Human Rights Standards for Accountability and Effective Remedies
Racial Profiling in Germany
In Germany, for a long time, racial profiling was regarded as a problem that exists in other countries. However, in recent years more victims of racial discrimination have brought cases of racial profiling before administrative courts as well as international courts.
In October 2022, the European Court of Human Rights (ECtHR) has ruled in the case Basu v. Germany that Germany has violated human rights because the state failed to provide independent effective investigation into racial profiling by the police. This decision creates the need to examine both the practice of racial profiling in Germany and standards for accountability and effective remedies.
Although the term racial profiling is now widely used, there is no universal legal definition. However, regional and international human rights bodies have adopted definitions for the term. In 2007, the European Commission against Racism and Intolerance (ECRI) defined racial profiling in its general policy recommendation No. 11 on combating racism and racial discrimination in policing as followed:
“Racial profiling is the use by the police of certain grounds in control, surveillance or investigation activities, without objective and reasonable justification. The use of these grounds has no objective and reasonable justification if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.”
The Committee on the Elimination of Racial Discrimination (CERD) established a definition of the term racial profiling in its general recommendation No. 36 on preventing and combating racial profiling by law enforcement officials (2020), which is based on paragraph 72 of the Durban Programme of Action (2001). Thus, racial profiling is understood
“as the practice of police and other law enforcement relying, to any degree, on race, colour, descent or national or ethnic origin as the basis for subjecting persons to investigatory activities or for determining whether an individual is engaged in criminal activity”.
This definition determines that practices of the police that rely to any degree on the listed grounds is understood as racial profiling. This is a relevant wording that rebuts the understanding that racial profiling can only be called as such when an action of law enforcement relies primarily on a prohibited ground of discrimination.
In its general recommendation, CERD extended the definition of racial discrimination to include an intersectional approach by acknowledging that other grounds such as religion, sex and gender, sexual orientation and gender identity, disability, age, migration status, and work or other status can intersect with the prohibited grounds of racial discrimination. CERD also made clear that stereotyping becomes a human rights violation when stereotypical assumptions are put into practice to undermine the enjoyment of human rights.
CERD has recognised that some groups are the most vulnerable to racial profiling. They include migrants, refugees and asylum seekers, people of African descent, indigenous peoples, and national and ethnic minorities, including Roma.
Situation in Germany
Regional and international human rights bodies and mechanisms have come to the conclusion that the police in Germany practices racial profiling. The United Nations Working Group of Experts on People of African descent stated in its report after a country visit in Germany in 2017 that racial profiling by police officials is endemic. ECRI found that there is strong evidence for extensive racial profiling in Germany.
The existence of racial profiling as a practice of law enforcement is very contested in Germany, and it is widely seen as an exceptional and individual problem of some police officers. The Basic Law prohibits unequal treatment on the ground of race in article 3 (3). Article 3 (3) of the Basic Law has its origin in the aftermath of the Nazi era, during which different minority groups were persecuted by state authorities, including the police, backed by racialised and discriminatory laws and regulations. This experience has led the founders of the Basic Law to create binding fundamental rights that protect citizens against state discrimination and despotism, and it explains in part the defensive attitude against allegations of racial discrimination. However, a number of provisions in German police law are conducive to racial profiling.One example is the legal basis for the powers of the Federal Police to stop and search persons to prevent or eliminate unauthorized entry into the Federal Republic according to section 22 (1a) of the Federal Police Act. Section 22 (1a) of the Federal Police Act has been challenged with the argumentation that its scope is too broad and that it has a discriminatory effect. In its concluding observations to Germany’s 19th-22nd periodic state reports (2015), CERD urged Germany to amend or repeal section 22 (1a) of the Federal Police Act and to legally prohibit discriminatory profiling. The position of the Federal Government has been that there is no need to change the legislation, and that police officers are not trained to exercise their powers in a discriminatory manner.
Administrative courts in Germany have been dealing with racial profiling cases for some years. Although the court cases play an important role for concretising the powers of police officials, the jurisprudence of the administrative courts has been inconsistent. Further, the court decisions suggest that profiling that relies on race can be justified even in the absence of a reasonable suspicion (see, e.g., here). Yet overall, it can be said that the cases have helped to develop a legal practice that is more sensitive to racial discrimination by the police (see also here).
Accountability and Effective Remedies
Article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination stipulates that states shall ensure to everyone within their jurisdiction effective protection and remedies as well as the right to seek just and adequate reparation or satisfaction for any damage suffered because of racial discrimination. CERD recommends that cases of racial profiling should be investigated effectively, that convicted officials should be sanctioned with appropriate penalties, and that victims should be granted compensation.
There are no fully independent complaint mechanisms with the powers to investigate acts of racial profiling in Germany. Victims of racial profiling can only have an investigation through the police itself and through administrative courts. However, in many cases victims do not report incidents of racial profiling because they do not have trust in the state, and do not believe that police officers will be brought to justice. Another reason why victims of racial discrimination may not use legal procedures is that they cannot afford to pay for the costs of court proceedings.
In Basu v. Germany, the ECtHR established that article 14 of the European Convention on Human Rights creates a duty for states to investigate possible racist attitudes, and that for an investigation to be effective, the institutions and persons responsible for carrying it out should be independent of those targeted by it. The court found that the internal investigation that had been carried out by a superior police officer could not be considered as independent.
CERD has recommended that independent complaints mechanisms should be established at the federal and Länder levels. In its general recommendation No. 36, CERD has established the standard for independent complaints mechanisms: the mechanisms should be independent of law enforcement and other related agencies, they must have the power to promptly and effectively investigate allegations and work together with civil society and human rights monitoring bodies, they must report publicly on its findings by respecting data protection regulations and human rights standards, and they should take into account the special needs of persons with disabilities.
Furthermore, CERD recommends in its general recommendation that states should establish oversight mechanisms, both within and external to law enforcement bodies, so that they can prevent discriminatory behaviour. CERD also emphasises the important role of human rights education and mandatory training programmes for law enforcement officials. ECRI has made the recommendation in its sixth report on Germany (2020) that the Federal Police and the police of the Länder should participate in a study on racial profiling. However, plans for such a report were dropped by the previous Government.
In Germany, there are complaints mechanisms that are linked to law enforcement. The Federal Police can take complaints from inside and outside the institution. Since 2016, the Federal Police has an independent internal complaints mechanism. Some Länder have also established complaints mechanisms, mainly in the form of a police ombudsperson.
Racial profiling as a form of racial discrimination constitutes a human rights violation. Court cases, and reports by human rights bodies and civil society organisations attest that minority groups experience racial profiling in Germany. However, the existence of racial profiling is denied as a reality by public authorities.
Under international law, Germany has the duty to respect, protect and fulfil the right to equality and non-discrimination. This includes the obligation not to engage in any act of racial discrimination and to ensure effective protection and remedies. Independent complaints mechanisms, prompt and effective investigations, sanctions and compensations are required to protect the human rights of persons and groups affected by racial discrimination and to guarantee redress for the victims.
Furthermore, German courts should adopt the definitions of racial profiling established by regional and international human rights bodies and consider the case law of the ECtHR for interpretation in national court proceedings. Finally, law enforcement bodies have to take appropriate measures to prevent and fight stereotypes and racist attitudes in the police force.