Police stops motivated by racial profiling (when the police stop persons on the basis of their appearance and not for what they have done) are a reality throughout Europe.
The various cases of strategic litigation addressing police practices of this kind brought to courts in Spain and France have put the judicial systems of the two countries to the test.
While on one side of the Pyrenees the test was passed with honors, Spain's judicial and administrative bodies have again failed the victims of these discriminatory police practices.
The cases presented to the French and the Spanish courts are so similar it is impossible not to compare them. In France, 13 young people, all black or North-African in appearance, reported having been stopped by the police solely on the basis of their physical appearance. They set the judicial wheels in motion, drawing upon their own testimonies as well as those of witnesses to the stops, who affirmed that there was nothing to motivate the police action except the ethnic appearance of the plaintiffs.
They also drew upon a series of reports by international organizations and statistics that demonstrate that police use of racial profiling is a widespread problem in France.
In Spain, it was a young man of Pakistani origin who appealed to the Ministry of the Interior after having been stopped by a National Police officer who justified himself by telling the plaintiff, “I’m asking for your papers because your black, and that’s it.”
The evidence submitted was similar to that which was offered in France: reports from domestic and international organizations as well as statistics demonstrating that persons belonging to minority groups are more likely to be stopped by the police. A notarized testimony was presented by a person who was with the plaintiff at the time of the stop and heard the ‘explanation’ offered by the officer (the witness explicitly mentions understanding the consequences of giving false testimony).
This case was a historic opportunity for Spanish courts to overturn their judgment in the Rosalind Williams case, in which the Constitutional Court itself ruled that using ethnic characteristics as the basis for police stops was not discriminatory in the context of migration control.
Even the organization supporting strategic litigation in both countries is the same: the Open Society Justice Initiative (together with SOS Racisme Catalunya in the Spanish case), so we may assume that the legal arguments applied in both cases were similar.
Very different judgments
Despite the similarity of the two cases, of the evidence provided and of the arguments used, the courts’ responses were very different.
The French Court of Cassation — after a long legal battle — ended up ruling in favor of each and every one of the plaintiffs, holding that the police stops to which they were subjected were illegal.
Meanwhile, in Spain, the Constitutional Court dismissed the appeal (arguing its supposed lack of constitutional relevance) of the previous ruling by the National High Court that acquitted the Ministry of the Interior after the plaintiff brought suit against that body for its failure to compensate him.
Inverting the burden of proof
The great difference in the responses of the judicial system in the two countries can largely be attributed to their respective positions regarding one of the key tools enshrined in European law for the purpose of effectively combatting discrimination: the inversion of the burden of proof.
For those not familiar with this, a simple example will serve: let's say I am a Roma woman and a real estate agency refuses to rent me an apartment because of my ethnic origin. It would be sufficient to demonstrate that this is the case (demonstrating, for example, that the same agency did rent an apartment to a non-Roma person with the same economic and employment situation as mine) in order to invert the burden of proof, obliging the real estate agency to prove that it did not discriminate against me.
This idea, enshrined in EU Law as well as the jurisprudence of the European Court of Human Rights, should be included in all but penal law whenever there are claims of discrimination. In Spain, this figure is only expressly regulated in labor law. Indeed, the same is true in France, but this sentence from the Court of Cassation opens the door to its possible application in other fields of law.
In the cases of police racial profiling taken to the French and Spanish courts, the inversion of the burden of proof was especially important, given the lack of transparency surrounding police actions in both countries. Unlike other countries in which stops and searches are documented together with the result of each stop and the ethnic appearance of the person stopped, in Spain and France persons who have been stopped have no means of documenting the police action in the event that they wish to lodge a complaint against the police for mistreatment.
On the other hand, the European Court of Human Rights has also established that statistics demonstrating that a given population is at greater risk of unfavorable treatment by the state may constitute adequate grounds for inverting the burden of proof in cases in which a specific victim claims discrimination.
On to Strasbourg?
Going back to the cases in question, the difference between the judicial rulings can be traced to the two countries’ different positions with respect to the evidence presented. On the one hand, the French Court of Cassation held that, given the information presented by the plaintiffs and in fulfillment of European standards, the court was obliged to invert the burden of proof. Given the inability of the state to demonstrate that it had not discriminated, the court was compelled to rule in favor of the victims.
On the other hand, the National High Court of Spain did not even admit the evidence provided, automatically giving the benefit of doubt to the Ministry of the Interior and the police (who, as we might expect, did not acknowledge the biased character of the police action in question).
As happens in those cases in which victims of human rights violations do not obtain justice in their own countries (which is where these infringements would best be addressed), the Spanish case may warrant appeal to Strasbourg. This case once again brings to light the gaps that exist in the country in terms of combatting discrimination. Given the poor response of the judicial bodies, it is now legislators’ turn to make up for these gaps, introducing European standards into the national legal system.
While European standards should be applied directly by the courts in each country, it is clear that each country must develop its own legal framework for enforcing them. It is urgent that we again take up the push to pass the bill on Equal Treatment and Non-Discrimination that has been stymied for the last five years and take measures to eradicate discriminatory police stops.