Frequently Asked Questions about racial profiling
Racial profiling is the checking of persons solely on the basis of their physical appearance rather than on the basis of suspicion. Skin colour or other ethnic or religious characteristics are taken as a cause for checks by the police, by immigration or customs officers or also by store detectives.
Identity checks which are carried out in the absence of (reasonable) suspicion without objective grounds on the basis of physical appearance are discriminating because illegal conduct is assumed on ethnic grounds or due to religious symbols. Thus, in particular non-white people are under general suspicion.
The General Act on Equal Treatment (German abbreviation: AGG) protects anybody against discrimination on the grounds of ethnic origin or racial prejudice. However, protection by the AGG only covers certain areas of life. The AGG does not offer protection against discrimination by government agencies.
However, identity checks without reasonable cause relating to characteristics of discrimination violate the principle of non-discrimination pursuant to Article 3 Para. 3 of the Basic Law. Furthermore, European and international law in force prohibit government acts of discrimination (e.g. Article 14 of the European Convention on Human Rights or the International Convention on the Elimination of All Forms of Racial Discrimination).
The Berlin Anti-Discrimination Act has applied at the Berlin Land level since June 2020. As opposed to the AGG, the Berlin Anti-Discrimination Act very concretely relates to discrimination by (Berlin) public authorities and it provides for a right to financial compensation for affected persons in case of a violation.
In case of discriminating identity checks by public authorities, courts have to examine whether these checks can, for instance, be substantiated with aspects concerning the public interest. In practice, racial profiling can hardly be justified for identity checks.
In April 2016, the Higher Administrative Court of Rhineland-Palatinate had to rule on a case where Federal Police officers had checked the identity of a black German family on a regional train. As for the questioning and the identity checks, the police officers referred to Section 22 (1a) of the Act on the Federal Police. Pursuant to that, the Federal Police may stop, question and check the identity of persons on certain trains to prevent or stop the illegal entry into the federal territory.
The court ruled that the police measure was unlawful. The skin colour of the persons checked had at least been one criterion (among others) leading to the decision to perform an identity check. The infringement of the prohibition of discrimination pursuant to Article 3 Para. 3 of the Basic Law had not been justified by a legitimate purpose of public interest. For a selection decision during a check to be based on “race” was serious to the point that it could not be justified with the purpose of preventing illegal entry into a territory (decision of 21 April 2016, reference number: 7 A 11108/14).
In a different case, on which the Higher Administrative Court of Northrhine-Westphalia had to rule in 2018, a black German was checked at the central station by two Federal Police officers. The police officers based their check on Section 23 (1) No. 1 of the Act on the Federal Police, pursuant to which the Federal Police is allowed to perform identity checks to avert danger. They justified the performed check by stating, among other things, that most thefts at the train station and in trains were carried out by men from the Maghreb states and/or by North African nationals. Moreover, they argued that it was predominantly “North and Black African perpetrators” who dealt with narcotic drugs at the central station.
The court ruled that the check was not justified because the allegations made by the police officers could not be confirmed by statistical evidence. Furthermore, the court pointed out that a measure based on grounds of discrimination had a stigmatising effect and that, for this reason, there were also increased requirements with respect to a justification (decision of 7 August 2018, reference number: 5 A 294/16).
If you are subject to racial profiling you can contact the Federal Anti-Discrimination Agency or a counselling centre in your vicinity.
In addition, affected persons are advised to note down the name and the police station of the officers on duty as well as all circumstances of the incident as precisely as possible and, if necessary, to address potential witnesses in order to be able to take action against the measure afterwards, for instance by making a disciplinary complaint.
Judicial review can be sought by way of action requesting a declaration that the expired administrative act was unlawful. In that context, courts retroactively look into whether a police check was against the law. If a breach of official duty was determined by the court, affected persons may also, in further civil proceedings, potentially claim damages.
In Rhineland-Palatinate, Schleswig-Holstein and in Baden-Württemberg, you can also ask an independent complaints body to review the accusations of racial profiling.
The Federal Anti-Discrimination Agency campaigns for an independent federal complaints body that people can contact in case of racial profiling by Federal Police officers.
The Federal Anti-Discrimination Agency counsels and assists people who feel discriminated against on the grounds of ethnic origin, gender, religion or belief, disability, age or sexual orientation. The General Act on Equal Treatment (German abbreviation: AGG) provides the basis for the counselling. However, the Act cannot be applied to cases of racial profiling by government agencies.
Nonetheless, the Federal Anti-Discrimination Agency is in the position to inform affected persons of their rights. Moreover, the Federal Anti-Discrimination Agency can act as a mediator, for instance, by asking the Federal Police for a statement or by referring people to specialist units.