Is it time for a European Convention against Racial Profiling?

Abstract

Four years after the murder of George Floyd and the global Black Lives Matter protests, racial profiling not only remains prevalent in law enforcement practices in- and outside Europe, but takes on new forms in the wake of technological developments enabling large scale data analysis and the use of algorithmic risk profiles. A few years ago, the European Court of Human Rights (ECtHR) first dealt explicitly with the issue of racial profiling in the twin cases of Basu v. Germany and Muhammad v. Switzerland. More recently, the ECtHR held in Wa Baile c. Suisse that Switzerland had violated the prohibition of discrimination by subjecting the applicant to racial profiling at Zürich train station, as part of a police action to apprehend persons without a valid residence permit. 1 While these judgments, especially in Wa Baile, go some way towards securing international State accountability for racial profiling, they also illustrate the difficulties of fighting such profiling as a form of structural discrimination under the ECHR. Meanwhile other human rights bodies, at the European and international levels, have both acknowledged the structural nature of racial profiling and published numerous policy guidelines and recommendations for positive State action to ensure non-discriminatory law enforcement. Yet, to date all of these instruments remain at the level of soft law. Despite the ECtHR's recent efforts, European human rights law thus does not impose legal obligations on States to actively prevent and combat racial profiling. This column signals this gap, and considers some of the pros and cons of adopting a European Convention against Racial Profiling.