May has not been a good month for policing in the EU. The service that they provide has been under the spotlight in various member states. The policing of racist violence is on trial in Germany, where the process against neo-Nazi Beate Zschäpe began this month. The alleged co-founder of the National Socialist Underground (NSU) terrorist group is accused with four other people of involvement in 10 murders of Turkish-Germans between 2000 and 2006, as well as in a bomb attack on a Turkish-German district of Cologne. The NSU had apparently believed that the German nation was under threat and had decided to save it by randomly executing Germans of Turkish descent. Each victim was shot: in the head, through the face, in the neck. The first victim was Enver Simsek, a flower seller from Nuremburg – he was found in the back of his delivery van with eight bullets in his body. He had been assassinated – shot at close range and his body fired into when he was already immobile. The last victim was Halit Yozgat, murdered whilst at work in his Internet cafe in Kassel. On trial is not only Zschäpe but the German police: they refused to acknowledge a racist motive behind the murders and treated them instead as gang killings, suspecting the families instead of supporting them. The catalogue of errors by law enforcement officials ensuing from that basic blindness has led to comparisons with the murder of black teenager Stephen Lawrence in Britain 20 years ago and similar accusations of institutional racism.
The continuing problem of racist and violent policing is highlighted by riots in Sweden. Six nights of violence in May exposed the hidden tensions between the police and minority ethnic communities: schools have been set ablaze, businesses smashed up and stones thrown at police. The battles have left the international image of peaceful Swedish integration that we all believed in tatters – as is often the case it was only the voiceless victims who knew the reality. The violence has apparently been a long time coming: police have for years harassed black and ethnic minority citizens, and even those white Swedes associated with them. As in Germany, blinkered police interpretation played a leading role: arriving home with his Finnish wife after being chased by a gang of youths, a 69-year-old Swede of Portuguese origin emerged from his house brandishing a knife to confront the marauders; police arriving on the scene assumed they were dealing with a situation of domestic violence, broke into his home and shot him dead, in front of his wife. Who needs Elizabethan drama? The 21st century is littered with its own tragi-farcical material. The police then apparently inflamed the situation by calling the rioters ‘monkeys’ and ‘negroes.’
Participants who attended the Matrix/ Leeds seminar on black experiences of policing in May 2012 may not be surprised to hear of these events in Germany and Sweden. The enduring authenticity of the story told by Embi Jallow of his experiences as a black man living in Sweden, and the sickening photos of the burnt body of Oury Jalloh in a German police cell will have already raised questions about the service provided by the police to black and migrant Europeans in other member states. Those who have seen the results of the first pan-European survey on racial discrimination in the EU will be aware that racial profiling is commonplace and that, unsurprisingly, most black and minority Europeans do not bother to report crimes against them due to a lack of trust in the police. If the Eurovision Song Contest were the Eurovision Policing Parade, there would be many forces in the EU receiving zero points.
This all adds up to a huge deficit in the state of policing in the EU. Fortunately policing is on the EU agenda – since the declaration of the Area of Freedom Security and Justice, co-operation in criminal matters has led to the adoption of an internal security policy, the Stockholm Programme, and the creation of agencies such as Frontex, Eurojust, Europol and CEPOL, a training college for the development of a European approach to policing. Unfortunately tackling racist and violent policing is not part of that agenda: although human rights are mentioned – in general and somewhat superficially – the specific problem of race and policing is absent. There is therefore no indication that the policing experiences of black and minority ethnic Europeans have been acknowledged by leaders in the EU or that the interests of this significant part of the population have been integrated into the development of law and policy on policing in Europe. As in 1957 when the original Treaty of Rome was signed, the interests of these Europeans are subject to a constitutional omission.
Were they minded to do so, how could EU leaders address violent and racist policing in the EU? This question is especially pertinent now, as the legal framework for EU action in this area is under review. In March the Commission put forward a proposal to reform the legal basis of law enforcement in the EU. Significantly, the objective is to enhance the democratic legitimacy and accountability of Europol by giving the European Parliament control over the activities of the agency. In addition, in order to streamline policing in Europe, the Commission has suggested a merger between Europol and CEPOL. A new ‘European Union Agency for Law Enforcement Cooperation and Training (Europol)’ will replace the existing Europol and CEPOL – the new Europol will absorb CEPOL and adopt its task to ‘improve mutual cooperation among law enforcement authorities in the European Union, to strengthen and support their actions as well as to deliver a coherent European training policy.’ As this process is taken forward there are at least five ways in which the interests of black and minority ethnic Europeans can be accommodated:
1. The Police Academy and the Fundamental Rights Agency (FRA)
Article 9 of the Commission Proposal establishes a new police agency, the Europol Academy, to replace CEPOL. The Academy is to be a ‘department’ within Europol responsible for the development, delivery and co-ordination of training for law enforcement officers. The Academy will provide training to officers working in cross border serious crime, terrorism, high-risk public order and sports events, humanitarian Union missions, as well as training on general law enforcement leadership skills and language competence. This training should be conducted in close collaboration with the FRA. The FRA currently co-operates with CEPOL in its training on human rights but such training should be more closely integrated into the work of the Police Academy of a more powerful Europol. Given the importance of law enforcement across the EU, the FRA should probably be at the centre of the new Europol itself, ensuring that all of its activities are informed by a respect for human rights. Indeed, preambular paragraph 62 of the Commission proposal states that the Regulation ‘respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union.’ Placing the practice of human rights at the centre in both the EU approach to policing and the training of police personnel in the EU would have an extremely positive impact on democratic legitimacy.
2. Work Priorities of the Police Academy
The Commission has also proposed a ‘’European Law Enforcement Training Scheme’ (LETS) to establish training on EU-related issues and make this systematically available to all law enforcement professionals of all ranks in all member states. The expectation is that the Police Academy will implement the Training Scheme in co-operation with national training academies. The four priority EU training strands identified at present include: ensuring basic knowledge of law enforcement co-operation in the EU; enhancing bilateral and regional policing co-operation; developing training on specific themes such as trafficking, cybercrime and corruption; and training for civilian missions outside the EU. A specific strand on non-racist policing should also be introduced to ensure that all law enforcement officers in the 28 member states deliver high quality policing that is not only efficient and effective but also informed by the pro-active rejection of racism. Ensuring anti-racist policing is as important for the democratic legitimacy of law enforcement elsewhere in the world as within the EU.
3. Chapter Against Racial Profiling
As mentioned above, research produced by the FRA demonstrates that racial profiling is a significant problem in many member states. EU leaders should recognize this with a Chapter in the Proposal focusing on erasing this pernicious policing practice across the EU. The contents of the Chapter Against Racial Profiling could be modeled upon the End Racial Profiling Act 2013, proposed by Ben Cardin of the US Senate. Like the Cardin Act, the Chapter should be designed to enforce the constitutional right to equal protection by eliminating racial profiling. It would create a legal prohibition on racial profiling, introduce obligatory training on racial profiling as part of law enforcement training and create a process to monitor racial profiling by asking all member states to collect data on routine activities. A ‘Racial Profiling Unit’ (see below) could be required to provide regular reports to assess the trends of racial profiling. Such a measure would immensely advance the democratic legitimacy of the EU as a whole, not just Europol, especially in the eyes of its black and ethnic minority citizens.
4. Data collection by Europol
A key task for Europol will be the gathering of data from all member states: one of the objectives of the Commission Proposal is to meet the goals of the Stockholm Programme by making Europol ‘a hub for information exchange between the law enforcement authorities of the Member States.’ Under Article 4, Europol will ‘collect, store, process, analyse and exchange information.’ Each member state will create a ‘National Unit’ to liaise with Europol; the National Unit is to provide Europol with ‘the information necessary for it to fulfill its objectives’ (Article 7). In addition, Europol will be able to directly retrieve and process information from publicly available sources and national information systems (Art 23). A consequence of racial profiling in the member states is that black and ethnic minorities are over-represented in national police data. The Commission proposal does not acknowledge this problem although preambular paragraph 62 in its Europol Package states that the Regulation ‘respects the fundamental rights to protection of personal data and the right to privacy as stipulated in Articles 8 and 7 of the Charter, and Article 16 of the Treaty.’ The legitimacy of data used by Europol will be unsafe if it does nothing to remove or at least ameliorate the bias arising from national policing practices. The proposal should therefore directly mention this problem and in order to address it, mandate a specific unit – the Racial Profiling Unit – to help those affected to have their details erased. The Racial Profiling Unit will be created as a formal EU agency in the Chapter Against Racial Profiling mentioned above.
5. Extend the EU Race Directive 2000/ 43 to include policing
Finally, action can be taken beyond the Europol Package. As I have mentioned elsewhere, the time may have come for the material scope of the Race Directive to be extended to cover policing. Events in Germany and Sweden demonstrate that the omission leaves victims helpless against poor policing practice within the member states. Were this to be included, all member states would be obliged to take action against institutional racism, just as Britain did in 2000. This reform would enhance the legitimacy of the EU as a whole by showing that it was serious about integrating Europe’s racial and ethnic minorities into the ‘peoples of Europe.’
EU leaders must take notice of their black and minority ethnic citizens as they reform the governance structures to develop a European approach to policing. Doing so would be a useful first step to build the bond of trust between police across the EU and these Europeans. It is not just in law, but also in everyday police practice that the democratic legitimacy and accountability of Europol to all European citizens needs to be enhanced.
Matrix Chambers and the School of Law, University of Leeds will be hosting a Roundtable on July 18th 2013 to explore these issues. Panellists include Paul Abbey (Left Alliance, Finland); Professor Ben Bowling (Kings College, London); Eva Cossé (Human Rights Watch); Embi Jallow (ENAR, Sweden); Aidan O’ Neill QC (Matrix Chambers); Sunny Omwenyeke (Loughborough University). Registration at firstname.lastname@example.org .
 COM (2013) 173 Final, 27 March 2013
 Decision 2009/371/JHA
 Decision 2005/681/JHA
 COM (2013) 172 Final, 27 March 2013