhuman or degrading treatment).
In assessing the discrimination claims, the court determined that the applicants were targeted not on the basis of their own actions but because they were Roma. It made reference to evidence, including police plans for the raid, which cited as justification the ethnic group’s alleged antisocial behavior and high criminality rate, and it noted the investigators’ claim that the applicants’ alleged aggressiveness was related to ethnic traits or habits “specific to Roma.”
The state also attempted to justify the police actions, including by arguing that the criminal nature of the majority Roma neighborhood somehow justified the treatment. However, the court concluded that it was not convinced that “considerations other than the applicants’ ethnicity played an important role in the manner in which the police raid. . . had been organised and carried out.” As a result, the court ruled the law enforcement action had amounted to ethnic profiling, and that it had been a discriminatory exercise of police powers under the European Convention, finding a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 3.
Lingurar is in line with the European Court of Human Rights’ previous case law on ethnic profiling. In the case of Timishev v. Russia, the court established, in relation to a discriminatory refusal of entry at a border crossing, that “no difference in treatment which is based exclusively or to a decisive extent on a person's ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures.” But unlike the Lingurar judgment, the court’s Timishev ruling had not used the term “ethnic profiling,” specifically, to name the issue at hand.
In another noteworthy development in Lingurar, the court recognized the existence of institutional anti-Roma sentiment in Romanian policing. In light of systemic discrimination against the Roma, domestic authorities and courts should have thoroughly interrogated whether anti-Roma bias played a role in the raid. However, the court found that they had failed to effectively investigate the plaintiffs’ claims by dismissing their allegations of discrimination without any in-depth analysis. The court specifically highlighted the domestic courts’ failure to “censure what seems to be a discriminatory use of ethnic profiling by the authorities.”
Despite these groundbreaking elements of the judgment, Lingurar has not necessarily made it less challenging to prove ethnic profiling practices by law enforcement—including discriminatory identity checks, stop and searches, fines and raids—in court. Ethnic or racial bias may not always be so clearly traceable in documents available to victims as it was in this case.
The discriminatory impact of certain police practices on minority groups as a whole can be hard to show in the absence of ethnically disaggregated data collected by the state. And law enforcement actions may still be discriminatory, even if they are cloaked behind the veil of politeness or when they are not violent.
That is why the Open Society Justice Initiative engages in strategic litigation to establish effective European legal remedies and protections against ethnic profiling. Through our ongoing cases, Seydi and others v. France, and Zeshan Muhammad v. Spain, we aim to further develop the European Court of Human Rights jurisprudence on ethnic profiling—including on evidentiary questions such as the shifting of the burden of proof—and to enhance the defenses available to victims of discriminatory identity checks and searches.
Zsolt Bobis is an associate policy officer with the Open Society Justice Initiative.