CYIL vol. 14 (2023)

LENKA SCHEU – VIOLETA VASILIAUSKIENĖ

CYIL 14 (2023)

Conclusions Profiling is a tool used by the law enforcement for the purpose of investigating and prosecuting a specific crime or for the purpose of crime prevention and can be carried out using a variety of criteria. Profiling can easily become problematic and discriminatory at a time when there is no specific operational information to identify the suspect and where the profiles are based not on behaviour but on general characteristics such as race, ethnicity, or religion. Racial profiling is considered a discriminatory practice of targeting individuals for suspicion of crime based on the individual’s race, ethnicity, religion, or national origin. The effectiveness of using these criteria in law enforcement for investigation of crimes is questionable, furthermore, illegal profiling can weaken trust in the relevant authorities, especially the police, and can stigmatize certain communities. It is not easily identifiable, and extensive methods and research have to be used to detect racial profiling. The Dutch courts had differing opinions on the practice of Dutch Marechaussee police of targeting individuals suspected of crimes. The District court ruled that ethnicity can be one of the criteria for singling out passengers, but not the only one, but this decision was overturned by appeal court, which banned the Dutch police from using racial profiling to select people for identity checks at the border. The Court ruled that the police department in question had discriminated between people on the basis of race. In view of the serious consequences of discrimination on the basis of race, the judgment held that such discrimination should only be carried out where there were particularly compelling reasons to do so. The practice of international human rights bodies has also developed the criteria for identity checks. The UN Human Rights Committee stated that identity checks based only on specific physical or ethnic characteristics are discriminatory. According to the Committee, the identity checks may not be carried out in such a way as to target only persons with specific physical or ethnic characteristics. To act otherwise would not only negatively affect the dignity of the persons concerned, but would also contribute to the spread of xenophobic attitudes in the public at large and would run counter to an effective policy aimed at combating racial discrimination. As seen from the practice of the ECtHR, it has derived the positive obligation of investigation of cases of racial profiling (to establish whether or not they were discriminatory) from the obligations inherent in Article 8 of ECHR, which, together with Article 14 serve and will serve as the main legal grounds for analysis of this question, for the development of principles applicable to such cases. The ECtHR has also developed its jurisprudence in two cases of alleged racial profiling. It stated that the applicants who claim to have suffered from racial profiling have to present an arguable claim that they may have been targeted on account of specific physical or ethnic characteristics, and then the burden of proof shifts to the Government to prove that difference in treatment was justified. Speaking about the duty to investigate instances of racial profiling, in the light of the Basu v Germany case, it can be stressed that in the view of the ECtHR, an internal investigation within the police is not sufficient to meet the criterion of independence of investigation of the instances of alleged discriminatory racial profiling. Furthermore, in the view of the Court, it is important that the states do what is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial, and objective decisions, without omitting suspicious facts

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