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On 19 June 2020, the European Parliament passed a resolution “on the anti-racism protests following the death of George Floyd.”
The resolution acknowledged that Black, brown, and other people of colour across Europe are subject to aggressive policing and profiling. The resolution also called upon the European Commission “to come forward with a comprehensive strategy against racism and discrimination and an EU framework for national action plans against racism with a dedicated component on fighting against these phenomena in the law enforcement services, while taking an intersectional approach.”
The European Commission has promptly responded to calls for action against structural racism in Europe and will be releasing an Action Plan in September. Fair Trials provided the Commission the following recommendations to ensure that Europe takes bold action to end structural discrimination throughout its criminal legal systems.
Recommendations from Fair Trials for the European Commission on its Action Plan on Structural Racism
For over a decade, Fair Trials has worked to advance people’s fundamental rights to a fair trial in criminal justice systems. In Europe, Fair Trial has worked with the EU institutions on the passage and implementation of the Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings (the “Roadmap Directives”). The Roadmap Directives were passed in 2009 to strengthen mutual trust between Member State judicial authorities by creating shared standards for the protection of defence rights.[2] Since then, we’ve seen the importance of EU action on criminal justice so that all European states uphold people’s fundamental rights in criminal justice systems.[3]
But serious gaps remain. As the recent protests for Black Lives Matter across the continent highlight, for the EU to meaningfully uphold its values—as detailed in the Charter of Fundamental Rights of the European Union, Article 2 of the Treaty on European Union[4], and the Racial Equality Directive, among other provisions—urgent action is needed to dismantle structural racism in criminal justice systems. As the European Parliament’s resolution of 19 June 2020 “on the anti-racism protests following the death of George Floyd” (the “Black Lives Matter Resolution”) acknowledges, Black, brown, and other people of colour across Europe are subject to aggressive policing and profiling. We are encouraged by the European Parliament’s call for Europe-wide action on racial injustice, and for the Commission’s quick efforts to create an Action Plan.
As the EU recognises, structural racism is a fundamental problem, and it is not outside the bounds of concrete EU action—indeed, the EU’s own founding treaties require it to act and recognise that the EU has competencies across multiple areas such that it can have a real impact on people’s lives.
As leading experts in fair trial rights, human rights standards, and the rule of law, Fair Trials urges the Commission—and its partner EU institutions—to consider the following suggestions about how it should approach its Action Plan to dismantle structural racism in the area of criminal justice.
1. The Commission’s Action Plan should advance solutions to end structural discrimination in the entire criminal justice system, not just policing
While policing and police brutality have rightly been at the centre of discussions on racism in Europe, as the EU moves forward, its efforts should promise an end to structural discrimination throughout justice systems.[5] Existing studies in Europe confirm how discrimination is operationalised in criminal justice systems beyond policing, and how people of colour face disparate impacts within these criminal justice systems.
There is research confirming the impact of “illegal factors” such as gender and national origin[6] on prosecutorial and judicial decision-making. In one study in Germany, researchers found that in their decision making, prosecutors were influenced by the gender and nationality of the person being sentenced. Rather than a “neutral” application of the law to individual cases, these personal attributes of the person being sentenced influenced how decision makers applied the law, and their ultimate decisions in those cases. What’s more, the research showed that decision makers were unaware that they were being influenced by factors such as gender and national origin.
In another study about France’s criminal justice system, Virginie Gautron and Jean-Noël Retière showed how discrimination occurs at individual and structural levels—and at many decision points within the criminal justice system, from judicial decisions about pre-trial detention to sentencing.[7] After reviewing 7,500 cases spanning ten years and in six jurisdictions in France, the researchers found that judges were not, in fact, neutral to the personal characteristics of the person they are sentencing. They found that people born outside of the sentencing jurisdiction were more likely to face pretrial detention and prison sentences: 5.2% of people born outside of France are held in pretrial detention, compared with 1.8% of people born in France. One in six people from France faced prison sentences, compared to one in four people born outside of France.[8] These findings likely underestimate disparities given that many people of colour in France were born in the country.[9]
Why do these disparities exist? In part, it is because of racism and social attitudes. For example, according to the authors, decision makers bring their assumptions about people to the sentencing choices. They analyse who will return to court and therefore do not need to be detained pre-trial based on their subjective decisions about the person’s trustworthiness, social ties, and more. In other cases, people of colour face disparate outcomes because of intersecting societal reasons: people with more limited resources or social capital may have a harder time accessing community service alternatives to prison, for example, or judges may assume someone who is a migrant is unable to pay a fine and will sentence them to prison instead. The consequences of these biases are that at every stage of the criminal process—even after policing—people of colour are likely to face harsher consequences in criminal justice systems across Europe.
In taking up Action Plan on racism in Europe, we must look at the whole of our criminal justice systems so that we can understand how we may address discrimination.
2. The people impacted and their communities should lead, including in our collective efforts to understand racism in criminal justice systems
The EU has a responsibility to not only engage impacted people and their communities as consultants about these issues, but to change current power structures so that the people most impacted by structural racism may lead these efforts.
In addition to this general call to shift current power dynamics and have policy led by the people impacted, one specific area in which the EU should support communities to lead in is the area of data and information gathering. Disaggregated criminal justice data is currently unavailable in EU Member States and has been a longstanding issue.[10] The pros and cons of collecting such data and how it can be collected should be decided with the communities most impacted by these systems.
In the meantime, we suggest that the EU facilitate community-led independent, impartial, and standardised research on disparities and discrimination in Member State criminal justice systems, from policing to the end of the criminal justice process and reintegration. The EU should partner with community organisations, and may, in many cases, rely on smaller studies, personal accounts, and qualitative data. Such information will provide a robust view of what’s happening that will counter Member State narratives that there is no discrimination, and will continue to advance our understanding of the nature of the problem and the ways that we can ensure people’s equal access to fair trial rights across Europe.
3. The Commission’s approach to criminal justice should be comprehensive
As noted in the Parliament’s resolution, structural racism is “mirrored in socio-economic inequality and poverty, and these factors interact and reinforce each other.” Throughout Europe, inequality, poverty, and racial differences are often met with punishment rather than services, support, and other responses. Criminal justice systems often are tools of structural racism: they disproportionately target punishment on Black, brown, and other people of colour; punish and exacerbate poverty and other issues; and produce disparate consequences for people of color once in the criminal justice system. Taken together, punishment takes the place of equality, justice, and a robust society that allows all people to thrive and exercise self-determination.
The EU and Member State efforts to end disparities in criminal justice systems and the overuse of punishment should not be considered in a silo, and the solutions should not always be procedural changes within criminal justice systems (though these are, of course, important). The Action Plan must take a comprehensive approach that consider related policy issues and solutions so that Member States can both end discrimination and reduce their reliance on punishment. Such issues to consider include migration policy, labour, access to education, and the other policy areas already on the Commission’s radar as a part of this consultation. All relevant Commissioners and other EU entities should remain engaged in this issue—not just DG Justice.
To fully understand the problems, and the role of discriminatory criminal justice systems in our society, as the Parliament’s Black Lives Matter Resolution states, any EU approach will also have to consider race and ethnicity alongside gender, sexual orientation, poverty, immigration status, and more.
4. The Commission and other EU Institutions must be unequivocal in its commitment to recognising and ending structural racism in criminal justice systems
One key challenge in the EU and individual Member States is that there isn’t a clear recognition of the issues of discrimination and criminal justice. In part, as discussed above, this is because of a lack of data about who is targeted by criminal justice systems and their outcomes in those cases. Yet, at this point, sufficient data exist such that we can no longer deny that the problem exists —or argue that it only exists elsewhere, such as in the United States. The EU should acknowledge the problems clearly and show leadership in acting to address them.
In addition to the policy changes required, we also know that our decisions about criminal justice policy are not made in a vacuum but rather occur within our current narratives and cultural contexts. The EU should lead in shifting narratives about criminality, migration, race and ethnicity, and related topics so that Europe may realise the promises made in the Charter.
Finally, the EU should play a key role in getting Member States to recognise the problem, and in driving active steps.
Conclusion: Fair Trials and its network of over 180 criminal justice experts stand ready to help
We reiterate our gratitude to the Commission for taking up structural discrimination. As the Commission moves forward towards specific actions, policies, and initiatives, Fair Trials and its Legal Experts Advisory Board (LEAP)— a coalition of over 180 defence lawyers, academics, and civil society organisations from across Europe committed to advancing fair trial rights—stand ready to help.
LEAP brings to the table significant technical expertise on human rights, including the right to a fair trial and the rule of law in Europe. LEAP members have been essential to implementing the Roadmap Directives in their own States; challenging implementation issues in the domestic and European courts, and otherwise working to promote justice and equality in their jurisdictions and across Europe. What’s more, LEAP members have been coordinating over the last years to deepen Europe’s understanding of the intersection of racial justice and criminal justice. As we’ve said earlier, to-date, Member States often deny discrimination and racism are problems at all in criminal justice systems: LEAP has been at the forefront of showing otherwise and acting to end structural racism.
For example, in one project, Fair Trials is partnering with the Hungarian Helsinki Committee, the Bulgarian Helsinki Committee, APADOR-CH, and Rights International Spain on a study to assess how discrimination and unconscious bias towards Roma people might produce discriminatory outcomes in criminal justice systems in the EU. We are conducting qualitative research on the perspectives of criminal justice system decision makers towards Roma and of Roma. We will identify recommendations to address these challenges and raise awareness of the racism in criminal justice systems. In another initiative led by the Bulgarian Helsinki Committee, we are conducting interviews with people as they enter prison to collect voluntary data about racial and ethnic affiliations, and to better understand people’s experiences with the criminal justice system. We hope that the EU takes up structural racism in the EU in a robust way, and that LEAP may be helpful in the process.
Footnotes:
[1] Article 2 states that the European Unions is “founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities”.
[2] The Roadmap Directives include measures to ensure people’s access to a lawyer (including legal aid), interpretation assistance, and more.
[3] The work of robust implementation of these directives is ongoing.
[4] Article 2 states that the European Unions is “founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities”.
[5] We were pleased to see that the Parliament’s call for Member States to include justice systems in their national discrimination action plans; we include here some detail to frame these efforts.
[6] This study does not speak directly to race: because of data limitations in Europe studying national origin is often the only available proxy to begin to understand discrimination in our systems of justice.
[7] Virginia Gautron and Jean-Noël Retière, La décision judiciaire: jugements pénaux ou jugements sociaux? La Découverte, 2016/4 n 88, p 11-18.
[8] The authors note that these disparities cannot be explained by factors such as having more serious criminal records or charges: foreign born people did not have more serious records, and in fact they were overrepresented in what the authors call “petty crime of survival”, and less represented in more serious offences.
[9] See e.g., Qui sont les personnes incarcérées? Observatoire International Des Prison, available at https://oip.org/en-bref/qui-sont-les-personnes-incarcerees/ (explaining the undercounting).
[10] See e.g., Analysis and Comparative review of equality data collection practices in the European Union, European Commission (2017), available at https://op.europa.eu/en/publication-detail/-/publication/1dcc2e44-4370-11ea-b81b-01aa75ed71a1/language-nl.
