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ETHNIC PROFILING in the EUROPEAN UNION: Pervasive, Ineffective, and Discriminatory

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ETHNIC PROFILING in the EUROPEAN UNION: Pervasive, Ineffective, and Discriminatory ETHNIC PROFILING IN THE EUROPEAN UNION: Pervasive, Ineffective, and Discriminatory Ethnic Profiling in the European Union: Pervasive, Ineffective, and Discriminatory OPEN SOCIETY INSTITUTE NEW YORK Copyright © 2009 by the Open Society Institute. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means without the prior permission of the publisher. ISBN: 978-1-891385-88-9 Published by Open Society Institute 400 West 59th Street New York, NY 10019 USA www.soros.org For more information contact: Open Society Justice Initiative 400 West 59th Street New York, NY 10019 USA www.justiceinitiative.org Cover designed by Judit Kovács l Createch Ltd. Cover photo by Diether Endlicher l Associated Press Text layout and printing by Createch Ltd. 2 Table of Contents Acknowledgments 5 I. Executive Summary and Recommendations 7 A. Executive Summary 7 B. Recommendations 13 II. Ethnic Profiling: What Is It and When Is It Unlawful? 19 A. Ethnic Profiling Defined and Described 19 B. Is Ethnic Profiling Legal? 22 III. Ethnic Profiling in Ordinary Policing 31 A. Existing Reporting of Ethnic Profiling in Europe 32 B. Quantitative Data on Ethnic Profiling in Stop-and-Search Practices 34 C. Disparate Treatment and Abusive Conduct during Stops of Minorities 36 D. Police Raids Targeting Ethnic Minorities 42 E. Immigration Enforcement 45 F. Negative Consequences of Ethnic Profiling in Ordinary Policing 48 G. Evaluating the Effectiveness of Ethnic Profiling in Ordinary Policing 51 3 IV. Ethnic Profiling in Counterterrorism Since 9/11 57 A. Ethnic Profiling in Mass Controls and Stop-and-Search Practices 60 B. Data Mining 68 C. Raids on Muslim Institutions and Harassment of Muslim Businesses 72 D. Arrest and Imprisonment 82 E. Identifying Individuals in the Process of Radicalizing 90 F. Monitoring Mosques, Muslim Organizations, and Their Members 97 G. Negative Consequences of Ethnic Profiling in Counterterrorism 109 H. Evaluating the Effectiveness of Ethnic Profiling in Counterterrorism: No Evidence of Efficacy 113 V. Alternatives to Ethnic Profiling 119 VI. Conclusion 129 Notes 133 4 ETHNIC PROFILING IN THE EUROPEAN UNION Acknowledgments This report is the result of many contributions made over several years. It was written by Rachel Neild, based on input from many others. In particular, Lanna Hollo of Hollo Human Rights Consulting helped to shape the report’s approach, and provided the bulk of the research for Chapters IV and V. The report would not have been possible without her research and expertise. James A. Goldston wrote the legal analysis and review of conceptual problems with profiling and Maxim Ferschtman provided additional legal analysis. Rebekah Delsol researched and wrote sections on U.K. practices. Indira Goris provided legal research on police powers and counterterrorism authorities in the Euro- pean Union. Peter Rodrigues, of the Anne Frank Foundation, contributed supporting materials from the Netherlands. The report was edited by David Berry, James A. Goldston, Diane Orentlicher, and Robert O. Varenik. Stephen Humphries and Andrea Kriszan prepared a first version of the report in 2006 on the basis of research provided by Boyko Boev, Jeremie Gaulthier, Philip Gounev, Andras Pap Laszlo, Joel Miller, Daniel Wagman, and Gus Hosein. Misti Duvall, Ammar Abu Zayyad, Cathy Lull, Alina Finkelshteyn, Shamus Brennan and Sebastian Kohn assisted with additional research and fact checking. Further research and legal assistance were provided by the law clinics at Harvard University and New York University. We are grateful to Jamie O’Connell, then of the Harvard Law School Human Rights Program and currently program officer, Boalt Hall Committee for International Human Rights Clinic at Berkeley Law (Boalt Hall) and 5 to students Aren Adjoian, Gwen Gordon, Colleen Guilford, Emily Gumper, and Rahul Mukhi. We also wish to give great thanks to Jayne Huckerby and Smita Narula of the International Human Rights Clinic of NYU School of Law and to students Mana Barari, Jennie Kim, and Margie van Weerden. Many thanks to participants at the May 2007 peer review meeting, and especially to Sara Silvestri and Elizabeth Collett of European Policy Centre for their cooperation in organizing and hosting the event. Finally, we are particularly grateful to security officials in Germany’s Ministry of the Interior and in the intelligence services and police of the Netherlands who took the time to review a pre-publication draft and meet with us to discuss it. We regret that French officials did not agree to a similar consultation. We also appreciate the time and consideration of staff at the U.K. Ministry of Justice and from the London Metropolitan Police Service who provided input and comments. The Open Society Justice Initiative bears sole responsibility for the final version of this report, including any errors or misrepresentations. 6 ACKNOWLEDGMENTS I. Executive Summary and Recommendations A. Executive Summary Since the 9/11 attacks in the United States, 32 percent of British Muslims report being subjected to discrimination at airports. Police carrying machine guns have conducted identity checks on 11-year-olds at German mosques. Moroccan immigrants have been called “moro de mierda” (“Arab shit”) by Spanish police. The personal data of 8.3 million people were searched in a massive German data mining exercise which targeted—among other characteristics—people who were Muslim, and which did not identify a single terrorist. These are examples of ethnic profiling by police in Europe—a common, long- standing practice that has intensified in recent years. Evidence from countries across the European Union shows that police routinely use generalizations about ethnicity, reli- gion, race, or national origin in deciding whom to target for identity checks, stops, and searches. Contemporary concerns about terrorism underlie a rising interest in ethnic profiling in Europe, which many see as an effective way to identify terrorist suspects. It might be comforting to believe that police can spot terrorists and other crimi- nals based on generalizations about ethnicity, race, national origin, or religion. But that is not the case. As this report demonstrates, ethnic profiling by police in Europe may 7 be pervasive, but it is inefficient, ineffective, and discriminatory. Fortunately, better alternatives exist. Defining Ethnic Profiling The term “profiling” refers to a police practice in which a defined set of characteristics is used to look for and apprehend someone who has committed a crime (criminal pro- filing) or to identify people likely to engage in criminal activity (behavioral profiling). Criminal and behavioral profiling are accepted and lawful policing tools designed to allow the most efficient allocation of scarce law enforcement resources. As long as the profiles used by police are based on specific information about an individual or factors that are objective and statistically proven to be significant indicators of criminal activity, profiling is legal. The term “ethnic profiling” describes the use by law enforcement of generaliza- tions grounded in ethnicity, race, religion, or national origin—rather than objective evidence or individual behavior—as the basis for making law enforcement and/or inves- tigative decisions about who has been or may be involved in criminal activity. Ethnic profiling is manifest most often in police officers’ decisions about whom to stop, ask for identity papers, question, search, and sometimes arrest. Ethnic profiling may result from the racist behavior of individual police officers, or from the institutionalized bias ingrained in many police forces. A host of bad outcomes stem from ethnic profiling, including stopping, searching, and even arresting innocent people; overlooking criminals who do not fit the established profile; undermining the rule of law and perceptions of police fairness; stigmatizing entire communities; and alienating people who could work with police to reduce crime and prevent terrorism. Ethnic Profiling Is Pervasive—and Has Grown Since 9/11 Ethnic profiling did not emerge as a post-9/11 response to terrorism. Evidence clearly indicates that police across Europe have long engaged in ethnic profiling of immigrant and minority communities. Despite a dearth of quantitative information on policing and ethnicity in most of Europe, the data that exist indicate ethnic profiling is widespread. Since the 9/11 attacks, interest in and use of ethnic profiling have grown sharply. Even if the European public may condemn high-profile abuses (such as rendition and torture) associated with the “war on terror,” many see the profiling of Muslims as a mat- ter of common sense. According to this argument, young Muslim men destroyed the World Trade Center in New York, blew up Madrid’s Atocha train station, and bombed the London Underground, so they should be the targets of police attention. With so much at stake, ethnic profiling may seem like smart law enforcement. 8 EXECUTIVE SUMMARY AND RECOMMENDATIONS Police in Europe seem to agree. In the United Kingdom (the only EU mem- ber state to systematically gather ethnic data on police practices), data show dramatic increases in stops and searches of British Asians following terrorist attacks: stops of persons of Asian descent conducted under counterterrorism powers increased three- fold following the 9/11 attacks, and five-fold after the July 2005 London Underground bomb attacks.1 In Germany, police have used preventive
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