Ethnic profiling in the case of Lingurar v. Romania (4874/14), judgment of 16.04.2019

Introduction

Racial [ethnic] profiling represents a specific form of racial discrimination that has been defined as “the use by the police, with no objective and reasonable justification, of grounds such as race, color, languages, religion, nationality or national or ethnic origin in control, surveillance or investigation activities”. Because in the case of Lingurar v.Romania the European Court of Human Rights, for the first time explicitly used the term “ethnic profiling”, we’ll use this term when referring to profiling based on stereotyping in criminal cases.  There is no doubt that ethnical profiling is stereotyping. In other words, ethnic profiling is the act of suspecting criminal activity based solely on their ethnic origin.

Facts of the case

Lingurar v. Romania, case the European Court of Human Rights unanimously held, that there has been: a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights as concerned the ill-treatment of the applicant family during the raid, and two violations of Article 14 (prohibition of discrimination) in conjunction with Article 3 because the raid had been racially motivated and the related investigation had been ineffective. The Court found that there had been no justification for the disproportionate use of force during the raid on the applicant family’s home, which had left them with injuries requiring treatment in hospital. The applicants had been unarmed and had never been accused of any violent crime, while the four gendarmes who had raided their home had been highly trained in rapid intervention. The Court found that the applicants had been targeted because the authorities had perceived the Roma community in general as criminal, especially in cases involving illegal cut of timber in the forest. This action of the national authorities can be seen as ethnic profiling and it is discriminatory.
The applicants, Aron Lingurar, Ana Maria Lingurar, Aron Lingurar, and Elena Lingurar, are Romanian nationals who were born in in 1949, 1994, 1985, and 1957 respectively and live in Vâlcele. They are all Roma. According to the applicant family, several police officers and gendarmes wearing special intervention clothing, including balaclavas, broke down their front door during the raid in the early hours of 15 December 2011, dragged them out of bed and beat them. The two male family members were further abused in the yard, then taken to the local police station for questioning. They were released the same day with a fine for illegally cutting timber. The family went to the local hospital after the raid for treatment of abdominal and chest pain, and bruising. Medical reports for three of the applicants concluded that their injuries could have been caused by them being hit with hard objects.

Filing complaints before the national authorities

In 2012 the family lodged a criminal complaint accusing the law-enforcement authorities of violence. After an initial investigation concluded that there was not enough evidence to prosecute, the courts ordered the prosecuting authorities to carry out further enquiries, and in particular to justify the applicants’ injuries. The new investigation concluded that the male applicants must have been injured when the police had had to use force to immobilize them, while the women applicants’ injuries could be explained by “behaviour specific to Roma”, namely pulling their own hair and slapping themselves on their faces. The ‘behaviour specific to Roma’ phrase represents a clear stereotype and bias. Such approach suggests that Roma population, a culturally and linguistically diverse group, are portrayed as beggars, criminals, racketeers, vigilantes and lazy, being a target of marginalization and social exclusion, as well as continuous discriminatory and violent practices on an interpersonal, institutional, and national level, and at the end - all Roma have problematic behaviour [even the ones that don’t. The Government had argued that the use of force had been necessary because of the applicants’ aggressive behavior. However, no proceedings had ever been taken against the applicants for any violent crime! A central finding of the judgment of the European Court of Human rights, is that the authorities have “automatically connected ethnicity to criminal behavior”, which made their action discriminatory.
The prosecutor also noted that most of the inhabitants of Vâlcele were known for breaking the law and being aggressive towards the police. The courts finally dismissed the applicants’ complaints about the prosecutors’ decisions in 2014. They considered the prosecutors’ explanations for the applicants’ injuries to be plausible and found that the police officers had not used excessive force. Both the prosecuting authorities and the courts dismissed the applicants’ allegations that it was a systematic practice in the area for the police to attack the Roma community. Romaphobia seems to be typical in the daily activities of the national authorities.
All of this suggested a lack of an effective investigation. The European Court of human rights noted evidence provided by the parties showing that Roma communities were often confronted with institutionalized racism and were victims of excessive use of force by the law-enforcement authorities in Romania. The applicants themselves had complained to the authorities about such systemic violence during the investigation into their allegations. In such a situation, the authorities should have done everything possible to investigate whether discrimination had played a role in the raid. However, both the domestic authorities and courts had rejected the applicants’ allegations of discrimination without any in-depth analysis. Indeed, the prosecution had accepted the police’s justification for the use of force based on a perception that all Roma were criminals. It followed that there had also been a violation of Article 14 taken in conjunction with Article 3 as concerned the investigation.

Overview of the Decision of the Court for Ill-treatment

The applicants had been left with injuries requiring medical care after the raid, which had attained the minimum level of severity under Article 3 of ECHR – prohibition of torture and inhuman and degrading treatment. The Government had argued that the use of force had been necessary because of the applicants’ aggressive behavior. However, no proceedings had ever been taken against the applicants for any violent crime. In fact, there was nothing to suggest that the four gendarmes responsible for the raid on the applicants’ home, had been overwhelmed by the unarmed applicants. Moreover, there was no evidence, other than police statements, to corroborate the hypothesis that the female applicants’ injuries had been self-inflicted. Therefore, the Court was not convinced that the force used by law-enforcement officers during the raid had been proportionate and held that there had been a violation of Article 3.

Racist motives for the police raid

The Court noted that, to justify the raid, the Government had submitted a police intervention plan which had been drafted before 15 December 2011. The plan made it clear that the raid was to target ethnic Roma because of their anti-social behavior and the high crime rate among that group. Similarly, the investigators had explained the applicants’ alleged aggressiveness by their ethnic traits or habits “specific to Roma”. The applicants had thus been targeted because they were Roma and because the authorities had perceived the Roma community in general as criminal. That showed that the authorities had automatically connected ethnicity to criminal behavior. The Court found that had amounted to ethnic profiling of the applicants and that it had been discriminatory, in violation of Article 14 taken in conjunction with Article 3.
The Court held that Romania was to pay each applicant 11,700 euros (EUR) in respect of non-pecuniary damage and EUR 2,251 in respect of costs and expenses.

Conclusion

Ethnical profiling has become a worrying trend in recent practice in a contemporary democratic societies built on the principles of pluralism and respect for different cultures.There are number of cases in which relevant authorities used or are applying racial profiling on daily activities, but it is up to the national courts to prohibit and condemn such activities. Such cases are for example:
a case involving a family of African origin who were the only people to be subjected to an identity check on a German train, the Higher Administrative Court ruled in the family’s favor, arguing that police identity checks based on a person’s skin colour as a selection criterion for the control were repugnant to the principle of equality before the law.This was the case also in France, involving 13 individuals who complained about being subjected to identity control by the police because of their physical appearance.
In the Netherlands, the Supreme Court has questioned the discriminatory nature of a national police programme (known as the “Moelander” project) allowing the police officers to target cars with Eastern European plates when performing road checks.
In Sweden, the Svea Court of Appeal examined a claim by several Roma persons concerning their inclusion in a Swedish police register solely based on their ethnic origin. The court requested the government to prove that there was another valid reason for including these individuals in the registry. As the government was unable to provide the requested evidence, the court concluded that the persons’ ethnicity was the sole reason for their inclusion in the register, which represents a violation of the Police Data Act and of Article 14 (prohibition of discrimination) of the Convention in conjunction with Article 8 (right to respect for private and family life).
At the end we’ll only emphasize that it is up to the national courts to prevent such a discriminatory approach and to prevent allegations based on stereotypes such as “behaviour typical for Roma” or such. If there is any special need of a difference in treatment, it is up to the government to demonstrate that such difference was justified.

            For similar decisions of the Court for Human Rights, related to discrimination in criminal cases see the following decisions: Volodina v. Russia, O’Keeffe v. Ireland, Giuliani and Gaggio v. Italy, Gillan and Quinton v. UK, Sejdić and Finci v. Bosnia and Herzegovina, Timishev v. Russia, Basu v. Germany, Sabalić v. Croatia etc.