This week at the European Court of Human
Rights (ECtHR) in Strasbourg, a suit was filed against the Spanish State for not
taking effective measures against ethnic profiling, the practice of basing police
stops upon prejudices associated with the color of individuals’ skin.
'Because you're black'
Zeshan Muhammad, a resident of Santa Coloma de Gramanet, Barcelona, since childhood, holds a Spanish residency permit. He was stopped by a National Police officer in Barcelona on May 29, 2013.
The officer admitted that he would not have stopped a white person in similar circumstances, and he told Muhammad that he did so in this case “because you’re black, period!”
With the support of SOS Racisme Catalunya and the Open Society Justice Initiative, Muhammad is pressing forward with this strategic litigation in order to see not only that this violation of his rights be recognized and compensated, but also to put an end to this discriminatory police practice endured by an enormous sector of the population: all those who are not white.
The claim filed before the ECtHR argues that stopping a person on the basis of prejudices associated with his or her skin color, known as ethnic profiling, infringes on the individual’s right to not suffer discrimination (as stated in Article 14 and Protocol 12 of the European Convention of Human Rights) as well as the right to privacy (as stated in Article 8 of the same Convention).
"That a person may be stopped and identified by the police at any moment, in any place or situation, simply for the color of his/her skin, is illegal. It constitutes discrimination, and seriously threatens personal autonomy and a person’s sense of identity," explains the lawyer Mercedes Melón.
By not taking measures to effectively avoid this kind of police action, the Spanish state is violating human rights.
Spain court rejects claim
Last November, Spain's Constitutional Court rejected Muhammad’s case, considering it "not relevant" despite the fact that the appeal claimed that stops and searches based on ethnic profiling violate both the Constitution and international norms that are binding on Spain, and that this discriminatory police practice affects thousands of people in our country.
The Constitutional Court itself, through the precedents it has set, has lent legitimacy to these systematic violations of human rights, as acknowledged by the organs of the Council of Europe.
In 2001, the Constitutional Court confronted a similar claim filed by Rosalind Williams, and ruled that it was legal and legitimate to stop-and-search non-white persons on the grounds that "normally Spanish citizens are white."
Verdict insults victims
In response to this ruling, the United Nations Human Rights Commission, after being approached by Williams, ruled that this practice is discriminatory and illegal, and urged the Spanish state to scrap it.
But the Constitutional Court did not take advantage of the historic opportunity presented by Zeshan Muhammad’s case to make a different ruling in agreement with the UN, and to establish that ethnic profiling is illegal and discriminatory.
For all these reasons, according to the associations that support Muhammad, the Constitutional Court’s ruling constitutes an insult to the victims of these discriminatory police practices and a ruling unworthy of a Constitutional Court that claims to protect fundamental rights.
Spain out of step with Europe
The Constitutional Court’s decision in Mohammad’s case differs from court decisions made in other European countries: The day after the Constitutional Court’s ruling, the French Court of Cassation ruled that police stops on the basis of ethnic profiles are illegal. In Sweden, the government has been found responsible for ethnic profiling for establishing and maintaining a register of Roma people.
The UN Human Rights Commission, the Committee for the Elimination of Racial Discrimination of the UN, the UN Special Rapporteur on racism, the Committee of Ministers of the Council of Europe and the Spanish public defender have all acknowledged the systematic practice of ethnic profiling in Spain and consider it a violation of the fundamental rights of individuals, urging its eradication.
The human rights organizations that lent legal support to Zeshan Muhammad - SOS Racisme Catalunya and the Open Society Justice Initiative - look to the ECtHR in hopes of eradicating stops on the basis of ethnic profiles, a very habitual discriminatory practice that not only discriminates against its victims but also criminalizes them.