CYIL vol. 14 (2023)

CYIL 14 (2023) RACIAL PROFILING AND IDENTITY CHECKS … random checks on travellers within the European Schengen border-free zone. However, the police are still entitled to carry out random checks on the basis of information and experience gained. 23 The court ruling made it clear that the border police must change their practices with immediate effect, regardless of whether the state appeals the ruling to the Supreme Court. The court recognized that ethnic profiling leads to people not feeling accepted in society and being treated as second-class citizens. The Court of Appeal emphasised that the methods of the border police had led to stigmatisation and feelings of pain and frustration among those selected for border checks. 24 3. The practice of UN Human Rights Committee on racial profiling The practice of international treaty bodies on racial profiling is very scarce. The only decision of the United Nations Human Rights Committee that has dealt with the question of racial profiling in views presented by Communication submitted by Rosalind Williams Lecraft against Spain, 25 therefore it is included in this article. The author, who is a person of colour and is originally from the USA, had acquired Spanish nationality in 1969. Regarding the facts of the case, the Committee indicates that “on 6 December 1992, she arrived at Valladolid railway station from Madrid with her husband and son. Shortly after she got off the train an officer from the National Police approached her and asked to see her National Identity Card. The police officer did not ask anyone else who was on the platform at that time, including her husband and son, for their identity cards. The author asked the police officer to explain the reasons for the identity check; the officer replied that he was obliged to check the identity of people like her, since many of them were illegal immigrants. He added that the National Police were under orders from the Ministry of the Interior to carry out identity checks of “coloured people” in particular.” 26 Later they were escorted to an office in the railway station and the officer recorded their personal details as well as gave them his details which he refused to do earlier. Mrs Lecraft filed complaints with police, which were dismissed later by the courts. The last instance court – Spanish Constitutional Court – has ruled on 29 January 2001 that it is permissible to use the criterion of race, as it “merely indicat[ed] a greater probability that the person concerned was not Spanish.” 27 In the opinion of the Spanish Constitutional Court, “none of the circumstances surrounding the incident suggest that the National Police officer’s conduct was dictated by racial prejudice or any particular intolerance of members of a specific ethnic group.” 28 The Spanish Court stressed the following aspects: 1) the place : a railway station, a place of transit, where the identity checks are more likely; 2) the inconvenience experienced is minor and reasonably acceptable part of daily life;

23 KIRBY (n 20). 24 The Public Interest Litigation Project (n 13).

25 UN Human Rights Committee, ‘Views of the Human Rights Committee under Article 5(4) of the Optional Protocol to the International Covenant on Civil and Political Rights, 96th session, concerning communication no. 1493/2006’ (No. CCPR/C/96/D/1493/2006, 17 August 2009) accessed 22 June 2023. 26 Ibid. 27 Ibid, p. 5. 28 Ibid.

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