CYIL vol. 14 (2023)

CYIL 14 (2023) RACIAL PROFILING AND IDENTITY CHECKS … that leads to false arrests, as noted by the Police Brutality Centre. 3 Racial profiling with no objective and reasonable justification also has negative implications in other contexts, such as migration, 4 international migration of scientists, 5 etc. The aim of this publication is to analyse recent national (Dutch) and international (UN and ECtHR) jurisprudence on the topic of racial profiling in racial profiling while checking the identity of the persons and applicable principles. The Article will focus on the aspect of identity checks based on the racial features of persons and leave aside the analysis of the legality of the use of racial profiling for other types of police action. The cases of the ECtHR ( Muhmammad v Spain and Basu v Germany ) are the first cases that directly concern the practice of racial profiling during identity checks, as well as an earlier case of UN Human Rights Committee ( Rosalind Williams Lecraft v Spain ), which remains the only case of the mentioned by the Committee to date regarding racial profiling, thus may be considered relevant for the present analysis of the topic of the article. 1. The concept of racial profiling The European Commission against Racism and Intolerance (ECRI) has defined racial profiling as “The use by the police, with no objective and reasonable justification, of grounds such as race, colour, language, religion, nationality or national or ethnic origin in control, surveillance or investigation activities”. 6 Similarly, American Civil Liberties Union states that ‘racial profiling’ refers to the discriminatory practice by law enforcement officials of targeting individuals for suspicion of crime based on the individual’s race, ethnicity, religion or national origin. Criminal profiling, generally, as practised by police, is the reliance on a group of characteristics they believe to be associated with crime. Examples of racial profiling are the use of race to determine which drivers to stop for minor traffic violations (commonly referred to as ‘driving while black or brown’), or the use of race to determine which pedestrians to search for illegal contraband. 7 Profiling activity in general is one of many consequences of technological developments and is used in many areas of public security management, such as law enforcement, identity checks, and border controls. Profiling is a common and legal tool used by police authorities to investigate and prosecute crime, as well as to detect illegal immigration. 8 However according to the European Union Agency for Fundamental Rights, illegal profiling based upon race and ethnicity can weaken trust in the relevant authorities, especially the police, and can stigmatize certain communities. This tension can in turn escalate relations between 3 Police Brutality Centre, ‘What is Racial Profiling?’ accessed 22 June 2023. 4 SCHWARZ, I., Racializing freedom of movement in Europe. Experiences of racial profiling at European borders and beyond. Movements. Journal for Critical Migration and Border Regime Studies , 2016, 2.1. 5 LU, Shan, et al. Racial profiling harms science. Science , 2019, 363.6433: 1290–1292. 6 The European Commission against Racism and Intolerance, ‘On Combating Racism and Racial Discrimination in Policing” General Policy Recommendation No 11 (29 June 2007). 7 American Civil Liberties Union, ‘Racial Profiling: Definition’ (23 November 2005). accessed 22 June 2023. 8 SCHEU, L. ‘Racial profiling in the Czech Republic’ (2022) Public Security and Public Order (29) 213.

161