When It Comes to Race, European Justice Is Not Blind
By Zaza Namoradze & Irmina Pacho
In Bulgaria, half of the people in prison in 2015 were Roma. In Estonia, foreigners are disproportionately represented among people being held in pretrial detention. In Greece foreigners who are convicted of a crime receive heavier sentences than Greeks. Roma in Hungary are three times more likely to be stopped and searched by the police, and are less likely than non-Roma to be released awaiting trial.
These alarming findings are highlighted in a new scoping study, produced by the two of us with Justicia, the EU criminal justice reform network, that looked at the treatment of minority groups and non-nationals by the police and justice systems across 12 European Union member states. The conclusion, unfortunately, is that there is a significant level of unfairness in how people are treated, depending on their ethnic background.
This is believed to be one of the first studies of its kind. Despite efforts by the European Union to ensure that EU members apply common standards in their justice system in terms of arrest rights—such as ensuring early access to a lawyer—the question of standards of ethnic or racial bias have not been on the agenda.
There are no European Union–wide regulations that have standardized data collection and monitoring of outcomes in the criminal justice systems, with particular attention to ethnic and racial minorities, and non-nationals.
In addition, in most of the countries covered by the study, there was a lack of ethnic and racial data. Even when this data was gathered, we noticed a lack of consistent methods of their collection and application of concepts of race, ethnicity, and national origin.
For instance, Romania, the Czech Republic, Italy, Spain, Hungary, Sweden, Slovenia, and Estonia gather criminal justice statistics that are broken down by nationality, but mostly in a selective and inconsistent manner. Only the UK has been systematically collecting data on ethnic and racial minorities for the last four decades in different areas of social life, including in criminal justice. This makes it very difficult to monitor the practices and outcomes of criminal justice institutions and poses main challenges in cross-country comparisons due to lack of correlating data.
Despite these challenges, two principal areas of concern emerged from this study.
First, institutional bias. According to the research, stereotypes deeply rooted in the society are reflected in the practice of police officers, prosecutors, judges, and even, sometimes, in the practice of legal aid lawyers.
Researchers have noticed this practice, among others, in Bulgaria, Spain, or Sweden. In Romania, for instance, an independent expert noted that courtroom officials are deeply biased against people they believe are Roma. In Spain, the existence of clear institutional bias was paralleled by the disproportionate representation of non-nationals in crime rates statistics, pretrial statistics, or prison population statistics.
Additionally, implied bias was noted among Italian and Hungarian police officers, as well those in Romania, who during interviews indicated a common belief that all Roma have criminal characteristics. In the UK, police uses ethnic stereotyping as an evident tactic. Black people, for example, are four times more likely to be stopped and searched by the police than white people. Ethnic disparities introduced by stop-and-search, and other forms of police activity, remain significant throughout prosecution, conviction, and sentencing.
Second, the research clearly showed that non-nationals do not enjoy the same level of protection for their rights once they are arrested—principally due to a lack of access to both interpreters, and to information on their procedural rights in their own language. The situation is additionally exacerbated by the lack of effective legal aid provision in the majority of the 12 countries in the survey. While this affects detainees and suspects regardless of their ethnic identity or national status, it clearly becomes a far greater challenge when language barriers are also involved.
The limited methodology employed in this study—which is based largely on a survey of existing research and publicly available statistics supplemented by interviews with informative stakeholders—did not enable us to produce a comprehensive picture of existing disparities and their sources, but rather gave some snapshots of areas of greatest concerns. Yet it clearly demonstrates the extent of an issue that casts a shadow over the European Union’s ambitious efforts to introduce common standards of justice and rights across its member states. Having recognized the problem, it’s time to find ways to fix it.
Zaza Namoradze, director of the Open Society Justice Initiative’s Berlin office, oversees programs on legal capacity development, legal empowerment, legal aid reform, and access to justice.
Irmina Pacho is an associate legal officer with the Open Society Justice Initiative.