When It Comes to Race, European Justice Is Not Blind

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When It Comes to Race, European Justice Is Not Blind

In Bulgaria, half of the people in prison in 2015 were Roma. In Estonia, foreigners are disproportionately represented among people being held in pretrial detention. In Greece foreigners who are convicted of a crime receive heavier sentences than Greeks. Roma in Hungary are three times more likely to be stopped and searched by the police, and are less likely than non-Roma to be released awaiting trial.

These alarming findings are highlighted in a new scoping study, produced by the two of us with Justicia, the EU criminal justice reform network, that looked at the treatment of minority groups and non-nationals by the police and justice systems across 12 European Union member states. The conclusion, unfortunately, is that there is a significant level of unfairness in how people are treated, depending on their ethnic background.

This is believed to be one of the first studies of its kind. Despite efforts by the European Union to ensure that EU members apply common standards in their justice system in terms of arrest rights—such as ensuring early access to a lawyer—the question of standards of ethnic or racial bias have not been on the agenda.

There are no European Union–wide regulations that have standardized data collection and monitoring of outcomes in the criminal justice systems, with particular attention to ethnic and racial minorities, and non-nationals.

In addition, in most of the countries covered by the study, there was a lack of ethnic and racial data. Even when this data was gathered, we noticed a lack of consistent methods of their collection and application of concepts of race, ethnicity, and national origin.

For instance, Romania, the Czech Republic, Italy, Spain, Hungary, Sweden, Slovenia, and Estonia gather criminal justice statistics that are broken down by nationality, but mostly in a selective and inconsistent manner. Only the UK has been systematically collecting data on ethnic and racial minorities for the last four decades in different areas of social life, including in criminal justice. This makes it very difficult to monitor the practices and outcomes of criminal justice institutions and poses main challenges in cross-country comparisons due to lack of correlating data.

Despite these challenges, two principal areas of concern emerged from this study.

First, institutional bias. According to the research, stereotypes deeply rooted in the society are reflected in the practice of police officers, prosecutors, judges, and even, sometimes, in the practice of legal aid lawyers.

Researchers have noticed this practice, among others, in Bulgaria, Spain, or Sweden. In Romania, for instance, an independent expert noted that courtroom officials are deeply biased against people they believe are Roma. In Spain, the existence of clear institutional bias was paralleled by the disproportionate representation of non-nationals in crime rates statistics, pretrial statistics, or prison population statistics.

Additionally, implied bias was noted among Italian and Hungarian police officers, as well those in Romania, who during interviews indicated a common belief that all Roma have criminal characteristics. In the UK, police uses ethnic stereotyping as an evident tactic. Black people, for example, are four times more likely to be stopped and searched by the police than white people. Ethnic disparities introduced by stop-and-search, and other forms of police activity, remain significant throughout prosecution, conviction, and sentencing.

Second, the research clearly showed that non-nationals do not enjoy the same level of protection for their rights once they are arrested—principally due to a lack of access to both interpreters, and to information on their procedural rights in their own language. The situation is additionally exacerbated by the lack of effective legal aid provision in the majority of the 12 countries in the survey. While this affects detainees and suspects regardless of their ethnic identity or national status, it clearly becomes a far greater challenge when language barriers are also involved.

The limited methodology employed in this study—which is based largely on a survey of existing research and publicly available statistics supplemented by interviews with informative stakeholders—did not enable us to produce a comprehensive picture of existing disparities and their sources, but rather gave some snapshots of areas of greatest concerns. Yet it clearly demonstrates the extent of an issue that casts a shadow over the European Union’s ambitious efforts to introduce common standards of justice and rights across its member states. Having recognized the problem, it’s time to find ways to fix it.

Justicia: Comparative Report – Ethnic, Racial, or National Disparities in Criminal Justice

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Comparative Report – Ethnic, Racial, or National Disparities in Criminal Justice

 

30 Nov 2018: In 2017, under the existing European Commission Framework Grant for the Justicia Network, Open Society Justice Initiative conducted a small scale, ten-day scoping study to initiate these explorations and obtain an overview of current practices and main challenges as regards ethnic, racial, or national disparities in criminal justice.

The context for this research is that most European Union Member States have very little or no statistical evidence, research or information on how suspects and accused persons belonging to racial or ethnic minorities are dealt with throughout all stages of criminal proceedings and how they experience those proceedings.

The study consisted primarily of a desk review aiming to collect both quantitative and qualitative data and a secondary analysis of empirical data collected through semi-structured key informant interviews. We carried out the scoping study across Spain, Romania, Bulgaria, Slovenia, Estonia, United Kingdom, Czech Republic, Italy, Sweden, Cyprus, Greece, and Hungary. Assessments were completed in the fourth quarter of 2017, and results were presented in country – specific reports.

Most importantly, all twelve European Union Members States at took part in the research established that disparities exist for people of various ethnic, racial, and national origins, at least at some stages of their criminal justice systems and in some form. However, the questions surrounding the real scope of the issue, its sources, impacts on criminal justice proceedings and outcomes, and key points in the criminal justice chain resulting in disparate treatment of ethnic, racial, or national groups could not be answered through this study and as such remain unanswered and in need of further in-depth analysis.

To read the report click the link below.

 

19/12/2017: Civil society calls upon the ECtHR to confirm the unconditional right of access to lawyer in police custody

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Fair Trials intervention highlights essential role of lawyer

19 December 2017

On 20 December 2017, the Grand Chamber of the European Court of Human Rights will hear the case of Beuze v Belgium (no. 71409/10). Its decision in this case will have wide-ranging effects on the right to early access to a lawyer in criminal cases across Europe. The members of the JUSTICIA European Rights Network (a coalition of leading civil liberties organizations in Europe working on the right to a fair trial) believe that this case presents an opportunity for the Court to reinforce the protection of this fundamental human right. The JUSTICIA European Rights Network supports the intervention made by Fair Trials (the global criminal justice watchdog) in the case.

The case concerns a Belgian national, Philippe Beuze, sentenced to life imprisonment for intentional homicide. Mr Beuze was interrogated seven times by the police and twice by the investigating judge, and was denied the assistance of a lawyer each time. Without a lawyer, Mr. Beuze was unable to properly defend himself.

As Mr. Beuze’s case shows, the right to access a lawyer lies at the very foundation of the right to a fair trial and the prohibition against torture and ill-treatment, protected by the European Convention of Human Rights. Without a lawyer, individuals cannot adequately defend themselves; cannot make effective use of the key procedural safeguards, which are provided to suspects and defendants in criminal proceedings, and are open to manipulation and coercion by the state, a fact that has been repeatedly recognized by the Court itself. The case raises important questions regarding the moment at which the duty to provide legal assistance during the initial phase of criminal proceedings arises, and the circumstances under which that duty may be limited.

Unfortunately, the Court’s recent judgements have provided increasingly restrictive interpretations of the right to a lawyer under Article 6 of the Convention on the right to a fair trial. This appears to be a departure from its well-established standards set out in the 2008 case of Salduz v Turkey regarding the right to legal assistance in criminal proceedings, which was reinforced by numerous subsequent judgements, such as Dayanan v. Turkey and Aras v. Turkey (No.2).  In Salduz, the Court held that the right to a fair trial is breached if a lawyer is not provided from the first interrogation by police and if incriminating statements made in the absence of a lawyer are used for a conviction. In Dayanan and Aras the Court found violations of that right solely because the applicants were not allowed effective access to a lawyer during their pre-trial interrogations even though they did not make any incriminating statements.

Sadly, through a series of judgments in the past year – in the cases of Ibrahim v the UK, Simeonovi v Bulgaria and Artur Parkhomenko v Ukraine – the Court has effectively created the possibility that a conviction can be valid where the suspect is questioned without a lawyer (even in violation of the national law) and provides evidence in the course of the questioning, provided that the Court finds the proceedings “as a whole” are fair. This has provided a loophole through which criminal investigators can unlawfully deny a suspect a lawyer without any negative consequences, even when there are no compelling reasons to restrict access to legal assistance.

The Court’s recent case law has caused confusion across Europe. In the nine years since the Salduz decision, numerous criminal justice systems were reformed to guarantee a lawyer at the earliest stages and the European Union enacted a Directive inspired by it: the Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European Arrest Warrant proceedings. Among other things, the Directive seeks to ensure that people are treated equally wherever they are within the EU, guaranteeing the right to a lawyer everywhere and requiring that effective remedies are provided where that right is violated. In addition, the Directive does not condition access to a lawyer on the “overall fairness” of the proceedings.

The more recent case law of the Court threatens fundamentally to undermine this positive progress and to return European criminal justice to the days when your rights differ depending on the country in which you are arrested. We have seen on numerous occasions that the lack of clear rules and the existence of arbitrary restrictions upon early access to legal assistance weaken procedural safeguards, and undermine the fairness of the entire criminal process and its outcomes.

The Beuze case provides an important opportunity for the Court to underline the importance of the right to a lawyer from the outset of police custody, and to align the standards under ECHR and EU law in order to create a comprehensive system of protection of this fundamental right.

Ahead of the hearing before the Grand Chamber, we hope the Court upholds its original approach, and to guarantee that individuals cannot be convicted if were unlawfully denied early access to a lawyer in criminal proceedings. To hold otherwise would, in effect, give license to criminal justice authorities to flout the law, deny access to lawyer to suspects whenever this is most convenient and would unravel nearly a decade’s worth of positive progress across Europe.

Justicia members