“Soon the police can be held responsible for discriminatory searches”

discussion

Publication date: 09-12-2022 11:42

Debate – by Aida Samani, civil rights advocate.

one exposed For what is called racial or ethnic profiling by the Swedish police today there are limited opportunities for redress. However, last winter, the Investigation into Expanded Protection against Discrimination proposed an amendment to the law that, if the proposal was adopted, would enable individuals to claim responsibility from the police body for discriminatory measures in relation to police action in the fight against crime.

to be exposed to Frequent and unexplained police searches are an experience shared by many who belong to ethnic minorities or suffer from racism in Sweden today. Young people, children and adults are subjected to discriminatory stereotyping, so-called ethnic and racial profiling, regarding driving a car, walking to school, using public transport or crossing Sweden’s borders. Ethnic and racial profiling means that authorities take measures against individuals on the basis of race or skin color as the basis for selection, rather than objective criteria. It can occur in connection with so-called “stop-and-search” situations, in which individuals are stopped by the police and subjected to an identity check or body search, but also in a number of other situations. For example, Scania Police’s illegal record of Roma constitutes ethnic profiling. The record was revealed in the fall of 2013 and then contained information about more than 4,700 Roma in Sweden, and it was ethnicity that formed the basis of selection for the police’s decision to enter their personal data into the registry.

Although posted Police records and other cases in which Swedish police have been criticized for racial and ethnic profiling In recent years, there is little research on this discriminatory classification. Therefore, civil rights advocates in cooperation with the Department of Criminology at Stockholm University released a “randomly chosen” report in 2017, which aims to make this phenomenon understandable in the Swedish context. In the report, people who have been subjected to ethnic and racial profiling in Sweden talk about how they are checked by the police several times a month. The stories show that controls are seen as unjustified and that respondents feel that their race or skin color is what motivates them. Several respondents also described it as humiliating to be subjected to police interference, and that they feel suspicious of bystanders regarding their examination. Respondents’ stories show many similarities with individuals turning to us in civil rights advocates for help after being subjected to police checks without permission, at least in describing such frequent interventions as an undesirable part of daily life.

lack of research The so-called equality data means that it is difficult to describe the prevalence of racial and ethnic profiling in Sweden in numbers. However, the Discrimination Ombudsman (DO) statistics on reports received between the years 2009-2020 show that reports against the police authority topped the list of reports under the “general employment” status type during those years. In addition, a State Department review of statistics shows that many of the reports against the police force relate to perceived ethnic or racial profiling during customs or police inspections, for example. It can therefore be assumed that ethnic and racial profiling occurs to a significant extent.

for those who They have been subjected to racial and ethnic profiling and who want to claim responsibility for what happened, but the possibilities are limited. The biggest obstacle is that the Swedish Discrimination Act does not currently prohibit discriminatory measures by the police. The so-called “treatment requirement”, Chapter 2 Section 17 of the Discrimination Act covers the treatment of police officers in relation to the measure being taken, but not the measure itself. Individuals who consider themselves to have been subjected to a discriminatory measure by the police have little chance of obtaining judicial review as to whether the measure was carried out in violation of the right not to be discriminated against. Anyone who believes they have been subject to discriminatory profiling can of course turn to the Ombudsman for Justice (JO), who has found several times that police interventions in connection with, among other things, body searches and house searches have been unjustified and disproportionate. , but the decision by the JO does not really imply compensation for the individual and does not have appreciable consequences for the police force in terms of financial loss. The limitations in the legislation also mean that the Discrimination Ombudsman (DO) has limited opportunities to exercise oversight over the police body. As was pointed out by the DO in a letter to the government in February 2014, which stated that this was unsatisfactory with regard to Sweden’s obligations under the EU Charter of Rights and the European Convention on Human Rights (ECHR).

That discrimination law does not The prohibition of discriminatory actions by police officers does not mean that discriminatory profiling is legal. As she pointed out in her letter, Sweden’s human rights obligations mean that Swedish authorities may not discriminate or impose unjustified and disproportionate restrictions on individuals’ freedoms and rights. Individuals can now file a compensation claim against the state or municipality for violations of rights pursuant to Chapter 3. Section 4 of the Torts Act. An individual who considers himself to have been discriminated against by the police in violation of the European Convention on Human Rights can, therefore, at least in theory, file a compensation claim against the state. However, this ruling is from 2020 and therefore has not yet been tested in law enforcement to a large extent. For an individual, it can also be seen as difficult, and fraught with financial risk, to single-handedly claim damages from the state. Essentially, an individual’s possibilities to seek and obtain redress for police discrimination are limited in practice.

Civil Rights Defenders He therefore indicated several years ago in a dialogue with the government the need to extend the prohibition against discrimination in the Discrimination Act so that measures taken by the police would also be covered. The lack of protection against discrimination has also been noted several times by international bodies that have examined Sweden. In relation to the UN Human Rights Committee’s review of Sweden in 2016, the Committee expressed concern that Swedish protection against discrimination does not cover all areas of public life. The Committee also noted that the Discrimination Ombudsman (DO), due to limitations in the legislation, could not exercise oversight over a police body when the authority was carrying out public activities. The European Commission against Racism and Intolerance, which oversees how Council of Europe member states conduct their work against racism and intolerance, also stated in 2018 in its recommendations to Sweden that Sweden’s discrimination law should contain a ban on discrimination by crime prevention agencies.

These opinions have Finally, on October 1, 2020, the government decided to set up an investigation that would, among other things, examine whether the anti-discrimination ban should be expanded to include more powers. In December 2021, the final report was published, which has since been up for consultation in the spring. Now it remains for the government to process the proposal and ultimately for the Swedish parliament to vote on it. In the final report, it is proposed to prohibit discrimination in Chapter 2. Section 17 should be expanded to include not only treatment, but also measures taken in relation to the public and within the framework of the employment of a person covered in whole or in part by the Public Employment Act (LOA). Thus, the changes will involve the police and other law enforcement agencies. The same applies to employees who perform public administration tasks within the framework of the activities of a private legal entity, such as, for example, security guards assigned to the private sector who perform work for municipalities.

If the proposal is approved Would it be an important step towards enabling people who have been discriminatory profiling by the police to claim responsibility and obtain compensation for what happened? The order suggested by the investigation could also contribute to enhancing confidence in the legal system, since it must currently seem to the layman that police authority measures are exempt from the prohibition of discrimination when several other powers are involved. As civil rights advocates emphasized in our opinion in the report, however, we believe the proposal should be articulated in parts to provide strong protections against discrimination. The investigation proposes, among other things, a vaguely worded exception to the prohibition of discrimination in measures relating to Sweden’s internal and external security. It’s certainly important not to abuse discrimination law to spread confidential information, but a highly worded exception risks creating a valve that enables law enforcement agencies to get away with it. This could undermine an important step towards accountability for those people who are routinely subject to unjustified police searches.

remains that See what effects the legislation, if passed, would have. The evidentiary difficulties surrounding discrimination cases will often remain in cases where an individual feels they have been subjected to a police search on discriminatory grounds. Therefore, it is important for the police authority to work internally with the issue of ethnic and racial profiling to ensure that working methods are not discriminatory and that individuals have access to documents that enable the court to review the circumstances. One way to do this, like the police in the UK, is to give the subject of the police check a receipt in respect of the check describing the reasons for and the outcome of the check. Civil rights advocates will continue to work for the police force to carry out development work related to racial and ethnic profiling. At the same time, we urge the government and Parliament to adopt the investigation proposal, which we hope will also stimulate the police body to carry out non-discriminatory crime-fighting work.