Racist Police Practices
Centering Marginalized Voices in German Political & Academic Discourse
In 2012, Biplab Basu and his daughter rode a train from Prague to Berlin. The train had just passed the Czech Republic, when two German federal police officers got on the train and demanded they provide identification. While the officers claimed the check was random, only Basu and his daughter – two German citizens of South Asian descent – were asked to provide identification. This instance of racialized policing encapsulates what many non-white people in Germany experience during travel, on their way to work, or when they simply walk through their own neighborhoods. Basu v. Germany must be understood against the backdrop of decades-long advocacy against racial profiling by marginalized people, including the plaintiff himself. In his case, it took a decade of strategic litigation alongside a lawyer willing to contest mainstream accounts of the police as unbiased enforcers of neutral laws.
From German Courts to the ECtHR
German courts repeatedly failed to substantively review Basu’s claim. In 2015, VG Dresden, an administrative court of first impression, dismissed the case on procedural grounds pursuant to § 113 Abs. 1 VwGO. The court found that Basu had no legitimate interest in a declaratory judgment (Feststellungsinteresse). Six months later, the state court of appeals failed to decide his claims on the merits but declared that the identity check had no stigmatizing effect since none of the other (white) passengers took note of it. After the German Federal Constitutional Court (Bundesverfassungsgericht) declined to hear the case in 2018, Basu pursued legal action in front of the European Court of Human Rights (ECtHR).
On October 18, 2022, the decade-long battle ended when the ECtHR, in a unanimous decision, held that Germany violated Article 14 in conjunction with Article 8 of the European Convention on Human Rights by failing to examine Basu’s allegations of racial profiling independently and effectively. The ECtHR found that Germany had a duty to investigate his claims. Unlike the national administrative courts, the ECtHR found that the threshold of severity of interference with the plaintiff’s rights (Denisov v. Ukraine) had been met.
Given the frequent pushback against marginalized people’s accounts of both their experiences with law enforcement and the impact of such encounters, it is worth highlighting that the ECtHR found the petitioner credible. Indeed, the court relied on Basu’s observation that he and his daughter had been the only passengers subjected to an identity check in the car. The court also considered that Basu reported avoiding train travel for months out of fear of further stigmatization.
Approaching Racist Policing in Germany through a Critical Lens
Like many other scholars who ground their research in critical legal thought, my analysis of racialized policing cannot be disentangled from my own experiences with the police as a Black woman. As the daughter of a Black American and a white German, I was born in Berlin and moved back and forth between Germany and the United States for parts of my childhood. Growing up in Germany, I, my family, and our non-white friends (often of Turkish or West African descent) encountered countless instances of racist policing.
While our stories do not occupy mainstream discussions on safety and law enforcement, they are an intervention into mainstream accounts of policing in Germany. In 2011, months after another encounter with a white, German police officer (my mother had called the police for help when someone attempted to break into my home), I began attending law school. In my second year, I joined the Human Rights and Antidiscrimination law clinic where I took on a project on racial profiling. Kampagne für Opfer rasssistisch motivierter Gewalt (KOP) had been looking for a student with a legal background to assist them in their organizing efforts against racial profiling. I joined them in my semester break. At KOP, I met Biplab Basu, for the first time. My work with him – and later, with the Initiative of Black People in Germany (ISD) – provided language for my experience as a Black woman in law school – an overwhelmingly white space with majority straight, white, male professors. Professor Iyiola Solanke has written about the “invisibility of Black people in the German legal profession”. When I went to law school in Berlin – one of the most diverse cities in the country – I was taught by a total of two white women professors during the entirety of my 4,5 year-long law school experience – the remaining were white men.
In the absence of meaningful state intervention, people of color have collectively organized against racist policing in Germany for decades. For example, in 2012, the ISD called for the establishment of independent police review boards. In 2014, ISD and KOP co-led a campaign demanding reparations for racial profiling. Directly impacted people have spurred Know Your Rights Campaigns, encouraging others to advocate for themselves against racist police practices.
German officials’ irresponsiveness to institutionalized racism in Germany prompted organizers to raise these issues on the international level. In this way, Biplab Basu’s individual fight, which ended at the ECtHR last month, fits into a much larger collective effort. Germany has repeatedly faced international scrutiny for racialized police practices. In September 2022, the European Commission against Racism and Intolerance (ECRI) concluded that Germany had not yet implemented a “coherent system of organisations providing victims of discrimination with effective supports”.
Despite international pressure and organizing, there has been significant resistance to the study of racialized policing in Germany. In June 2020, the Federal Ministry of the Interior and Community announced a police study that would include racial profiling. These plans came to a prompt halt when one member of the Ministry claimed that the mere study of racial profiling reinforced the false idea of biased policing. The existence of biased policing, of course, was the very question the study sought to examine. Similar circular logics surfaced in 2011 when the German government denied the existence of racial profiling. The persistent denial of racial profiling fits squarely into the broader subjugation and erasure of Black people in German discourse. Professor Eddie Bruce-Jones has described Germany’s refusal to collect data about racialized communities as a form of “German exceptionalism”.
Policing & Racialized Notions of Belonging
While the ECtHR’s decision in Basu v. Germany is certainly promising, it has significant limitations. At best, it pushes all German states to establish independent review boards for allegations of racist police practices. But neither independent review boards nor access to the courts are the silver bullet to ending racist policing. These judicial and non-judicial pathways for police accountability are not inherently guided by anti-racist principles; neither do they operate in a societal vacuum that treats race as a proxy for criminality and foreignness. In fact, they can reproduce some of the same racialized notions of criminality and belonging that reside in other institutions and society at large.
Critical legal studies lessons are instructive here. They caution against an over focus on individual ‘bad actors’ and, instead, contextualize racism as systemic subordination. Independently identifying and investigating individual officers as perpetrators of racist policing is an important, albeit insufficient step in confronting structural racism, classism, and sexism in law enforcement. Further, neither Basu v. Germany nor its twin decision Muhammad v. Spain grapple with the use of suspicion as proxy for racial targeting. German courts have repeatedly relied on vague claims of suspicion when confronted with allegations of racial targeting of people of color. Believing oppressed groups when they report racist policing – despite all the risk associated with challenging police narratives – is an integral part of intervening in mainstream knowledge production about race, safety, and the German justice system.
The individual harms of racial profiling were central to the ECtHR’s reasoning in Basu v. Germany. But racist policing not only harms targeted individuals, it obscures our collective understanding of criminality and belonging. Racial stereotyping by law enforcement in the NSU (“Nationalsozialistischer Untergrund”) investigations serves as an example. For years, German law enforcement failed to recognize a pattern of racially targeted murders across the country. Early on, investigators concluded that the victims themselves were involved in criminal activity. These dangerous assumptions were based solely on racialized understandings of criminality; perhaps even on the implicit belief that the victims were not worthy of government protection.
Racial profiling serves a self-perpetuating logic. German law enforcement regularly denies or justifies the need for racial profiling by doubling down on racialized understandings of belonging. Some courts have endorsed racial profiling as a legitimate immigration enforcement tactic; ultimately perpetuating the idea that non-whiteness is inherently foreign. Black and other non-white Germans are expected to accept racialized targeting in the name of border control and safety.
While the recent ECtHR decision is promising, it will do little to transform visions of who belongs, is worthy of protection, and can exist free of law enforcement scrutiny. Counter-narratives continue to grow alongside racialized understandings of belonging. Resistance is our path forward.