Addressing possible gaps in the Racial Equality Directive

The following is Fair Trials’ response to a European Commission consultation to help identify possible gaps in the Racial Equality Directive:

Fair Trials is the global criminal justice watchdog, campaigning for fairness, equality, and justice. The organisation highlights threats to justice, builds partnerships for reform, and campaigns for practical changes that fix failings within criminal justice.

Fair Trials coordinates the Legal Experts Advisory Panel (LEAP), a network of fair trial defenders that brings together lawyers, academics, civil society representatives, activists, and people with lived experience in the criminal justice system. LEAP works to uphold human rights, fairness, and justice in criminal justice systems across Europe, focusing on both the operation of these systems and the theories and issues that drive them.

We welcome the Commission’s consultation on possible gaps in the Racial Equality Directive. Structural racism exists at all levels in our European societies, and this should be reflected in the existing legal protection against discrimination for racialized people.

Fair Trials’ expertise is in law enforcement and criminal justice, but the reality is that experiencing injustice at the hands of these systems often has far reaching consequences on all other areas of life for racialized people and communities in Europe.

Below we provide some recommendations for scope expansion of the Racial Equality Directive. At the same time, we continue to emphasise the insufficiency of law on the books to meaningfully address pervasive racism in Europe’s systems, and call for investments in intersectional, community-led reflections and efforts that reimagine rather than reinforce existing systems and structures that perpetuate harm against marginalized communities.

1.  Law enforcement
   The police and all other authorities being entrusted by Governments with ‘legitimate violence’ mandates – from national security services to prison guards to the military – have a historic track record of undue suspicion, disproportionate surveillance, and brutality against racialized groups. This is not a question of individual overreach or abuse of power, but of structural bias in law enforcement. Supporting evidence includes judgements by the European Court of Human Rights recognizing ethnic profiling as basis for police action, and general anti-Roma racist climate in law enforcement in Romania, widespread Islamophobic police raids in Austria, and the many cases of police brutality documented by civil society across Europe. Recent instances of injustice have also brought to light how ethnic profiling is considered a legitimate basis for stop and search in Spain and the Netherlands, with young men perceived as Arab, Maghrebi or Black being 20 times more likely to be stopped by the police in France.There is increasing room for concern in light of expansion of policing powers amid the COVID-19 health crisis, that has yet again exacerbated violence against racialized groups. Automated decision-making via the use of ‘predictive’ AI models and other data-driven policing tools further hardwire discrimination, by building on racist assumptions to ‘assess risk’ of criminality in ways that are far from neutral and disproportionately target marginalized communities. The EU needs to address the inherent risk of data-based policing urgently, as its own policing agency, Europol, is set to see its mandate even further expand towards making predictive policing the new norm in Europe. Predictive policing is a controversial method known to have a disproportionate effect on racialized and marginalized communities. Europol would be allowed to seek “suspicious behaviors” and identify “persons of interest” by means of algorithmic data analysis of large datasets. This could lead to potentially severe violations of the right to non-discrimination as Big Data analysis relies on the prioritization of certain characteristics informed by racialized and other discriminatory assumptions. As such, the outcomes of Europol’s data analysis risk having a disproportionate impact on the fundamental rights of racialized and other marginalized groups.The reluctance of law enforcement to admit bias and commit to change is part of the problem[1], and why racialized communities need sustainable ways to be kept safe from these institutions – including through legal protections against discrimination by law enforcement and criminal justice authorities.
2. Criminal justice
   Structural racism is a problem beyond law enforcement, and manifests further into the criminal justice system. Racialized people are disproportionately criminalized. They are disproportionately policed, arrested and then prosecuted, held in pre-trial detention, and sentenced to harsher deprivation of liberty. They are also more likely to be coerced into accepting trial waivers, or otherwise have their procedural rights violated. Prisons are known to be violent and racist environments, and continuously expanding in Europe as the criminalisation net further widens. As a result of pervasive structural bias, the net cast by criminal justice systems is driven by racialized suspicion that assumes criminality and guilt based on racial or ethnic origin.Such racialised suspicion driving law enforcement activity also means that criminal justice systems are unable to meet the needs of racialised people who suffer harm. There is wide evidence of how racialised people will not turn to law enforcement authorities to seek protection from harm, fearing further harm from authorities. Recognizing this, civil society organisations are calling for less recourse to criminal law and more funding for alternative ways to prevent and deal with harm, including as a response to hatred and gender-based violence.A striking example that shows the necessity to include criminal justice within the scope of the Racial Equality Directive, is the extent of criminalisation of migration and solidarity in Europe, as well as the use of criminal justice tools in migration proceedings[2] – incredibly harmful and dehumanizing policy choices that continue to be made in relation to racialized refugees.

   Finally, the Racial Equality Directive should cover other forms of punishment such as civil and administrative sanctions, which can also lead to imprisonment – these types of proceedings should not be excluded from protection against discrimination.

3. Interconnectedness with other areas of life and policymaking
   In light of the suggested list of areas to be included in the revised scope of the Racial Equality Directive, a brief point on how these intersect with policing and criminal justice:

• Evictions – Being unhoused increases the chances of coming in contact with criminal justice, whether through direct criminalisation of homelessness, or other poverty-related offences such as sleeping rough or begging. Not having a stable address can further lead to higher chances of being detained pre-trial.
• Contacts with administration services – Similarly, any sort of irregularity in administrative status can have dire consequences, from fines that lead to imprisonment to administrative detention powers to expulsion of undocumented migrants. Administrative data is also used to populate ‘predictive’ and ‘risk-assessment’ models for policing and criminal justice, that further exacerbate bias and inequality.
• Access to cultural, social, sports and political life – Being in contact with the criminal justice system carries a stigma that directly impedes on entire people and communities’ access to all aspects of public life. Moreover, criminalisation and expansion of policing and detention powers, including through the use of electronic monitoring as an ‘alternative’ to detention, blur the lines between freedom and sustained control and surveillance. This extends to the families of people caught in the criminal net.As the reach of criminal justice is ever expanding (e.g., through COVID-19 related offences), policymakers need to consider how law enforcement and justice connect with different State institutions and processes to maintain structural racism throughout our societies, and approach protections against discrimination on racial grounds in a holistic manner.

Ways forward

1. Expand the scope of the Racial Equality Directive to address structural racism embedded in all State and State-sponsored institutions and processes that directly hinder the principle of equal treatment between persons irrespective of racial or ethnic origin, including law enforcement authorities and criminal justice systems.
2. Approach systemic inequality in a holistic and intersectional manner, considering how all our societies’ structures are built to interact and uphold one another.
3. Make legal protections effective and accessible to racialized groups, and ensure they lead reflection, design, and implementation efforts. Where individuals are affected by law enforcement or judicial decisions, ensure that remedies can be obtained promptly and are accessible from detention (including release).
4. Ensure that Equality bodies have adequate competences that cover victimization by law enforcement and criminal justice.
5. Ensure independent monitoring and assess impact of the Racial Equality Directive.
6. Acknowledge that law on the books doesn’t operate in a vacuum and remains an insufficient, albeit important, step in addressing racial inequality. Policymakers need to go beyond setting legal frameworks, including by divesting from biased systems that perpetuate harm – such as criminalisation, policing and incarceration as policy options, and investing in intersectional community-led reflections and initiatives to end harm.

Footnotes
[1] See, for instance, France’s plans to criminalize publishing content capturing police violence (dropped amid public outcry), or repercussions for antiracism protests or trying to document police interventions.
[2] This is for instance the case of the ‘overall fairness’ test that enables States to wave procedural rights in expulsion proceedings on national security grounds – which are often used to target Muslim migrants. See Concurring Opinion of Judge Pinto De Albuquerque in the ECtHR case of Muhammad and Muhammad v. Romania.