The Politicization of Police Stops in Europe: Public Issues and Police Reform (Palgrave's Critical Policing Studies) 303135124X, 9783031351242

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PALGRAVE‘S CRITICAL POLICING STUDIES

The Politicization of Police Stops in Europe Public Issues and Police Reform Edited by Jacques de Maillard Kristof Verfaillie · Mike Rowe

Palgrave’s Critical Policing Studies

Series Editors

Elizabeth Aston School of Applied Sciences Edinburgh Napier University Edinburgh, UK Michael Rowe Department of Social Sciences Newcastle City Campus Northumbria University Newcastle upon Tyne, UK

In a period where police and academics benefit from coproduction in research and education, the need for a critical perspective on key challenges is pressing. Palgrave’s Critical Policing Studies is a series of high quality, research-based books which examine a range of cutting-edge challenges and developments to policing and their social and political contexts. They seek to provide evidence-based case studies and high quality research, combined with critique and theory, to address fundamental challenging questions about future directions in policing. Through a range of formats including monographs, edited collections and short form Pivots, this series provides research at a variety of lengths to suit both academics and practitioners. The series brings together new topics at the forefront of policing scholarship but is also organised around who the contemporary police are, what they do, how they go about it, and the everchanging external environments which bear upon their work. The series will cover topics such as: the purpose of policing and public expectations, public health approaches to policing, policing of cyber-­crime, environmental policing, digital policing, social media, Artificial Intelligence and big data, accountability of complex networks of actors involved in policing, austerity, public scrutiny, technological and social changes, overpolicing and marginalised groups, under-policing and corporate crime, institutional abuses, policing of climate change, ethics, workforce, education, evidence-based policing, and the pluralisation of policing.

Editorial Board: Dr Matthew Bacon (University of Sheffield) Dr Isabelle Bartkowiak-Theron (University of Tasmania) Professor Sofie de Kimpe (Free University Brussels) Professor Jacques du Maillard (CESDIP, France) Professor Nick Fyfe (Robert Gordon University) Dr Laura Huey (University of British Columbia) Dr Bethan Loftus (Bangor University) Dr Ali Malik (Northumbria University) Professor Monique Marks (Durban University of Technology) Dr Angus Nurse (Middlesex) Dr Louise Porter (Griffith University) Dr Pamela Ugwudike (Southampton University) Professor James Willis (George Mason University) Dr Andrew Wooff (Edinburgh Napier University) Prof. K. Jaishankar, (Raksha Shakti University)

Jacques de Maillard Kristof Verfaillie  •  Mike Rowe Editors

The Politicization of Police Stops in Europe Public Issues and Police Reform

Editors Jacques de Maillard University of Versailles Saint-Quentin-en-Yvelines Cesdip, Guyancourt, France

Kristof Verfaillie Vrije Universiteit Brussel Brussels, Belgium

Mike Rowe Management School University of Liverpool Liverpool, UK

ISSN 2730-535X     ISSN 2730-5368 (electronic) Palgrave’s Critical Policing Studies ISBN 978-3-031-35124-2    ISBN 978-3-031-35125-9 (eBook) https://doi.org/10.1007/978-3-031-35125-9 © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer International Publishing AG, part of Springer Nature 2024 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration: Colors Hunter-Chasseur de Couleurs/Getty Images This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland Paper in this product is recyclable.

In memory of Dr Vicky Conway.

Preface

The chapters collected here are one part of the outputs that have emerged from participants on an EU-funded Collaboration on Science and Technology (COST) Action on Police Stops. This Action began work in 2018 with four key themes. We explored: the practice of police stops; how those stops were experienced; the ways in which the police were accountable for their actions; and the political and social context in which police stops took place. This volume is the output of the last of these themes. Specifically, we wanted to understand why it was that a practice so controversial in the United States and the United Kingdom had received comparatively little attention elsewhere among EU states. What was it about the histories, legal systems or social fabric of countries that might influence the prominence of police stops as a public issue. In answer to so broad a question, we find the echoes of colonialism in the United Kingdom, France, Belgium and the Netherlands. Recent experiences of authoritarian government in Eastern Europe were a more pertinent influence, tending to make for more tolerance of policing as it reformed. Across the south of Europe, in particular, migration has also played into the mix. But these grander narratives are then the backdrop to local dramas, whether that be deaths at the hands of the police or controversies over the misuse of powers.

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We bring together here thirteen chapters exploring the rise, fall and rise again of policing as a public issue to further our understanding and, perhaps, to prompt reflection and a reinvigorated debate. But we do so while reminding readers that this is one element of the output from the COST Action on Police Stops. There will be a second volume in Palgrave’s Critical Policing Studies series exploring the governance and accountability of police stops. There has also been a special issue of the Journal of Organizational Ethnography and a podcast series (Vos Papiers S’il Vous Plait) as well as papers and reports (currently available at: polstops.eu/). Guyancourt, France Liverpool, UK  Brussels, Belgium  January 2023

Jacques de Maillard Mike Rowe Kristof Verfaillie

Acknowledgements

The editors would like to thank the authors of the chapters and other contributors to a series of online workshops in which these were developed during the pandemic. While these were not the convivial, in-person symposia we might have wished for, they did serve to bring out the themes and issues that you will find in this volume. We would also like to thank Sofie De Kimpe as the Chair of the COST Action on Police Stops for her support, and for the invaluable assistance of Mirko Miceli and Irina Baraliuc with all the details. Finally, thank you to the staff at Palgrave for their patience as this collection has come together. January 2023

Jacques de Maillard, Mike Rowe, and Kristof Verfaillie

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Contents

1 Police  Stops in Europe: A Citadel Under Siege, But Still Standing  1 Jacques de Maillard, Mike Rowe, and Kristof Verfaillie Part I Police Stops, Protest and the Democratisation Process  25 2 The  Rise of Police Stops as a Public Issue in Twenty-First Century Poland 27 Dorota Czerwińska 3 The  Issue of Police Stops in Croatia 51 Ruža Karlović, Željko Karas, and Ivana Glavina Jelaš 4 Police  Stops in Hungary: In the Light of Public Debates and Media Coverage 73 Valéria Kiss, István Hoffman, and Fruzsina R. Tóth 5 Policing  Migration, Protest, and Sovereignty: The Politicisation of Stop and Search Practices in Spain 97 Cristina Fernández-Bessa, Manuel Maroto-Calatayud, and José A. Brandariz xi

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Part II Ethnic Profiling in European Countries 121 6 Contrôles au faciès in France: From Denial to Recognition to Inaction123 Magda Boutros 7 Human  Rights, Criminalisation of Migrants and Racism Debates: Public Discussions About Police Stops and Ethnic Profiling in Finland147 Suvi Keskinen and Markus Himanen 8 Police  Identity Checks in Belgium: A Critical Media Content Analysis171 Ludovic De Vocht, Antoinette Verhage, and Sofie De Kimpe 9 Police  Stops in Norway: Public Controversies and Minority Status197 Helene O. I. Gundhus and Randi Solhjell Part III Political Debates, Limitation and Extensions of Police Powers 221 10 The  Power of a Stooshie: Learning the Lessons of Stop and Search in Scotland for Implementing Organisational Change in Policing223 Megan O’Neill 11 Contextualising  Police Stops in Public Debates: Policy Turning-Points in Germany245 Hartmut Aden, Alexander Bosch, Jan Fährmann, and Roman Thurn 12 The  Politics of “Stop & Search” in the Netherlands: A Process of Juridification267 Jan Terpstra and Renze Salet

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13 Police  Stop and Search Practices in Austria289 Hannah Reiter 14 Regulating  Stop-and-Search in England and Wales: Public Controversy as a Catalyst for Control311 Estelle Marks and Ben Bowling I ndex339

Notes on Contributors

Hartmut  Aden  Hochschule für Wirtschaft und Recht Berlin, Berlin Institute for Safety and Security Research (FÖPS Berlin), Berlin, Germany Alexander  Bosch,  sociologist and ethnographer, works at the Berlin Institute for Safety and Security Research (FÖPS Berlin) at the Berlin School of Economics and Law (HWR Berlin). Magda Boutros  University of Washington, Seattle, WA, USA Ben Bowling  King’s College London, London, UK José A. Brandariz  is Professor of Criminal Law and Criminology at the University of A Coruña. Dorota Czerwińska  University of Wrocław, Wrocław, Poland Sofie De Kimpe  Vrije Universiteit Brussel, Brussels, Belgium Jacques  de Maillard University Versailles, France

of

Versailles-Saint-Quentin,

Ludovic De Vocht  Vrije Universiteit Brussel, Brussels, Belgium Jan Fährmann  is a lawyer and criminologist. He works in a law firm for criminal law, in research and teaching at the Berlin School of Economics and Law and in a parliamentary faction. He works in the Federal Ministry of Health of the Federal Republic of Germany. xv

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Notes on Contributors

Cristina  Fernández-Bessa  is a Ramón y Cajal distinguished research fellow at the University of A Coruña. Ivana Glavina Jelaš  Police College, Zagreb, Croatia Helene  O.  I.  Gundhus is Professor and Head of Department of Criminology and Sociology of Law at the University of Oslo, and Professor II at the Norwegian Police University College. Markus Himanen  University of Helsinki, Helsinki, Finland István  Hoffman,  PhD, dr. habil. (1981), is a professor at the Eötvös Loránd University (Budapest, Hungary), Faculty of Law, Department of Administrative Law, a senior research fellow at the Centre for Social Sciences (Budapest, Hungary), Institute for Legal Studies, and university professor at the Maria Curie-Skłodowska University (Lublin, Poland), Faculty of Law and Administration. Željko Karas,  PhD, is a college professor and Vice Dean of the Police University College in Croatia. Ruža Karlović  Police College, Zagreb, Croatia Suvi Keskinen  is Professor of Ethnic Relations at the Swedish School of Social Science, University of Helsinki, Finland. Valéria  Kiss,  PhD (1983), is an assistant professor at Eötvös Loránd University, Center for Theory of Law and Society. Estelle Marks  King’s College London, London, UK Manuel  Maroto-Calatayud Complutense University of Madrid, Madrid, Spain Manuel  Maroto-Calatayud is Professor of Criminal Law and Criminology at the Complutense University of Madrid. Megan O’Neill  University of Dundee, Dundee, UK Hannah Reiter  is a senior researcher with VICESSE (Vienna Centre for Societal Security). Mike Rowe  University of Liverpool, Liverpool, UK

  Notes on Contributors 

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Renze  Salet  was Assistant Professor of Criminology at the Radboud University, Nijmegen, the Netherlands. Randi  Solhjell is a postdoctoral researcher at the Department of Criminology and Sociology of Law, University of Oslo. Jan  Terpstra is Emeritus Professor of Criminology at the Radboud University, Nijmegen, the Netherlands. He is also a research fellow at Free University of Brussels (Belgium) and at Leyden University (campus the Hague), the Netherlands. Roman Thurn  is finishing his doctorate at the Institute of Sociology at the Ludwig-Maximilians-Universität in Munich. He is a research assistant at the Berlin School of Economics and Law. Fruzsina R. Tóth  is an assistant professor at Eötvös Loránd University, Center for Theory of Law and Society. Kristof Verfaillie  Vrije Universiteit Brussel, Brussels, Belgium Antoinette Verhage  University of Gent, Gent, Belgium

Abbreviations

ACC AEL ALES BBC BFMTV BLM BUSSS BVODH CERD CESDIP CJPOA CND CNP COST CUP ECHR ECRI ECtHR EELV EHRC

Assistant Chief Constable Arabic European League, Belgium Austrian Centre for Law Enforcement Sciences British Broadcasting Corporation Television News Channel, France Black Lives Matter Best Use of Stop and Search Scheme, England and Wales Neighbourhood Brigades of Observation of Human Rights, Spain Committee on the Elimination of Racial Discrimination Centre de Recherches Sociologique sur le Droit et les Institutions Pénales, France Criminal Justice and Public Order Act (1994), England and Wales Campaign for Nuclear Disarmament Spanish National Police European Cooperation on Science and Technology Popular Unity Candidacy, Spain European Convention on Human Rights European Commission against Racism and Intolerance European Court of Human Rights Green Party, France Equality and Human Rights Commission, England and Wales xix

xx Abbreviations

ERC EU EUROCRIM FI FRA HMIC

Republican Left of Catalonia, Spain European Union European Society of Criminology Conference France Insoumise, political party Fundamental Rights Agency Her Majesty’s Inspectorate of Constabulary, England and Wales HMICS Her Majesty’s Inspectorate of Constabulary for Scotland HRW Human Rights Watch HS Helsingin Sanomat newspaper, Finland IAA Internal Affairs Act, Croatia IAG Independent Advisory Group ICERD UN International Convention on the Elimination of All Forms of Racial Discrimination ID Identity IRA Irish Republican Army JCHR Joint Committee on Human Rights, UK LDO Equality and Anti-Discrimination Ombudsman, Norway LOPSC Law for the Protection of Public Security, Spain LPF Law on the Police Function, Belgium NATO North Atlantic Treaty Organization NGO Non-Government Organization NPD National Police Directorate, Norway NSSU National Stop Search Unit, Scotland OMOD Center for Social Justice, Norway ORF National Broadcasting Service, Austria ORMO Volunteer Reserve of the Citizens’ Militia, Poland OSJI Open Society Justice Initiative PACE Police and Criminal Evidence Act (1984), England and Wales PCF French Communist Party PGPD Coalition for the Police Management of Diversity, Spain PIPE Programme for Effective Identity Checks Projects, Spain QC Queen’s Council SEPOS Social Exclusion, Polarization and Security in the Nordic Welfare State research project SHRC Scottish Human Rights Commission SNV Serbian National Council

 Abbreviations 

SPA SPG SPÖ STEPSS SUP TA UDI VwGH YLE

Scottish Police Authority Police Security Act, Austria Social Democratic Party, Austria Strategies for Effective Police Stop and Search, Spain Unified Police Union, Spain Terrorism Act (2000), England and Wales Centre-right party, France Supreme Administrative Court, Austria Yleisradio, Finnish National Broadcasting Company

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List of Figures

Fig. 4.1

Number of ID checks by the Hungarian Police (2010–2018). Source: Statistics of the activities on protecting public order (Hungarian Police) (http://www.police.hu/sites/ default/files/Kozrendvedelem%20HK%202018.%2012. pdf, downloaded on 22nd August 2021) 82 Fig. 4.2 Police stops in Belügyi Szemle 2015–2019 88 Fig. 4.3 Stop and search related to political and public issues (own edition)90 Fig. 4.4 Normalization through stop and search 91 Fig. 4.5 Stop and search in crime news 92 Fig. 4.6 Articles specifically on the work of the police 92 Fig. 4.7 Police abuse of power 93 Fig. 6.1 Number of parliamentary sessions in which “contrôles au faciès” is mentioned, 1982–2018 133 Fig. 14.1 All police stops data for England and Wales 315 Fig. 14.2 Police stops under PACE s.1 and related powers requiring reasonable suspicion 317 Fig. 14.3 Police stops under suspicionless search powers (s.44/s.47A TA 2000 and s.60 CJOPA 1994) 318

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List of Tables

Table 2.1 Number of ID checks (including road checks) in Poland in 2011–202029 Table 2.2 The use of “ID checks of citizens” in the chosen Polish media in 2001–2020 41 Table 4.1 Key topics in the media (own edition) 89 Table 8.1 GoPress keyword and results in number of articles (2001–2022)181

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1 Police Stops in Europe: A Citadel Under Siege, But Still Standing Jacques de Maillard, Mike Rowe, and Kristof Verfaillie

For decades the inappropriate use of these powers, both real and perceived, has tarnished the relationship between constables and the communities they serve, and in doing so has brought into question the very legitimacy of the police service. (Her Majesty’s Inspectorate of Constabulary, 2013: 2)

As an issue for public debate, police stops are not new. In the United States, the Kerner Commission in 1968 identified controls as one of the triggers of the urban riots of the 1960s. In England, the riots in Brixton, J. de Maillard (*) University of Versailles Saint-Quentin-en-Yvelines, Cesdip, Guyancourt, France e-mail: [email protected] M. Rowe Management School, University of Liverpool, Liverpool, UK e-mail: [email protected] K. Verfaillie Vrije Universiteit Brussel, Brussels, Belgium e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 J. de Maillard et al. (eds.), The Politicization of Police Stops in Europe, Palgrave’s Critical Policing Studies, https://doi.org/10.1007/978-3-031-35125-9_1

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South London, in 1981 followed the massive use of the ‘sus laws’ to search young Black men during Operation Swamp. In both countries, high-profile incidents bring the debate to the forefront with some regularity. Indeed, we are very familiar with some of the associated names: Rodney King; Eric Garner; Michael Brown; George Floyd. However, starting a COST Action on Police Stops in 2018 appeared, to some of our early continental European participants, a strange project. What was the problem? Officers have powers (depending on the country) to stop citizens, to check their identity and sometimes to search or detain them. They exercise these powers to prevent crime and to identify persons suspected of offences. Indeed, police stops remain largely uncontroversial to this day in Croatia (see Chap. 3) and in other EU states. However, more than four years on and following the death of George Floyd at the hands of the police, the emergence of the Black Lives Matter movement has transformed debates in some Western European countries. Subsequently, the pandemic has also shed light on police practices in ways we have not previously seen. Suddenly, the White middle class might be subject to police attention. This collection, part of the culmination of our work in the COST Action, explores police stops as a public issue in 13 European countries. In each case, authors review the key debates and focusing events that shape the particular trajectory in each country. In this introductory chapter, we will bring together the common themes and controversies that emerge from these chapters. However, this is not to trace some inevitable trajectory towards the regulation of these police powers. Instead, we seek to ask why it is that the use of police stops rises and falls as a political issue at different times and in different countries. In what circumstances and contexts does the issue gain traction such that it leads to reforms? Before embarking on this task, we must first settle (for the purposes of this volume, at least) the question: What is a police stop?

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1.1 What Is a Police Stop? The problems and challenges of taking a comparative approach across so many European case studies have been evident to us since the first meetings at which we discussed the COST Action. We have resolved debates about legal traditions by taking a broad and inclusive approach, encompassing practices that might be legally very different. In many European countries, a stop will be conducted in order to check someone’s identity. Failure to satisfy a police officer may, in some circumstances and at the discretion of the officer, lead to detention for a period of time while proof is established. In the UK, a stop may lead to a search at the side of the road, though anything intrusive will take place in a police station. An interaction that does not lead to a search or identity check (what was called ‘stop and account’ in England and Wales) does not fall under this definition (Pearson and Rowe, 2020). We recognise there are other forms of stop, including at international borders (van der Woude, 2020) or at particular sporting events (Wilson et al., 2022). We do not include stops undertaken while executing a warrant. We also recognise that police practices will often differ from the letter of the law. Indeed, officers’ use of discretion is what makes police stops controversial. For our purposes, in editing this collection, a police stop can be defined as an action taken by a police officer that interrupts the otherwise lawful passage of a citizen. They might be on foot, in a car, on public transport or otherwise in a public space. They are then subject to a search or an identity check. With this broad and encompassing understanding in mind, we will generally refer to police stops. The term stop and search will, on the whole, be reserved for discussions about Scotland, and England and Wales. Formally, in most countries, the law will require that officers have reasons to interrupt citizens in this way. They must either suspect an offence has been committed or is about to be committed. Alternatively, the stop might take place in a location where, because of particular intelligence or concerns, the police have been granted broader powers to scrutinise those present. For police officers, the need for such authority is self-evident. What would be the purpose of wearing a badge and a uniform if one were

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not allowed to stop someone about to commit an offence or fleeing the scene of a crime? In England and Wales, stop and search was intended specifically to avoid the need to arrest someone on suspicion. A quick search allows an officer to confirm or to allay those suspicions with the minimum of inconvenience. Why, then, are police stops controversial? In essence, police stops reveal the crucial tensions at the heart of contemporary policing in divided and unequal societies. They express the competing demands: to produce order and to police with consent; to fight crime and to respect the rights of those at the margins of our societies. Efforts to control migration have led to the disproportionate surveillance of minority communities. The use of controls in the policing of protests and demonstrations, such as Black Lives Matter or Extinction Rebellion, reveals the role of the police in protecting the vested interests of elites. For citizens subject to police stops, the apparently untrammelled right of police officers to temporarily detain them is an unwarranted intrusion, an infringement of their liberties and an act of violence (Ross, 2020). Yet, for the most part, the power has not provoked significant or sustained public debate, let alone policy change. For us, why this is so is of as much interest as those instances when the issue does rise to the forefront. Nevertheless, this collection will tend to focus on those incidents and moments that bring the debate to media and public attention.

1.2 Sources of Controversy Perhaps the first thing we might note is that there is no common pattern to be discerned in reading the chapters collected here. Police stops are a matter of national policy and debate. Only rarely do issues cross borders in ways that impinge upon this national terrain. We might think of examples like the increased security measures following 9/11, or the emergence of a Black Lives Matter movement following the death of George Floyd in 2020. Apart from such transatlantic ripples, police stops rise and fall as a controversial issue at different times and for different reasons from one country to the next. That having been noted, we can nevertheless identify themes which prompt discussion and around which debates focus.

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Focusing Events and Controlling the Streets The first of these focusing events is the extension of police powers in response to some particular concern. In Germany (see Chap. 11), in response to the student protests of the late 1960s and the terrorism of the Red Army Faction, the Federal government introduced the ‘model police act’, including greater powers to stop citizens (cf. infra). In the Netherlands (see Chap. 12), concerns about the potential for violence among visiting football fans at the Euro 2000 competition similarly prompted the extension of police powers. Football was also the original argument for the introduction of s60 in England and Wales (see Chap. 14), allowing ‘suspicionless’ searches in defined areas and for a limited time period. In a similar fashion, fears about migration have enabled the de facto extension of police powers. In each case, discussion was relatively brief. Law and order arguments dominated. However, police organisations will also tend to extend the powers in use. In the Netherlands, again, the police practice of arresting and removing protestors came under scrutiny when 200 demonstrators were arrested and left 20 km from Amsterdam. In effect, the walk back to the city was a punishment which, on subsequent review, was deemed legally unacceptable. Despite this, the practice continues to be used. In Poland (see Chap. 2), the police tactic of detaining protestors (placing them in a ‘cauldron’ or ‘kettle’) often for several hours has been challenged. It has been argued that, in effect, it constitutes an arrest because those in the ‘cauldron’ are not able to leave. The police justification has been that they were merely checking identity papers. In England and Wales, police use of s60, a power intended to control football crowds, became a regular feature of policing in London and other cities (Equality and Human Rights Commission, 2012; Ali and Champion, 2021). This tendency, to use power and authority in ways not envisaged, is more controversial than the initial extension of the powers by legislators (cf. infra).

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External Scrutiny This last example illuminates the important role played by civil society organisations in raising issues and placing them on the national agenda. We might point here to some international patterns, such as the involvement of Amnesty International (in France, The Netherlands, Belgium and Poland) and the Open Society (in France, Spain and England and Wales). However, as important have been national organisations. In Spain (see Chap. 5), the Neighbourhood Brigades of Observation of Human Rights (BVODH) was a grassroots initiative to monitor ethnic profiling in Madrid. In Hungary (see Chap. 4), A Város Mindenkié (The City if for All) drew attention to the use of identity checks to police the homeless and poor. Such campaigning organisations have then often found support from official sources, both international and national. The European Commission against Racism and Intolerance (ECRI) has reported on police practices in Finland and Austria and the Human Rights Committee of the United Nations on practices in Spain. At a national level, the Spanish Ombudsman (Defensor del pueblo) and the Minority Ombudsman and Parliamentary Ombudsman in Finland have all taken up the police practices in using identity checks. Cases have also been brought before the courts in France, Poland and Finland, In France, the highest court, the Cour de Cassation, condemned the French state in 2016 for ‘grievous fault’ for three discriminatory identity checks. In Poland, the District Court for Warsaw-Śródmieście upheld the complaints against the ‘kettling’ of demonstrators, determining that, although the action was legal, it was unjustified and incorrect. In Finland, the National Non-­Discrimination and Equality Tribunal found the police guilty of ethnic profiling and of discrimination against two women in 2018.

Critical Incidents This official attention then also finds an echo in the media. However, for newsworthiness, it is high-profile cases that attract public attention. People who are largely unaware of police practices are suddenly

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confronted with evidence of the brutality and injustice that some experience at their hands. In Norway, the death of Ejike Obiora (a Norwegian citizen of Nigerian origin) in September 2006 led to demonstrations and media coverage. It also prompted the police to commission research into their own practices. In Poland, the death of Igor Stachowiak at the hands of the police in Wroclaw in May 2016 and the subsequent release of camera footage showing the excessive use of force provoked extensive debate about police powers. Though the death occurred in custody, these debates also touched upon the legitimacy of the initial police stop. Less dramatic stops, in terms of their outcomes, also attracted attention. The offence, in police eyes, of ‘driving while black’ led to stops of celebrities: in the Netherlands, a singer, Typhoon, and the Feyenoord goalkeeper, Kenneth Vermeer; in Austria, the rapper, T-Ser; in England, the athletes, Bianca Williams and Ricardo Dos Santos. Police stops have then emerged on the public agenda through different processes. On the one hand, critical incidents, knowledge produced by NGOs and mobilisation of human rights independent bodies have concurred that police stops are a recurrent topic of public controversy. On the other, sportive events or on the contrary demonstrations, terrorism and migration have strengthened the case for police powers in relation to police stops. We now turn to the content of these antagonistic mobilisations, to the different framings and the potential effects on legislation, policies and practices.

1.3 Politicisation and Reforms of Police Stops The question of this section can be stated as follows: Does the fact that stops become an issue in the public debate, or even the subject of politicisation, have an effect on the way in which stops are managed and conducted? In other words, this section aims to understand the links between public controversies, of varying degrees of intensity, and reforms of police stops. We will therefore attempt to reconstruct the power relations, conflicts and negotiations between the multiplicity of political, judicial, non-­ governmental, national, international and local actors who are trying to influence the redefinition of police stops.

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The issue here deserves a threefold clarification. Firstly, we introduce a difference between ‘public issue’ and ‘politicisation’ of stops. In the case of politicisation, stops enter the political arena and are discussed by political actors. The term ‘politicisation’ is used here to describe the way in which political actors take up security, and more specifically policing issues, in conjunction with various types of interlinked actors and spaces (the media, expert forums, governmental and parliamentary forums), within a framework dominated by democratic political competition (competition between parties and elections). Despite variations, to which we shall return, many European countries have entered a phase of ‘hot climate’ (Loader and Sparks, 2010; Murray and Harkin, 2017) with regard to policing issues, as stop and search has become the object of vivid public debates, media scrutiny, expert knowledge production and political controversy. We can then legitimately wonder about the possible effects of these controversies on the policies of stop and search. This leads to the second point concerning the levels and directions of change. On the one hand, addressing the levels of change requires a distinction between legislation (the regulatory texts that frame police powers to stop and search people), policies (police priorities, training and management orientations) and, finally, the practices of police officers. On the other hand, analysing the directions of change necessitates a differentiation between the extension of police powers (by giving more power to the police to decide when and how to trigger a stop) and their reinforced regulation (by means of training, registration or partial prohibition). This clarification is important because the preceding developments suggest that the public debate is first and foremost about a stricter regulation of police stops. As we shall see, the dynamic is much more complex: there are also political and professional mobilisations aiming, on the contrary, to simplify and promote their use by the police. Finally, the comparative analysis presented here is subject to certain biases, insofar as we do not have the same level of information between the different countries: at one end of the scale, England and Wales, where there is both a large amount of administrative data and a very large body of social science work on police stops; at the other end, countries, such as Croatia, where the administrative opacity is much greater and social science research much more deficient.

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We will begin by reporting on the controversies to which identity checks give rise, and then trace the different configurations of reform. One observation runs through our analysis: while the issue of police stops may be a ‘hot topic’, publicly vocal and politically controversial, it is not the subject of radical reforms.

Police Stops Between Denunciation and Defence As we saw in the first part, stops have been the object of recurrent denunciations. But critical actors (non-governmental organisations, political actors generally on the left, rights defence organisations, etc.) are far from being the only ones mobilised. They are facing political actors, mainly conservative, who are inclined to defend the police force, as well as police organisations and unions representing the police. Checks are therefore the subject of different framings: on the one hand, actors who emphasise their excessive use, lack of transparency and discriminatory biases; on the other, groups who defend the rights of police officers and the conduct of checks in the name of the effectiveness of police work in the fight against crime, terrorism or the protection of borders. However, the oppositions sometimes escape this schematism: certain conservative parties, as well as certain police unions, can be critical, which requires the analysis to be more complex and to take into account the specific socio-political contexts. Above all, the relational dynamics are changing, reflecting variations in the positions taken and the balance of power.

 riticism of Police Stops: Lack of Regulation C and Discriminatory Bias Generally speaking, the criticisms levelled at police stops point to the systemic dimension of their perverse effects in their relation with the public. As we have seen, individual incidents (controversial stops, use of violence) are perceived and presented as revealing more general problems. Two aspects can be distinguished. The first stresses the insufficient regulatory framework for stops, and therefore the excessive freedom of use

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available to police officers. The chapters bear witness to this: the powers of control are too intrusive and undermine freedom of movement (England and Wales, Scotland), but also freedom of assembly and protest (Poland, Spain). Checks carried out without any suspicious behaviour, known as suspicionless powers, are particularly targeted: whether it is identity checks on the basis of a prosecutor’s requisition in France, ‘consensual’ search powers in Scotland or searches carried out under Sections 44 or 60 in England and Wales. All of these rules have in common that they potentially allow checks and searches independently of the behaviour of individuals, and are therefore regularly called into question by human rights associations, but also by numerous researchers and independent police monitoring bodies (cf. supra). In the second aspect, checks are denounced for their discriminatory nature: they excessively target certain categories of people, generally defined by their race, and more rarely by their age. The question of age arose in particular in Scotland when it was revealed in 2014 that a significant proportion of so-called consensual checks were carried out on young males under the age of 17. But it is the issue of discrimination against racial minorities (and most often young men) that is the most recurrent: the denunciation of ‘face checks’ traditionally embodies this criticism of the biases and discriminations that lead the police to focus their checks on minority populations and justify accusations of police racism. Three types of population considered as excessively targeted can be distinguished here. Firstly, populations that have been in the country for a long time but are considered socially inferior, poorly resourced and suspected of criminal behaviour, such as the Roma in Hungary or Finland. The second type of population is migrants. In Finland and Germany, for example, human rights groups have criticised the use of immigration laws by police and border guards to over-control migrant populations. In Spain, in a context of economic growth and increased migratory flows, the 2000s saw an increase in the number of checks on migrants in order to detect undocumented foreigners. Finally, the third category, minority populations, descendants of immigration (generally post-colonial): North Africans and sub-Saharan Africans in France, Belgium and the Netherlands, African-Caribbean, African and South Asian in England and Wales. Finally, the lack of transparency of the stops (how many, who,

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when, for what reasons) recurs in both types of criticism, which leads us to the other side of the controversies.

Defence Scripts: Police Stops as Protection In many countries, in France for example, the denial of the discriminatory nature of stops has been based precisely on the absence of available data: the problem would be almost created by the critics, who make problems from exceptional incidents. This brings to the fore what the American sociologist Ronald Weitzer (2017) calls the ‘iconic rotten apple’: if deviations have been observed, they are the result of the excesses of a few police officers, but can in no way represent a general rule. Thus, after the Ben Chika case (a Belgian actor of Tunisian origin stopped and searched in 2015 who claimed this check was not justified and conducted in a disrespectful manner), the Belgian federal minister Jambon defended police officers in the name of this imperative: ‘If police officers have crossed the line, then we must deal with that (...) but if we are looking for a particular profile, one of foreign origin, it is more than logical that we stop and search someone who meets that criteria and acts suspiciously. It is evident that they should be checked and investigated first’ (quoted in Chap. 8). The legal framework is sometimes mobilised to support police practices: discriminatory checks are impossible, since the law prohibits them, stress police officers and politicians in both France and Germany. In Poland, according to police officials, checks are conducted out of necessity within the framework of the law. In this spirit, the logic of defending a profession essential for maintaining order is persistent: the honour and reputation of police officers who are thus stigmatised must be defended. Typically, French Interior Minister Brice Hortefeux claimed in 2009: ‘There are no controls au faciès. Claiming this means blaming all police officers. I refuse to let police officers be stigmatized’ (quoted in Chap. 6). Beyond this simple defence, it may be a question, in a more offensive way, of extending stops beyond the current situation, in the name of the fight against terrorism, border protection or the fight against certain types of crime (or all three at the same time). The delinquent activities linked

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to drug trafficking or the use of knives have thus been recurrent arguments to justify the extensive use of stop and search in England. In 2019, Priti Patel, the home secretary, saw the increase in stop and search as a way of stopping but above all of preventing the commission of offences linked to the use of knives: ‘stop and search is a vital tool in combating the scourge of serious violence and keeping people safe’ (quoted in Chap. 14). In Germany, a few years earlier, cross-border crime was seen as a threat justifying an extension of control powers near borders or on trains (see below). The sensationalist dimension to the cause is evident, as the German police used the image of criminals ‘travelling across Europe on a high-speed train, while criminal investigators would have to follow them on bicycles’ (quoted in Chap. 11). These arguments take place in contexts where police institutions have relatively high levels of diffuse support among the population: surveys measuring trust, satisfaction or good opinion vary in their results, but they generally show relatively high levels of trust (Schaap and Scheepers, 2014). A second element is at play in some countries, notably the Scandinavian countries and France: republican (or colour-blind) ideologies tend to make it impossible to envisage differences between citizens, making the subject of racial discrimination particularly illegitimate in the public debate.

 hanging Relational Dynamics: Denial C and Partial Recognition It is a dynamic assessment of the oppositions between these different frameworks that should be retained: the controversies appear as evolving configurations according to the political balance of powers and the objectives pursued by the actors, as well as exogenous events (crises, scandals, terrorist events). Suvi Keskinen and Markus Himanen refer to these dynamics in Finland as ‘hegemony not without friction’. While the actors of the security and criminalisation coalition have a dominant position in the public and decision-making space at the expense of the non-discrimination and human rights coalition, the latter occasionally manages to win partial

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victories, as in the case of an October 2022 decision of the Supreme Administrative Court condemning the police for discriminatory practices during a check. Some police have shifted their discourse from denial to partial recognition. For example, from 2017 onwards, the Austrian police began to emphasise the need for fair treatment of individuals, underlining the existence of disparities in the way certain populations are subject to checks. Police Scotland, which initially (in 2014) was particularly defensive, even aggressive, about accusations of excessive use of stops, has subsequently, under pressure from external critics (media, inspectorates, The Scottish Police Authority and the Scottish parliament), begun to partially acknowledge the problem of massive use of searches by police officers, and announced a programme of reforms (see below). Similarly, there has been a shift in the discourse of the Norwegian police, particularly in Oslo, on the issue of stops: the police leadership is becoming more willing to accept the possibility of perverse effects of stops and to discuss them with non-governmental organisations. Similar shifts, from silence to partial recognition, can occur among political actors. In France, for example, in the 1980s, the issue of racial profiling was raised only by community groups on the margins, without any real political support. It was during the 2000s that the position changed: on the initiative of the Open Society Justice Initiative, advocacy work was carried out bringing together numerous associations (Platform to End Contrôles au Faciès and Stop le contrôle au faciès). Within this framework, knowledge on the disparities of police ID checks is produced, which contributes to changing the framing of the issue of ID checks, with the ‘scientific’ proof of racial disparities in police ID checks on the basis of the results of a systematic observation study directed by two recognised French scientists. The position of politicians automatically defending controls became a minority (including within the centre-right government between 2007 and 2012), and the Socialist candidate in the 2012 presidential campaign, who was finally elected, even announced that he would put in place a measure to trace police ID checks. Since then, as Magda Boutros shows, ID checks have regularly returned to the political agenda. President Macron himself said in November 2020 that it is abnormal that non-whites are more frequently subject to controls.

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Perhaps the most dramatic shift in the tone of political discourse occurred in England in the early 2010s. While the number of stops and searches had increased almost continuously since the 1990s, reaching a peak in 2008–2009, the new Conservative-Liberal Democrat coalition government adopted a libertarian orientation, proposing to ‘roll back Labour’s control state’ (David Cameron, the then prime minister, quoted in Chap. 14), denouncing Labour for creating ‘the worst of all words: intrusive, ineffective and enormously expensive’. The Conservative party has thus been playing on opposite sides of the fence, breaking away from the law and order political consensus of the 1990s which had led to a continuous increase in stop and search (and more broadly to a tightening of criminal policy). As home secretary, Theresa May became a vocal critic of the excessive use of stop and search by the police. Estelle Marks and Ben Bowling offer an original interpretation of this policy shift (which will not last, as we shall see below): on the one hand, by stigmatising the excessive number of stops, the Conservative party supports its reforms aimed at reducing police budgets and staffing levels, with police stops being emblematic of these useless tasks generating bureaucracy and wasted time; on the other hand, at a time of particularly strict immigration policies, this reduction in stops aims to differentiate between ‘the “others within” (ethnic minorities unfairly subject to police stop-and-­ search) and the “others without” (irregular migrants—subjected to the aggressive policing of the “hostile environment”)’ (Chap. 14). Political exchanges between NGOs and political groups, the production of expert knowledge on the effects of stops and media pressure help to explain these changes in political strategy and shifts in police discourse. However, other more exogenous phenomena (judicial decisions, scandals, or changes in the socio-political context) define the framework in which these strategies are recomposed. In Scotland, for example, the creation of a national police force in 2013 has created a singular context that drew attention to this new institution. In England, judicial decisions helped to frame this redefinition of political positions: in 2010, a decision by the European Court of Human Rights condemned the United Kingdom for checks carried out under S44 of the Terrorism Act that violated the complainants’ right to privacy (Gillan and Quinton vs UK). In addition, the riots in the summer of 2011 made clear the deteriorating

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relations between police forces and ethnic minorities that are fuelled, in large part, by stops. Another element that may have also implied changes in policy positions in many European countries was the aftermath of the death of George Floyd, killed by a police officer in Minneapolis in May 2020, which led to demonstrations against racism and police violence in almost all European countries. Demonstrations against police violence, scandals linked to certain police developments, riots: taken in isolation, these different events do not have mechanical effects on the politicisation of police stops, but their combination, which varies according to national contexts, may have led to a transformation of political games and controversies, opening up possibilities for transforming police legislation, policies and practices.

 olicy Changes: Inertia, Incrementalism, Moderate P Changes and Extension of Powers Despite these recurrent criticisms of excessive use of stops, policy changes are much more moderate and move in very contradictory directions: they also reflect an extension of the powers of police officers and other professionals in charge of stops. Here we will identify four different configurations that reflect levels and directions of change: inertia; incremental changes; moderate limitation of police stops; and extension of powers.

Inertia In this situation, the intense mobilisation of a coalition in favour of greater control of police stops may be the subject of measures proposed by parties and governments, but does not translate into change, either in terms of legislation, policies or police practices. Police actors play the role of veto actors, that is, collective actors who have the capacity to block a change in public policy. It is undoubtedly in France that this discrepancy between strong pressure and the absence of change in public policy was most clearly expressed. The coalition against discriminatory police stops conducted advocacy

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work with some success. After the 2012 presidential elections (see above), the government announced the introduction of a police stop form (récépissé). But the mobilisation of police unions, relayed by the Minister of the Interior Manuel Valls, was to have the better of this reform, which was quickly abandoned. The provision of body-worn cameras, the generalisation of an identification number for every police officer and the adoption of a code of ethics were the indirect counterparts of this renunciation. Also in 2016, as noted above, the Cour de Cassation (the highest French court) condemned the state for gross negligence for abusive ID checks on young minority men, without this decision leading to any changes in police policies. In October 2020, President Macron’s declarations against abusive controls were followed by a backlash by several police unions denouncing presidential remarks that questioned the work of the police. Since then, no policy has been implemented. In other words, in this framework, the transactions between political and police actors lead to a blockage: if political actors, including those with the highest responsibilities within the executive, express the will to better regulate police policies with regard to stops, police organisations (police managements and unions) manage to avoid reforms, either explicitly (by campaigning against them) or more discreetly (by not implementing government announcements).

Incremental Changes In this second configuration, mobilisations lead to incremental changes in police legislation, policies and practices. Existing legislation is changed minimally, by successive touches. The changes are essentially experimental (rather than lasting), local (rather than national) and optional (rather than mandatory). There are three, often interrelated, components: training of officials; recording of stops; and the limitation of certain types of stops. The first and most common component is the introduction of awareness-raising schemes by police forces. Such schemes have been initiated in Austria, but also in Hungary around the issue of policing Roma. In this latter country, after two cases where abusive policing of Roma had been noted

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by the Hungarian Helsinki Committee, an agreement was reached between the police services and the Helsinki Committee (and validated by the Equal Treatment Authority) providing, in exchange for the discontinuation of the proceedings, to ‘provide more detailed education and training to police officers on the legislation and to organise awareness-­ raising training for the police officers concerned’. In Norway, following the Obiora case (referred to above), training was provided to police officers to improve relations with minority populations, to ‘improve dialogue, communication and procedural justice skills’. In the Netherlands and Belgium, continuous training programmes for ‘professional policing’ have been set up, breaking down control activities into several sequences (reasons for initiating a control, how it is carried out, debriefing) aimed at increasing reflexivity and professionalism in the conduct of stops. The second component consists of experimenting with recording devices for stops (sometimes with the delivery of a receipt to the public) with the aim of making officers aware of the number, the targets and the results of the stops. These experiments are accompanied by training schemes based on a raising awareness approach (see below). There are two experiments of this type. In Scotland, over the period 2014–2015, Police Scotland began by responding in an incremental way in a March 2015 report, with recommendations relating firstly to better communication with the public (and in particular young people), and a better system for monitoring and recording stops. Above all, a few months earlier, Police Scotland had launched an experiment (“The Fife Pilot”), aimed at a more reasoned use of stops and a more reliable recording of them, the limits of which were shown by the independent evaluation.1 In Spain, several projects (STEPSS Project, continued by the PIPE programme), funded by the Open Society, have sought to reduce ethnic profiling by systematically collecting stop and search data and by encouraging greater reflexivity on the part of officers, but the rather positive results have not aroused the interest of the national police. Finally, the third component consists of limiting certain types of stops, which are deemed to be both ineffective and insufficiently respectful of  This experiment proved to be largely disappointing, as the number of checks tended to increase and police officers forgot the online training they had received (O’Neill et al., 2015). 1

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freedoms. Following the decision of the European Court of Human Rights, the English government amended S44 (now S47A) of the Terrorism Act in 2011, raising the threshold for the use of these powers. In Spain, in May 2012, the national directorate of the Cuerpo Nacional de Policia produced a circular prohibiting the use of quotas for the control of migrants, as well as mass police interventions on the basis of ethnic criteria, which has certainly contributed to a decrease in identity checks conducted in this context. On the issue of drug related controls, in 2021, the Director of Public Prosecution in Norway issued a circular instruction stating that it is not permitted to search a suspected drug user (for instance to search for possession) as investigations into drug sales must be aimed at those suspected of sales. Such changes may also concern checks of migrants suspected of being illegally present in the territory. Training, registration, limitation of certain types of stops: these reforms, however, only concern a part of the workforce and/or powers to stop and search, and mainly act on soft skills. In total, they constitute minor changes in legislation, policies and practices.

Moderate Changes In this third situation, the changes brought about are more significant, often because political pressure and/or police impetus have been stronger. Only Scotland, on the one hand, and England and Wales, on the other, offer illustrations of this: in both jurisdictions, stop and search have been politicised and the changes made have been significant. In Scotland, the incremental changes (see above) initially envisaged by Police Scotland were not enough to calm the external pressure generated by the media but also by the control bodies (The Scottish Police Authority, Her Majesty’s Inspectorate of Constabulary in Scotland). From September 2015, Police Scotland agreed to end non-statutory searches and to implement a Code of Practice for stop and search. Between 2016 and 2018, a specialised unit, the National Stop Search Unit (NSSU), put in place a training package, consulted with external partners including academic researchers, initiated new procedures for stop and search, changed the internal governance structure to follow up on stop and search and

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implemented the Code of Practice (which was enshrined in law in January 2017). In the space of a few years, as Megan O’Neill shows, both the procedures and the objectives and governance structure related to stops have been transformed. The overall rate of stop and search in Scotland is now about a tenth of what is was prior to 2014. In England, between the 2008–2009 and 2018–2019 tax years, the number of stop and search registrations has been cut by a factor of six (from around 1,500,000 to less than 300,000). Suspicionless powers have been legally limited (see our previous comments on the change from S44 to S47A) and, more importantly, their use has decreased considerably, to the point of almost disappearing between 2013 and 2018. In a context where the home secretary Theresa May made a strong statement on the need to reduce stop and search, several programmes were adopted. In 2014, a package of reforms initiated by the Home Office included a revision of the codes governing reasonable suspicion, a removal of individual officer targets for stop and search, a review of national police training on stop and search and education about unconscious racial bias. In both cases, pressure from civil society (particularly strong in England), political commitment from the government and changes in police policies have contributed to significant changes in the framework and practices of stop and search. In both jurisdictions, these reforms have been part of a reinvention of the tradition of ‘consensual policing’ specific to the police in the British Isles, combined with changes linked to the new public management.

Extension of Police Powers In an often more discreet way, we find, on the contrary, political dynamics aiming at extending controls in two complementary ways: as law in the books, by giving police more powers to conduct controls; and as law in action, by encouraging, or even requiring, police officers to massively deploy controls in territories considered as priorities or at specific times. It is known that regulations may inject some flexibility and autonomy into police work, giving police officers some suspicionless powers (de Maillard, 2022, pp. 87–89). These are the powers that have been extended

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in France, Germany, England and the Netherlands. In Germany, the Model Police Act of 1977, revised in 1986, extends the powers of police officers in areas considered dangerous. In the Netherlands, since 2002, a preventive search measure has been introduced: the mayor has the potential to designate an area as a so-called safety-risk-area (Veiligheidsrisicogebied) which gives the power (with the authorisation of the prosecutor) to the police to search every person in this area for the possession of weapons. This measure is in line with other regulations (administrative restraint, identification checks) that increase the powers of the Dutch police. Checks have also been extended around border areas. In Germany, for example, the police in the 1990s were granted an extension of their powers to carry out checks, in the absence of suspicious behaviour, up to 30 km from the border or inside trains. At a second level, we can see an extension of police practices, often at the request of political actors. In terms of everyday crime, we know that in many American cities (see Skogan, 2023), mass stop and frisk have been used as a preventive means of deterring potential criminals. They have been used in a similar way in many European countries, particularly in relation to drug trafficking or to combat violent crime. The issue of knife crime in England provides a particularly telling illustration, with home secretary Priti Patel claiming the necessity of stop and search (see above), leading to an explosion in checks carried out on the basis of suspicionless powers (from 622 searches in 2016/17 to 18,043 in 2019/20). In countries with an authoritarian past, police powers of control may have been used around demonstrations (in Poland, Hungary or Spain). The controls serve to deter and delay demonstrators, and may even lead to arrests or the distribution of fines in a particularly tense political context, as was the case in Poland or Spain in the mid-2010s. The police are then the armed wing of the state to limit the scale of the protest. But it is in relation to the problem of borders that these controls have undoubtedly spread the most. This issue has been particularly strong in the Scandinavian countries (Norway and Finland), where the hybrid police controls between punishment and border controls and between immigration control and crime control have been particularly strong, in the name of an ideology in which the benefits of the welfare state are very much tied to the nationality and whiteness of citizens (Keskinen et al., 2019).

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Similar logics can be found in Germany and Austria, but also in Spain in the 2000s. Finally, it should be noted that these four configurations do not necessarily correspond to national situations. Firstly, because national contexts can shift from times when stops are encouraged to times when they are outlawed. England and Wales offer the most obvious illustration of this insofar as governments led by the Conservative party were able to make stop and search a push-back in the early 1990s, before adopting a few years later a strictly opposite position. Secondly, because national configurations are riddled with contradictions, and ambiguous agreements are frequent. The laws that regulate police stops are in fact unstable compromises between contradictory forces. For example, the laws adopted in Finland in 2015 and in Spain in the same year contain opposing orientations. In Finland, ‘a compromise between security-oriented rationality and thinking based on non-discrimination norms, resulted in increased legal regulation of internal immigration policing, but also enhanced the powers of the police and border guards to conduct immigration controls’ (Chap. 7). In Spain, the adoption of the Protection of Public Security Act in 2015 introduced some safeguards (a non-discrimination clause in identification checks), while at the same time it established a new repertoire of administrative infractions (many of them describing common practices during anti-austerity protests).

1.4 Conclusion The use of police stops suggests a crucial question about what it means to police in Western countries: on the one hand, a police force that seeks to be effective in the fight against crime and to assert its capacity to produce order, and on the other, police officers whose action must be based on a form of public consent and respect for individual freedoms. The chapters in this book document to a large extent that the issues related to stops polarise between groups of actors with different framings of what police action should be in a democracy. On the one hand, criticisms of the extension of state security control or the concentration of controls on certain minority populations have gained greater public

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visibility. While the issue is not new in Western European democracies, it is worth noting that it has become a political issue in countries with an authoritarian legacy, such as Hungary, Spain or Poland, particularly around collective protests. In the Scandinavian countries (Finland and Norway in this book), which are known for their high level of public confidence in their police forces, this issue has also received a lot of media, political and institutional attention, particularly with regard to the discrimination suffered by people of immigrant descent, but also by people suspected of being illegal migrants. The police are no exception to the discussions in unequal and multicultural societies, where non-­ governmental organisations defending human rights and independent monitoring bodies at both national and international levels have produced autonomous knowledge about police action, and advocated for closer monitoring, training policies and greater awareness of bias. Judicial strategies are key components of this challenge to police strategies and practices: human rights organisations use the courts, often successfully, to challenge discriminatory policing practices. On the other hand, the defence of police stops as a crucial weapon to protect the political (against collective protests), national (the protection of border traffic) and social (checks as a tool to control crime) orders has remained conspicuous. The police remain an institution with a strong social and political legitimacy. In many countries, the ability of police actors to protect themselves from forms of criticism of their action is particularly significant: police unions and organisations manage to limit the scope of reforms, or even, as in France, to prevent them. The police remain institutions that are difficult to reform: mobilisation of the unions, mistrust of idealistic proposals put forward by civilians, internal capacity to extinguish reforms, difficulty of appropriation of new orientations by the officers, etc. Let us add that the diffuse support they have in public opinion, relayed by political actors often inclined to support the police as the guarantor of social order, contributes to reducing the scope of the reforms. These elements lead us to discuss the conclusions of Murray and Harkin (2017). They convincingly show that, in Scotland, it was a ‘hot’ climate that effectively challenged an ‘unregulated and unfettered practice’ (2017, p.  887), although the previous ‘cold’ climate kept

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interrogation of police practices to a minimum. In the chapters that make up this book, police practices of control can indeed be seen to have become ‘hot’ issues. The rights to protest collectively, the protection of migrants or the fairness of proactive policing have become matters of struggle for civil liberties organisations. However, reforms are chaotic and vary according to national contexts. Police organisations continue to have the capacity to limit or even prevent reforms. The citadel is under siege, but it remains standing.

References Ali, A., & Champion, N. (2021). More harm than good: A super-complaint on the harms caused by ‘suspicion-less’ stop and searches and inadequate scrutiny of stop and search powers. Criminal Justice Alliance. de Maillard, J. (2022). Comparative policing. Routledge. Equality and Human Rights Commission. (2012). Race disproportionality in stops and searches under Section 60 of the Criminal Justice and Public Order Act 1994. EHRC. Her Majesty’s Inspectorate of Constabulary. (2013). Stop and search powers: Are the police using them effectively and fairly?, Report, HMIC. Keskinen, S., Skaptadóttir, U., & Toivanen, M. (Eds.). (2019). Undoing homogeneity in the Nordic region. Migration, difference, and the politics of solidarity. Routledge. Loader, I., & Sparks, R. (2010). Public criminology? Routledge. Murray, K., & Harkin, D. (2017). Policing in cool and hot climates: Legitimacy, power and the rise and fall of mass stop and search in Scotland. British Journal of Criminology, 57(4), 885–905. O’Neill, M., Aston, L., & Krause, A. (2015). The fife division (police Scotland) stop and search pilot evaluation findings and recommendations. Dundee: The Scottish Institute for Policing Research. Available at: https://www.sipr. ac.uk/wp-­content/uploads/2021/10/The-­Fife-­Division-­Police-­Scotland-­ Stop-­and-­Search-­Pilot-­Evaluation-­Findings-­and-­Recommendations.pdf. Pearson, G., & Rowe, M. (2020). Police street powers and criminal justice: Regulation and discretion in a time of change. Hart. Ross, J. (2020). A feminist critique of police stops. Cambridge University Press.

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Schaap, D., & Scheepers, P. (2014). Comparing citizens’ trust in the police across European countries: An assessment of cross-country measurement equivalence. International Criminal Justice Review, 24(1), 82–98. https://doi. org/10.1177/1057567714524055 Skogan, W. (2023). Stop & frisk and the politics of crime in Chicago. Oxford University Press. Weitzer, R. (2017). Theorizing racial discord over policing before and after Ferguson. Justice Quarterly, 34(7), 1129–1153. Wilson, C., Miller, J., & Brick, C. (2022). Running an ostler? Exploring the use of stop and search tactics at Scottish football matches. Soccer and Society, 23(1), 3–20. van der Woude, M.  A. H. (2020). Ethnicity based immigration checks. Crimmigration and the how of immigration and border control. In G. L. Gatta, V. Mitsilegas, & S. Zirulia (Eds.), Controlling immigration through criminal law. European and comparative perspectives on “Crimmigration” (pp. 141–164). Hart Publishing.

Part I Police Stops, Protest and the Democratisation Process

2 The Rise of Police Stops as a Public Issue in Twenty-First Century Poland Dorota Czerwińska

2.1 Introduction For a long time, Police stops have not been the subject of either academic or public discussion in Poland. Before 1989, there was not much debate about Police powers to stop and search citizens. What is more striking is that, even after democratic transformation, there was no research or media interest in the issue of Police stops. However, at the turn of second and third decade of the twenty-first century, a keen observer could easily notice and watch the emergence of Police stops as a public or even political issue in Poland. The thesis that is argued in this chapter could be summarised as follows. In the last five years, Police stops became a public issue in Poland because of three watershed events which attracted media and public attention. These events were the death of Igor Stachowiak in May 2017 in

D. Czerwińska (*) University of Wrocław, Wrocław, Poland e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 J. de Maillard et al. (eds.), The Politicization of Police Stops in Europe, Palgrave’s Critical Policing Studies, https://doi.org/10.1007/978-3-031-35125-9_2

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the course of an arrest following a stop in the main square of Wroclaw; a series of lengthy Police stops and ID checks of anti-government protesters in 2016, 2017 and 2018; and a series of lengthy Police stops and ID checks of protesters on the Woman’s Strike in October 2020 and January 2021. Especially in the last case, the scope of Police powers to stop and conduct an ID check of an individual has been discussed and contested in the national media. Such discussion—thanks to the involvement of important participants in the debate, mainly the Ombudsman and NGOs such as the Helsinki Foundation of Human Rights or Amnesty International—may (or may not) lead to changes in the legislative framework or, at least, the practice of Police stops.

2.2 Lack of Academic Interest and Public Discussion Regarding Police Stops in Poland Until recently, Police stops have not been a significant subject of scientific research in Poland. If any academic literature was available at all, it was of a legal nature and did not cover either the experiences of individuals who were stopped or searched, or political or sociological studies on Police stops and searches. No publications addressed the issue before the democratic transition of the country in 1989. After that, the available literature consists mostly of general studies on legitimacy and policing, especially directed towards specific social groups, which only marginally analyse the issue of Police stops (Czapska et al., 2015; Dobrowolska-Opała, 2018; Guzik-Makaruk, 2011; Pływaczewski, 2017; Pływaczewski & Kudrelek, 2010; Pływaczewski & Wiśniewski, 2012). Only a few fragmentary studies (articles) relating explicitly to Police stops have been published, and they are of a legal nature (Cora, 2008; Płocki, 2019; Szumiło-Kulczycka, 2012; Zagórski, 2004). However, interest in the subject has increased over the last few years (Karaźniewicz, 2022; Taracha, 2020; Czerwińska, Jasiński, Kremens, 2023). There are also no publicly available statistics on the general number of Police stops, but they may be acquired by individuals on the basis of the Freedom of Information Act. Data received this way from the National

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Table 2.1  Number of ID checks (including road checks) in Poland in 2011–2020 Year

Number of ID checks

2011 2012 2013 2014 2015

5,046,650 4,907,695 6,851,084 8,789,312 9,187,904

2016 2017 2018 2019 2020

9,231,329 9,800,924 10,289,055 12,703,841 11,979,667

Police Headquarters  indicates that the Police powers to conduct ID checks has been used more and more frequently (see Table 2.1 above). This constitutes an important gap in our understanding, which has only recently begun to be filled by grey literature, mainly at the initiative of the Ombudsman and NGOs. As to reasons for the existence of such a gap, the explanation which almost imposes oneself is a historical one. A post-socialist society has been long used to broad Police powers and is thus less likely to question them (Grzegorczyk & Tylman, 2014, 24–28). What is more, for decades, public surveys have shown high trust rates in the Police which is, in fact, the most commonly trusted public institution, while courts and prosecutors are considered among the least trusted ones and Polish society has low trust in public institutions in general (Feliksiak, 2019). The high trust towards the Police might be explained by the fact that it is the only one of the aforementioned institutions that people actually get in touch with on a daily basis, and the opinions on both the courts and the Police get better among people who actually have had personal experiences with these institutions (Boguszewski, 2013, Fil, 2004). Another feature that could have contributed to the existing lack of public interest in Police stops in Poland might be the fact that Polish society has been almost ethnically homogenous until recently (Główny Urząd Statystyczny, 2015, 29; Główny Urząd Statystyczny, 2022, 34–39; Ombudsman, 2018a). In contrast, overuse of Police powers on ethnic minorities was an important trigger for debates on this issue in some European countries (although there are also examples of lively debates not revolving around ethnic minorities). Lack of academic and public interest in Police stops may also derive from excessive and lengthy use of pre-trial detention in Poland and the

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overly punitive nature of the Polish criminal justice system. The problem of overusing pre-trial detention in Poland has been described by the European Court of Human Rights as systemic and criticised on many occasions (ECtHR’s judgments in cases Burża  v. Poland, Zagalski  v. Poland, Zieliński  v. Poland, Klepczyński et  al., 2019). The number of detainees in pre-trial detention has more than doubled since 2016 (Pilitowski, 2019). At the same time, the increasingly punitive character of the criminal justice system is marked not only by frequent amendments of the Criminal Code, aimed at toughening penal policy, but is also reflected in high total incarceration rates (Aebi and Tiago, Space I report, 2020). In light of these facts, it seems less surprising that brief stop for the purpose of checking identity or even conducting a frisk or search is usually not perceived by scholars as a deprivation of liberty at all (Cora, 2008).

2.3 Legal History and Framework of Police Stop and Search Practices in Poland Since 1955, the powers of the Citizen’s Militia (which was the national police organisation in Poland from 1944 until 1990) to conduct stops and ID checks were regulated by way of decree which allowed the Militia to establish identity ‘in justified cases’, as well as to stop people who violate public order. The decree was repealed by the Act of 14 July 1983 on the Ministry of Internal Affairs and the activity of subordinated authorities, which broadened the powers to conduct ID checks.1 The Act abrogated the condition of a ‘justified case’ (and thus simply allowed the Citizens’ Militia to conduct ID check without a specific purpose) and expressly provided for the power to conduct personal searches and luggage checks in cases where there was  a suspicion of a crime or an act against public order or state security. Apart from the Citizens’ Militia, the  The Act was a part of a broader reform of the structure of the Interior Ministry in Poland, introduced almost exactly at the moment of the revocation of martial law, which had been in force since 13 December 1981 until 22 July 1983 and introduced separate, restrictive policing rules, the analysis of which would exceed the scope of this chapter. 1

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ORMO (Volunteer Reserve of the Citizens’ Militia) also had the right to conduct ID checks of persons suspected of committing a crime or a petty offense or of having witnessed such events. In the course of democratic transition, the new Police Act of 6 April 1990 was adopted. Article 15 of the Act lists all the basic powers of the Police. Article 15 (1) (1) of the Act details that Police officers are entitled to conduct ID checks of people ‘in order to establish their identity’; the provision has never been amended. For more than 30 years, the power to conduct ID checks has thus been permanently cast in very broad terms, comparable to legal solutions from before the democratic transition. When interpreting the aforementioned provision literally, no grounds for such activity have to be fulfilled.2 What is more, an ID check is not perceived by scholars as either a stop or arrest in Poland—it is considered as a separate activity of an administrative nature (Karaźniewicz, 2021; Opaliński et al., 2020). However, it, in fact, involves a short deprivation of liberty for the time when identity is being checked. What has to be underlined is that there is no distinction between stop and arrest in Polish law—the term which is used in both cases is zatrzymanie. Thus, obviously, zatrzymanie for the purposes of criminal proceedings, which may last up to 48  hours, attracts more research and media attention as it is more oppressive than a short stop in the street. The Police power to conduct stops, arrests, searches and frisks has been more and more precisely limited by statute in the course of the last 30 years. Initially, Article 15 of the Police Act simply allowed personal searches and luggage inspections ‘in case of a reasonable suspicion that a crime or petty offense was committed’, while a person could be stopped and arrested—apart from grounds specified in the Code of Criminal Proceedings—if he or she clearly poses a danger to human life or health or to property, if other means have been proven ineffective or pointless. It was also specified that all the acts of the Police shall be conducted in the least intrusive manner (Article 15 section 6). The milestone in the legal limitation of Police powers to stop and search was the Polish Constitutional Tribunal’s ruling of 14 December  Nevertheless, as will be discussed below, the Police power to conduct an ID check may also be understood as limited by the duty to only act within the boundaries of statutory tasks of the Police. 2

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2017 in case K 17/14. The proceedings were initiated by the Ombudsman’s motion. The Tribunal declared relevant provisions of the Police Act unconstitutional insofar as they did not specify the terms and boundaries of a preventive personal search and did not guarantee the right to judicial review of such actions. Necessary statutory changes entered into force on 25 December 2018. New provisions set forth conditions for the search of personal belongings or luggage and introduced a new institution—preventive frisk (which is mostly related to the security of mass events and of people held in Police custody). Currently there are thus three types of searches regulated in the Police Act which are equivalent to the common understanding of stop and search or frisk: 1. personal search (kontrola osobista): search of a person and personal belongings which may involve stripping and body cavity search, if necessary; it is allowed if there is a reasonable suspicion that a criminal offence has been committed or in order to find weapons, illegal items or evidence of crime; 2. inspection of luggage and cargo in harbours, stations or on public transport (land, air and sea) which is permissible when there is reasonable suspicion that a criminal offence has been committed or in order to find weapons, illegal items or evidence; 3. preventive frisk (manually, by technical means of finding dangerous or prohibited objects, biochemically or with the use of a police dog) to prevent terrorism at designated places and events as well as public transport or to seize items that might threaten the health of a person held in custody. Among these, only a personal search and luggage inspection are subject to judicial control which may be initiated by filing a complaint (Article 15d (11) and Article 15e (11) of the Police Act). The preventive frisk may only be appealed to the prosecutor (Article 15g of the Police Act). Even after recent amendments, the current state of legislation can hardly be assessed as sufficient. The Police powers are still very broad. Article 15 (1) (1) of the Police Act still simply states that Police have the power to conduct an ID check to verify a person’s identity. The practice shows that ID checks sometimes turn into the deprivation of liberty

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lasting for hours (which will be further discussed below). What is more, although Police stops and searches are registered, there are no publicly available statistics on the issue. A full written record (minutes) of such a procedure is made only when the stop and search was successful (i.e. illegal objects or evidence of crime were actually found) or the person searched so demanded.

2.4 The Reasons for Growing Public Interest in Police Stops As indicated above, for many years Police stops were absent from both academic and public discourse. During the last 5 years, however, Police stops have started to attract media and public—but, as yet, little academic—attention. This discussion was induced by a series of widely commented upon events which will be reviewed below.

Igor Stachowiak’s Death The first threshold event, which brought the problem of Police stops to public attention, was the stop and arrest of Igor Stachowiak. He was a Polish citizen who was wandering around the Main Square in Wroclaw early in the morning of 15 May 2016. He was not aggressive in any way but attracted the attention of the Police because he looked like another individual who was wanted by the Police at that time. The Police decided to conduct an ID check and to search his personal belongings. This activity went on peacefully for a few minutes but suddenly turned into a quarrel and resulted in the arrest of Igor Stachowiak. The Police officers used physical force and handcuffed him. There were twocitizens passing by who objected to the actions towards Igor Stachowiak and recorded the intervention on their smartphones. These citizens were later arrested themselves and one of them was charged with battery against Police officers, but eventually acquitted (TVN24, 2021). Igor Stachowiak was transferred to the Wrocław Old Town Police station where the policemen used a taser on him while he was handcuffed, which is expressly

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forbidden by the law. Igor Stachowiak died at the Police station that day. An investigation into his death did not make substantial progress until May 2017, when a private television station broadcast TV reportage involving leaked footage from the videorecorders built into the taser (Bojanowski, 2017). The images of Police violence shocked society and led to a strong reaction from the Ombudsman (2017). The investigation into the death of Igor Stachowiak changed course, and four Police officers were charged with abusing their power—but not with murder or manslaughter because the causal link was not proven—and sentenced to imprisonment (TVN24, 2020). The Igor Stachowiak case has continued to attract vast media and public attention. Obviously, Igor Stachowiak’s case mostly revolves around the issue of Police violence during the arrest. Public attention was focused on the death in Police custody, not the Police stop itself. Nevertheless, the discussion to some extent concerned the legality of his stop and search in general. It has been underlined by the media that Igor Stachowiak was just a regular citizen wandering around the streets early in the morning and looking similar to an individual whom he did not know at all but who had supposedly committed crimes. What is more, two citizens who recorded Igor Stachowiak’s stop with their smartphones were arrested as well. That also raised controversies about the legality of recording Police interventions. One of the aftermaths of the event was the introduction of cameras on police uniforms in 2018 by the Act on Data Protection in Relation to Prevention and Fighting Crime. The videorecording of all procedural activities with persons in custody was also demanded by the Helsinki Foundation for Human Rights in its 2018 report Inside Police Custody (Lloyd-Cape, 2018; Grabowska-Moroz, 2018).

Anti-Governmental Demonstrations in 2017 The second threshold event which attracted public attention to the discussed issue was a series of Police stops in connection with anti-­government demonstrations, mostly in 2017. Between late 2015 and 2018, Poland frequently faced severe protests of a political nature, mainly attended by the opponents of the ruling Law

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and Justice party. One of the particularly active movements was called Obywatele RP (Citizens of the Republic of Poland). Its members frequently organised protests consisting of sitting on the pavement in Warsaw Old Town. On several occasions, Police intervened and literally carried the demonstrators away or blocked their way out of the Old Town, keeping them surrounded by officers in a so-called Police ‘cauldron’. During such interventions, the protesters—sometimes supported by their lawyers—claimed that such Police conduct is in fact an arrest which should trigger additional procedural guarantees. The Police refused to acknowledge that and claimed, instead, that their actions only constituted ID checks. However, those ID checks frequently lasted many minutes or even several hours, during which the protesters were not allowed to leave while the Police explicitly claimed they were not arrested. According to the media similar tactics were used on 10 May, 10 June, 10 and 24 July 2017. These and other events led Amnesty International to the conclusion, given in a 2018 report, that participants in anti-government demonstrations in Poland were at risk of being stopped, arrested or charged with a crime, as well as of the use of force by the policemen (Amnesty International, 2018). A similar conclusion was drawn by the Ombudsman in their 2018 report (Ombudsman, 2018b). On 10 June 2017, a landmark stop of a participant in an anti-­ government protest, namely Władysław Frasyniuk, took place. Władysław Frasyniuk is a public figure in Poland and a famous oppositionist during socialism. He sat on the pavement in Warsaw Old Town alongside members of the Obywatele RP movement in a peaceful protest. The Police physically carried away some protesters, including Władysław Frasyniuk. Two policemen then tried to conduct an ID check of Władysław Frasyniuk. He did not state his real name but instead claimed his name was Jan Józef Grzyb.3 At the same time, the crowd was shouting his real name. The course of this ID check was recorded by a third party, posted on YouTube and went viral. The Police later decided to charge Frasyniuk  Jan Józef Grzyb was Frasyniuk’s conspiracy name during his membership in anti-socialist opposition in Poland in the 1980s. Using conspiracy names was common among members of anti-­socialist movements back then. 3

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with a petty offence of giving a false identity to state authorities and with an offence of violating the Police officers’ bodily integrity.4 He was then acquitted by the court for the petty offence. The court claimed that Władysław Frasyniuk had no real intention of confusing state authorities and his behaviour could not be analysed abstracted from its context, which had been a peaceful demonstration (Klauziński & Jałoszewski, 2018; District Court of Warsaw, 2018). According to the court, Police stops of protesters might discourage citizens from manifesting their opinions and create an impression of being endangered with negative consequences of enforcing this constitutional right. The court noted that such attitudes of state authorities had frequently been criticised by the ECtHR. The proceedings against Władysław Frasyniuk concerning the battery against Police officers were discontinued by the appellate court due to the negligible social harmfulness of the act (Jabłoński, 2021).5 This event represents a milestone for the public debate concerning Police stops in Poland for several reasons. First, it was very attractive for the media, as it involved a public figure and became a viral YouTube movie at once. It thus initiated immediate comments regarding the course of the event. Second—in contrast with Igor Stachowiak’s death which occurred during arrest—it was clearly and solely connected with an ID check. Thus, it brought to public attention the issue of Police powers to stop and conduct ID checks as separate from the power to arrest. That was particularly important in light of the already mentioned traditional attitude towards Police stops in Poland, that is not to perceive them as a form of deprivation of liberty. However, when the power to conduct an ID check was directed towards a public figure—and ultimately have led to the initiation of petty offence and criminal proceedings against such a person—it suddenly became controversial.

 Polish Criminal Code provides for separate crimes of battery and physical assault against a public official (the first being less severely punished). See Articles 222 and 223 of the Criminal Code; Jasiński and Kremens (2019, 121–122). 5  According to Article1 § 2 of the Polish Criminal Code only an act that presents social harm that is not negligible may be classified as an offence. Discontinuation of proceedings in case of negligible social harmfulness of the act is thus based on the conclusion that the act does not constitute a crime, not on the lack of public interest in prosecution. See Jasiński and Kremens (2019, 78). 4

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Other controversial Police actions that brought Police stops to public attention were directed against Greenpeace activists. In 2019, the Polityka weekly published an article entitled ‘Aktywiści, terroryści’, that is, ‘Activists, terrorists’ (Siedlecka, 2019). It described Police surveillance of Greenpeace activists during COP24 (including stopping their cars for routine controls or conducting luggage inspections at the train station). On 14 December 2018, Greenpeace planned a balloon flight. The pilot was licensed and the flight had been registered. Nevertheless, when the activists were heading towards the airport and stopped at a gas station, the Police appeared and conducted ID checks of the driver and the passengers which lasted over an hour (Siedlecka, 2019). After that, Police followed the activists to their destination, where another ID check took place due to an alleged petty traffic offence (Siedlecka, 2019). Instead of giving a ticket, the Police made all of the activists (including passengers) come to the Police station in order to ‘conduct further actions’ (Siedlecka, 2019). They were held at the Police station for over 2 hours, although no formal arrest procedures were initiated and the passengers of the cars were not even interrogated (Greenpeace Poland, 2019). That is a very striking example of a Police stop, with no formal arrest, which was criticised by some of the media but went unnoticed by others. As a side note, it should be recorded that environmental activists also suffered from some controversial stops by the border forces. Media described numerous cases of foreigners being stopped at Poland’s border due to supposed non-fulfilment of conditions to enter the country (Gurgul & Łazarczyk, 2018; Watoła, 2018). Those stopped were activists of different environmental NGOs, and they were heading for the March for Climate which was planned during COP24 in Katowice (Gurgul & Łazarczyk, 2018; Watoła, 2018). The fact has also been reported by an international NGO, Climate Action Network, who claimed there were at least 12 cases of stops at the border or deportation procedures taken against Belgian, German, Ukrainian, Kazak and Belarussian citizens (Watoła, 2018). The border police itself confirmed 161 such cases, claiming that the reason for refusal of entry to Poland was they ‘posed a threat to national safety’ (Watoła, 2018).

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The Pandemic and Women Strike in 2020 Finally, the third threshold case occurred in 2020 and was once again anchored in the freedom of assembly in connection with pandemic restrictions. On 22 October 2020, the Polish Constitutional Tribunal declared that the law providing for the possibility to legally terminate a pregnancy in cases of foetal abnormalities (including when they are likely fatal) was unconstitutional (Constitutional Tribunal, 2020). The judgement immediately triggered what turned out to be probably the biggest wave of public protests since the democratic transition, lasting more than a month (Magdziarz & Santora, 2020). At the beginning of the protests, the activity of the Police towards the protesters was limited and mainly involved blocking their way towards churches. However, as early as 29 October 2020, Amnesty International called for protection of the peaceful protests by the authorities since violent incidents involving counter-demonstrators were noticed. On 23 October 2020, the prime minister signed an ordinance which allowed the government to call upon military police in order to protect public safety and order as of 28 October 2020. The attitude of the Police towards protesters started to change in the second week of November 2020. The reason might have been the  order of the Commander of the Warsaw Police of 7 November 2020, where it was recommended to take positive action against anyone blocking the street without any negotiation. The order was leaked to the press (Żemła et al., 2020). In November at least three opposition MPs were involved in incidents connected with the use of tear gas by the Police or even physical contact with Police officers; among these MPs was the vice-speaker of the lower chamber of parliament (Ambroziak, 2020; Partyła, 2020; Wójcik, 2020). The Police started to conduct extensive ID checks of the protesters. At the same time, the official narrative revolved around public assemblies of more than five persons being forbidden for public health reasons during the pandemic. ID checks usually take place onsite; however, some protesters were arrested or even transferred to Police stations outside Warsaw, up to 130 km away, and let out at night with no transport back home available (Ombudsman, 2021a).

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The strategy of mass ID checks continued when the demonstrations resurged in January 2021, when the judgement against abortion was published in the official journal and thus came into force. For example, on 28 January 2021, 417 protesters in front of the Constitutional Tribunal were subjected to ID checks. The following night, a private broadcasting company showed an interview with Wojciech Hermeliński (2021), a former judge of the Constitutional Tribunal, who said: Police powers are regulated in the Police Act. There are three basic tasks of the Police and the Police can act only within the boundaries of these tasks. These are: detection and prevention of crimes, search of missing persons or those hiding from criminal justice. (…) The particular actions that Police may conduct in order to fulfil these tasks are enlisted in the Police Act. The first one is an ID check in order to establish identity of a person. But all actions, including ID checks, have to be conducted within these basic tasks. Yesterday, when I was watching what happened in the Szucha Alley, I was watching this group of ten women who were sitting in the middle of the street and the Police were struggling with them and demanded IDs. One would have to assume that all these women were either hiding from justice, or are suspected of some crimes, or they had run away from home. Only then could the Police conduct ID checks. (…) There is no such thing as a preventive ID check, just in case, in order to know the identity of a person, because maybe this name will be of use, maybe in the future it would be connected with an act of some sort. An ID check must have factual grounds, that is it has to happen within three basic tasks of the Police forces. (…) The Police officer has to—it is said in the relevant regulation as amended last year—give his rank, name and surname in such a way that the citizen could write it down. The officer has to give factual and—if the person so demands—legal grounds of the stop.

This statement is a clear demonstration of how the described watershed events influenced the discussion on the issue of Police stops and led to public debate on the boundaries of Police powers to stop a citizen, that is, whether the statutory provisions might be interpreted literally, as simply allowing the Police to conduct ID checks, or they should be construed as limited by the statutory tasks of Police forces. The latter conclusion has recently gained importance and started to be expressed in the case law of Polish courts (Ombudsman, 2019).

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2.5 Participants to the Debate and Its Main Threads After this overview of examples when Police stops that have lately attracted attention of the media and public opinion, the debate itself has to be reviewed. The main participants of the debate are the Ombudsman and national and international NGOs, such as the Helsinki Foundation for Human Rights, Court Watch Poland and Amnesty International. All of the aforementioned NGOs intervened in individual cases, published open letters or formally requested explanations from the Police or Ministry of Internal Affairs, as well as published reports and statements on the use of Police stop and search powers. What has to be underlined is that Adam Bodnar, who was the Ombudsman from 2015 until 2021, was formerly (2010–2015) the vice-president of the Helsinki Foundation of Human Rights and an assistant professor specialising in human rights. His academic background and experience in a leading NGO shaped the public discussion in a particular manner: the Ombudsman used his constitutional powers (especially to bindingly demand explanations from other authorities) to present a similar perspective to that of the NGOs. Thus, although the Ombudsman is an official appointed by the parliament, in Poland his actions were convergent with the NGOs’ initiatives. Another striking feature of Polish public discussion regarding Police stops is the fact that, although the National Police Headquarters formally responds when it is addressed by the Ombudsman (as it is their duty), the responses are usually based on an irrebuttable assumption that all Police actions had been conducted lawfully and were necessary for the maintenance of public order (e.g. Ombudsman, 2021b; National Police Headquarters, 2021). The Police also claimed that publishing video footage of Police interventions by regular citizens may violate the GDPR as it relates to personal data of the policemen (City of Olsztyn Police Department, 2020a, 2020b). Other governmental bodies rarely addressed the issue of Police stops raised by the Ombudsman. Polish debate on Police stops is thus one-sided. In fact, it is revolving among the NGOs and Ombudsman, whereas the participation of the Police is only ostensible.

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A quantitative media analysis with respect to Police stops is significantly hampered for linguistic reasons. First, there is no Polish equivalent of the word ‘stop’. The only term is zatrzymanie, which is also equivalent to English for ‘arrest’. Thus, the results of such a search would be unreliable. Second, the words which are equivalents of ‘ID check’, namely legitymowanie, or of the expression ‘to conduct an ID check’, that is legitymować, also mean ‘legitimisation’ and ‘to legitimise’, that is, as ‘justification’ and ‘to justify’. These expressions are thus used in various contexts which may be, but do not have to be, connected with Police stops. For this reason, the quantitative content analysis for the purpose of this chapter used the phrase legitymowanie obywateli (i.e., ‘ID checks of citizens’). It has been done with regard to the online archives of three bestselling daily and weekly newspapers (among those creating new contents and covering social and political issues) in Poland as of September 2021, as well as the main information online services run by three leading TV broadcasting companies, one of which is state-owned (Polskie Badania Czytelnictwa, 2021). The search covered the period 2001–2020 due to the limited amount of accessible data from earlier periods. The results of the analysis are presented in Table 2.2.6 The increase in frequency in the use of the term ‘ID checks of citizens’ over the last two decades, and especially over the last 5 years, is clearly Table 2.2  The use of “ID checks of citizens” in the chosen Polish media in 2001–2020 Name of the media

Fakt

TVP Polsat Super Gazeta Newsweek Info. News. TVN24. Express Wyborcza Polityka Polska Sieci pl pl pl

Total 2001–2010 2011–2020 2016 2017 2018 2019 2020

38 0 38 4 9 5 4 11

14 1 13 1 1 5 0 4

295 14 281 21 29 35 47 149

166 50 116 4 18 21 11 26

42 4 38 4 7 10 1 8

2 NA 0 0 2 0 0 0

1 0 1 0 0 0 1 0

58 NA 58 4 8 7 13 34

52 0 52 3 0 7 3 39

 Data collected on 9 January 2022. Fakt was first issued in 2003. Sieci was first issued in 2012. TVPInfo.pl was established in 2009, whereas PolsatNews.pl—in 2015 and TVN24.pl—in 2007. 6

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visible. Most of the articles covering the issue discussed ID checks of protesters. In 2020, ID checks related to the pandemic restrictions were also frequently mentioned. A distinctive feature of Polish public debate on Police stops is that it mostly revolves around the freedom of assembly. This value seems to be of particular importance to society, which may arise from historical determinants (Czarny & Naleziński, 1998). Sadly, the debate itself was easily politicised as the assemblies themselves are usually of a political nature. This resulted in the eager interest in the issue of Police stops expressed by the liberal and leftist media in comparison to the invisibility of the topic to the rightist or conservative  ones (see Sieci weekly and TVP Info in Table 2.2). What is also specific is the complete absence of the government from the public debate on Police stops. If any comments arise, they simply state that all the actions of the Police are lawful and justified. The government does not actually engage in the discourse understood as a method of achieving consensus.

2.6 Solutions and the Future During the last 5 years, Police stops undoubtedly arose as a public issue in Poland. For the first time since the democratic transition in the last decade of twentieth century, this issue became a public one, seriously discussed by the media and important actors on the political stage. The emergence of this problem in public debate has been caused by two factors. First, widely discussed cases of malpractice of the Police appeared. On the other hand, some watershed events occurred which involved public figures (such as Władysław Frasyniuk or MPs). The current discussion, run by the media, NGOs, the Ombudsman as well as the courts in their rulings (given in response to citizens’ complaints or—to the contrary—the charges posed by the Police or the prosecutors) revolves around the boundaries of Police powers to stop individuals in order to check their ID, in terms of both justification of the stop and its duration. The first thread of the discussion is connected with the already mentioned question whether the Police power to stop a

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person may be enforced without any additional conditions or is in fact limited (or should be limited) by the obligation to act within the statutory tasks of the Police, mostly connected with combating crime. The second thread is connected with the question whether a particularly lengthy ID check or an ID check involving the transfer of the person concerned to a Police station retains the status of a stop or becomes an arrest—with the latter thesis already posed in some rulings of the Polish courts. It should not be overlooked that the wide debate only started when middle-class protesters started to be stopped due to their political activity. Police stops obviously must have happened before but, as long as the practice was directed towards other social groups, possibly not able to raise their voice and be heard by the leading media, it eluded public attention. As soon as somewhat more visible social groups were affected, the topic was noticed by the media and the public discussion started to evolve. The fact that stopped protesters are usually representing a particular set of political values made the debate political in its nature. The solution to the identified problems has to be a political one as well. Apart from the introduction of body-worn cameras, no legislative action has been taken as a result of the public debate so far. Nevertheless, the simple fact that society is becoming aware of Police powers to stop and search and its potential to be truly bothersome is an important value. The problem of Police stops and searches has been noticed. This opens up prospects for legislative changes and research activity in the future. Apart from limiting the Police powers themselves, compensation mechanisms for their improper use have to be established. Polish courts have tried to fill legislative gaps by claiming that lengthy ID checks in fact amount to arrests and have to be treated as such (Circuit Court of Warsaw, 2018), but systemic mechanisms have to be established. The public debate creates a favourable environment for change. However, political factors also have their role to play which makes necessary reforms probable only in a long-term perspective. Thus, with reference to John Kingdon’s (2013) terminology, one would have to say that, in recent years, a ‘problem stream’ regarding Police stops clearly emerged in Poland. A ‘policy stream’ can also be discerned after a closer look—the courts and NGOs have proposed specific solutions, connected with limiting the ID checks’ length and interpreting

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or amending the law in such a way that a stop would be clearly admissible only in case of a reasonable suspicion of an offense. A ‘political stream’, however, is yet to appear.

References Literature Ambroziak, A. (2020, November 19). Biejat: Ludzie krzyczeli, że “naziści biją”. To nie były bojówki, tylko policja. Oko Press. Retrieved November 13, 2022, from https://oko.press/biejat-­ludzie-­krzyczeli-­ze-­nazisci-­bija-­to-­nie-­byly-­ bojowki-­tylko-­policja-­wywiad/ Amnesty International. (2018). The power of ‘The Street’. Protecting the right to peaceful protest in Poland. Amnesty International, 36–36. Retrieved November 13, 2022, from https://amnesty.org.pl/wp-­content/uploads/2018/ 06/Poland-­report-­FINAL.pdf Bojanowski, W. (2017, May 20). Śmierć w komisariacie [TV broadcast].TVN24. Retrieved November 13, 2022, from https://tvn24.pl/debata/smierc-­w-­ komisariacie,97.html#chapter-­0 Feliksiak, M. (2019). Oceny działalności instytucji Publicznych. Komunikat z Badań Centrum Badania Opini Społecznej, 44, 1–26. Retrieved November 13, 2022, from https://www.cbos.pl/SPISKOM.POL/2019/K_044_19.PDF Boguszewski, M. (2013). Przestrzeganie prawa i funkcjonowanie wymiaru sprawiedliwości w Polsce. Komunikat z Badań Centrum Badania Opini Społecznej, 5, 1–24. Retrieved November 13, 2022, from http://www.cbos. pl/SPISKOM.POL/2013/K_005_13.PDF City of Olsztyn Police Department. (2020a, April 17). Response to the Ombudsman’s statement regarding publishing video footage of Police interventions. Retrieved November 13, 2022, from https://bip.brpo.gov.pl/sites/ default/files/Odpowied%C5%BA%20policji%2C%2017.04.2020.pdf City of Olsztyn Police Department. (2020b, April 22). Response to the Ombudsman’s statement regarding publishing video footage of Police interventions. Retrieved November 13, 2022, from https://bip.brpo.gov.pl/sites/ default/files/Odpowied%C5%BA%20KMP%20Olsztyn%2C%20 22.04.2020.pdf Cora, Ł. (2008). O pojęciu pozaprocesowego zatrzymania osoby. Państwo i Prawo, 3, 72–82.

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Czapska, J., Radomska, E., & Wójcik, D. (2015). Legitymizacja policji w Polsce na tle europejskich badań empirycznych. Archiwum Kryminologii, 37, 71–100. Czarny, P., & Naleziński, B. (1998). Wolność zgromadzeń. Wydawnictwo Sejmowe. Czerwińska, D., Jasiński, W., & Kremens, K. (2023). Legitymowanie — regulacje prawne i praktyka stosowania. Przegląd Policyjny, 2, in print. District Court of Warsaw. Judgment of 30 August, 2018. XI W 2617/18. https://orzeczenia.srodmiescie.warszawa.so.gov.pl/content/$N/ 154505300005506_XI_W_002617_2018_Uz_2018-08-30_002 Dobrowolska-Opała, M. (2018). Rola Policji w zapewnianiu bezpieczeństwa meczów piłki nożnej w ujęciu sieciowym. Wydawnictwo Adam Marszałek. Fil, K. (2004). Wizerunek policji w oczach mieszkańców Lublina. Annales Universitatis Mariae Curie-Skłodowska, XI, 141–151. Główny Urząd Statystyczny. (2015). Struktura narodowo-etniczna, językowa i wyznaniowa Polski. Narodowy Spis Powszechny Ludności i Mieszkań 2011. Retrieved November 13, 2022, from https://stat.gov.pl/download/gfx/portalinformacyjny/pl/defaultaktualnosci/5670/22/1/1/struktura_narodowo-­ etniczna.pdf Główny Urząd Statystyczny. (2022). Narodowy Spis Powszechny Ludności i Mieszkań 2021. Raport z wstępnych wyników. Retrieved November 13, 2022, from https://stat.gov.pl/download/gfx/portalinformacyjny/pl/defaultaktualnosci/6494/6/1/1/raport_zawierajacy_wstepne_wyniki_nsp_2021._ publikacja_w_formacie_pdf.pdf Grabowska-Moroz, B. (2018). Inside Police Custody  – Prawa procesowe na posterunkach Policji. Raport krajowy – Polska. Helsinki foundation for human rights. Retrieved November 13, 2022, from https://www.hfhr.pl/wp-­content/ uploads/2018/12/Inside-­Police-­Custody-­%E2%80%93-­prawa-­procesowe-­ na-­posterunkach-­Policji-­20181219.pdf Greenpeace Poland. (2019, January 23). Commentary on special surveillance of activists [Press release]. Retrieved November 13, 2022, from https://www.greenpeace.org/poland/komentarze/1980/aktywisci-­p od-­ specjalnym-­nadzorem-­komentarz-­dyrektora-­greenpeace/ Gurgul, A., & Łazarczyk, G.. (2018, December 18). Marsz dla Klimatu na COP24. Straż graniczna zatrzymała aktywistów na granicy. Wyborcza.pl. Retrieved November 13, 2022, from https://wyborcza. pl/7,75398,24256134,161-­zagranicznych-­aktywistow-­nie-­dojechalo-­na-­ marsz-­dla-­klimatu.html Grzegorczyk, T., & Tylman, J. (2014). Polskie postępowanie karne. Lexis Nexis.

46 

D. Czerwińska

Guzik-Makaruk, E. (2011). Poczucie bezpieczeństwa obywateli w Polsce. Identyfikacja i przeciwdziałanie współczesnym zagrożeniom. Wolters Kluwer Polska. Hermeliński, W. 2021. Oral statement in ‘Sprawdzam’ TV broadcast. TVN24. Retrieved November 13, 2022, from https://tvn24.pl/polska/strajk-­kobiet-­ protesty-­p o-­w yroku-­t k-­w s-­a borcji-­s edzia-­w ojciech-­h ermelinski-­o -­ zachowaniu-­policji-­5003552. Own translation. Jabłoński, M. (2021). Umorzenie sprawy naruszenia przez Frasyniuka nietykalności policjantów  – ostateczne. Polska Agencja Prasowa. Retrieved November 13, 2022, from https://www.pap.pl/aktualnosci/ news%2C1020314%2Cumorzenie-­sprawy-­naruszenia-­przez-­frasyniuka-­ nietykalnosci-­policjantow Jasiński, W., & Kremens, K. (2019). Criminal law in Poland. Kluwer Law International. Karaźniewicz, J. (2022). Kontrola osobista po nowelizacji ustawy o Policji. Czy zmiany wynikające z wyroku TK usunęły czy pogłębiły wątpliwości co do tej instytucji? Państwo i Prawo, 1, 129–143. Karaźniewicz, J. (2021). In K.  Chałubińska-Jentkiewicz & J.  Kurek (Eds.), Ustawa o Policji. Komentarz (pp. 133–134). C.H. Beck. Kingdon, J. (2013). Agendas. Alternatives and Public Policies. Klepczyński, A., Kładoczny, P., & Wiśniewska, K. (2019). TYMCZASOWE ARESZTOWANIE – (NIE)TYMCZASOWY PROBLEM: Analiza aktualnej praktyki stosowania tymczasowego aresztowania. Helsinki Foundation for Human Rights. Retrieved November 13, 2022, from https://www.hfhr. pl/wp-­c ontent/uploads/2019/07/HFPC-­Tymczasowe-­a resztowanie-­ nietymczasowy-­problem-­web_01.pdf Klauziński, S. & Jałoszewski, M. (2018, August 30). Sąd: Frasyniuk niewinny. Wszyscy wiedzą, że nie jest Janem Józefem Grzybem. OKO Press. Retrieved November 13, 2022, from https://oko.press/sad-­frasyniuk-­niewinny-­wszyscy-­ wiedza-­ze-­nie-­jest-­janem-­jozefem-­grzybem/ Lloyd-Cape, E. (2018). INSIDE POLICE CUSTODY 2: An empirical study of suspects’ rights at the investigative stage of the criminal process in nine EU countries. : Irish Council for Civil Liberties. Retrieved November 13, 2022, from https://www.hfhr.pl/wp-­content/uploads/2019/01/ICCL_IPC2_comparative_report_WEB.pdf Magdziarz, A., & Santora, M. (2020, October 30). Women converge on Warsaw, heightening Poland’s largest protests in decades The New  York Times. Retrieved November 13, 2022, from https://www.nytimes.com/2020/10/30/ world/europe/poland-­abortion-­women-­protests.html

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National Police Headquarters. (2021, April 27). Response to the Ombudsman’s statement. Retrieved November 13, 2022, from https://www.rpo.gov.pl/ sites/default/files/Odpowiedz_KGP_27.04.2021.pdf Ombudsman. (2017, May 20). Śmierć w komisariacie – RPO bacznie przygląda się sprawie. Sprawa trwa ponad rok. DOKUMENTY [Press release]. Retrieved November 13, 2022, from https://bip.brpo.gov.pl/pl/content/smierc-­na-­ komisariacie-­Wroclaw-­RPO-­bacznie-­przyglada-­sie-­sprawie Ombudsman. (2018a, March 28). Sytuacja mniejszości ukraińskiej i migrantów ukraińskich w Polsce – konferencja w Biurze RPO [Press release]. Retrieved November 13, 2022, from https://bip.brpo.gov.pl/pl/content/sytuacja-­ mniejszosci-­ukrainskiej-­i-­migrantow-­ukrainskich-­w-­polsce-­konferencja-­w-­ biurze-­rpo. Ombudsman. (2018b). Wolność zgromadzeń w Polsce w latach 2016–2018. Raport Rzecznika Praw Obywatelskich. Biuro Rzecznika Praw Obywatelskich. Retrieved November 13, 2022, from https://bip.brpo.gov.pl/sites/default/ files/Wolno%C5%9B%C4%87%20zgromadze%C5%84%20w%20 Polsce%20w%20latach%202016-­2018.%20Raport%20RPO.pdf Ombudsman. (2019, March 28). Sąd przyznał zadośćuczynienie od państwa bezprawnie zatrzymanemu 11 listopada 2017 r. [Press release]. Retrieved November 13, 2022, from https://bip.brpo.gov.pl/pl/content/zadoscuczynienie-­ za-­bezprawne-­zatrzymanie-­11-­listopada-­2017 Ombudsman. (2021a, January 11). Raport Krajowego Mechanizmu Prewencji Tortur z wizytacji “ad hoc” komisariatów i pomieszczeń dla osób zatrzymanych lub doprowadzonych do wytrzeźwienia, znajdujących się w jednostkach podległych Komendzie Stołecznej Policji oraz Komendzie Wojewódzkiej Policji z siedzibą w Radomiu. Retrieved November 13, 2022, from https:// bip.brpo.gov.pl/sites/default/files/Raport%20KMPT%20z%20wizytacje%20pomieszcze%C5%84%20policyjnych%20po%20demonstracjach%20zwi%C4%85zanych%20z%20wyrokiem%20TK%20-­% 20 11.01.2021.pdf Ombudsman. (2021b, March 26). Statement to the National Police Headquarter. Retrieved November 13, 2022, from https://bip.brpo.gov.pl/sites/default/ files/Wyst%C4%85pienie%20Generalne%20do%20Komendanta%20 G%C5%82%C3%B3wnego%20Policji%20w%20zwi%C4%85zku%20 z%20nieprawid%C5%82owo%C5%9Bciami%20w%20 dzia%C5%82aniu%20Policji%20po%20spontanicznych%20protestach%20w%20dniu%2010.03.2021%20r.%2C%2026.03.2021.pdf

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Opaliński, B., Rogalski, M., & Szustakiewicz, P. (2020). Ustawa o Policji. Komentarz. C.H. Beck. Partyła, M.. (2020, November 29). Barbara Nowacka spryskana gazem przez funkcjonariusza. Policja wyjaśnia sprawę. RMF24.pl. Retrieved November 13, 2022, from https://www.rmf24.pl/raporty/raport-­strajk-­kobiet/news-­ barbara-­n owacka-­s pryskana-­g azem-­p rzez-­f unkcjonariusza-­p olicj,nId, 4884967#crp_state=1. Pilitowski, B. (2019). Current practice of applying pre-trial detention in Poland. Report from empirical research. Court Watch Poland Foundation. Retrieved November 13, 2022, from https://courtwatch.pl/wp-­content/uploads/2019/ 12/fcwp_PTD_en.pdf Polskie Badania Czytelnictwa. (2021). Report on the media market in September. Retrieved January 09, 2022, from https://www.pbc.pl/rynek-­sprzedazy/ Płocki, R. (2019). Processing of personal data by the police in the light of administrative proceedings conducted by the supervisory authority. Przegląd Policyjny, 135, 173–182. Pływaczewski, E. (2017). Bezpieczeństwo obywateli  – prawa człowieka  – zrównoważony rozwój. Wydawnictwo Temida, 2. Pływaczewski, W., & Kudrelek, J. (Eds.). (2010). Przestępczość stadionowa. Etiologia, fenomenologia, przeciwdziałanie zjawisku. Wydawnictwo Wyższej Szkoły Policji. Pływaczewski, W., & Wiśniewski, B. (Eds.). (2012). Przestępczość stadionowa. Diagnoza i przeciwdziałanie zjawisku. Wydawnictwo Wyższej Szkoły Policji. Siedlecka, E. (2019, January 22). Aktywiści, terroryści. Polity 3195(4), 25–27. https://www.polityka.pl/tygodnikpolityka/kraj/1779048,1,greenpeace-­pod-­ specjalnym-­nadzorem.read. Aebi, M.  F., & Tiago, M.  M. (2020). SPACE I  - 2020  - Council of Europe Annual Penal Statistics: Prison Populations. Retrieved November 13, 2022, from https://wp.unil.ch/space/files/2021/04/210330_FinalReport_SPACE_ I_2020.pdf Szumiło-Kulczycka, D. (2012). Kontrola osobista, przeglądanie zawartości bagaży, przeszukanie (przyczynek do kwestii racjonalności legislacji). Państwo i Prawo, 3, 34–44. Taracha, A. (2020). Kontrola osobista i przeglądanie zawartości bagażu (art. 15 ust. 1 pkt 5 ustawy o Policji) a ochrona konstytucyjnych praw człowieka. Prawo w Działaniu, 41, 64–75. TVN24. (2021, March 22). Nagrywał zatrzymanie Stachowiaka, był oskarżony o przemoc wobec policjantów. Sąd go prawomocnie uniewinnił. Retrieved

2  The Rise of Police Stops as a Public Issue in Twenty-First… 

49

November 13, 2022, from https://tvn24.pl/wroclaw/wroclaw-­patryk-­h-­ nagrywal-­zatrzymanie-­igora-­stachowiaka-­zostal-­oskarzony-­o-­napasc-­na-­ policjantow-­sad-­dwukrotnie-­go-­uniewinnil-­5049728 TVN24. (2020, February 19). Śmierć Igora Stachowiaka. Kary więzienia dla byłych policjantów i zakaz wykonywania zawodu. Retrieved November 13, 2022, from https://tvn24.pl/wroclaw/ wroclaw-­smierc-­igora-­stachowiaka-­jest-­prawomocny-­wyrok-­3896013 Watoła, J. (2018, December 8). Co najmniej 12 uczestników COP24 zatrzymanych na granicy lub wydalonych z Polski. “To niepokojące”. Wyborcza.pl. Retrieved November 13, 2022, from https://katowice.wyborcza.pl/ katowice/7,166970,24256099,co-­n ajmniej-­1 2-­u czestnikow-­c op24-­ zatrzymanych-­na-­granicy.html Wójcik, K. (2020, November 19). Czarzasty: Zostałem uderzony, dziś dowiedziałem się, że pobiłem policjanta. RMF24.pl. Retrieved November 13, 2022, from https://www.rmf24.pl/raporty/raport-­strajk-­kobiet/ n e w s -­c z a r z a s t y -­z o s t a l e m -­u d e r z o n y -­d z i s -­d ow i e d z i a l e m -­s i e -­z e -­ pobilem,nId,4864736#crp_state=1. Żemła, E., Wyrwał, M., & Halicki, P. (2020). “Działamy, nie negocjujemy!!!” Szef stołecznej policji nakazał usuwanie siłą protestujących z ulic. Znamy treść jego polecenia. Onet.pl. Retrieved November 13, 2022, from https:// wiadomosci.onet.pl/tylko-­w -­o necie/strajk-­k obiet-­s zef-­p olicji-­n akazal-­ usuwanie-­protestujacych-­z-­ulic/vxjxvg7 Zagórski, J. (2004). Zatrzymanie przez Policję oraz umieszczenie w policyjnych izbach zatrzymań. Państwo i Prawo, 4, 84–97.

Cited Legal Acts Decyzja Komendanta Głównego Policji z 2 grudnia 2019 o funkcjonowaniu Krajowego Systemu Informacyjnego Policji. Dekret z dnia 21 grudnia 1955 r. o organizacji i zakresie działania Milicji Obywatelskiej, Dz.U. nr 46, poz. 311. Rozporządzenie Ministra Spraw Wewnętrznych z 14 lipca 1987 r. w sprawie szczegółowych warunków i sposobu postępowania członków Ochotniczej Rezerwy Milicji Obywatelskiej przy wykonywaniu uprawnień w zakresie powierzonych im zadań, Dz.U. nr 23, poz. 134. Ustawa z dnia 14 lipca 1983 r. o urzędzie Ministra Spraw Wewnętrznych i zakresie działania podległych mu organów, Dz.U. nr 38, poz. 172.

50 

D. Czerwińska

Ustawa z dnia 6 kwietnia 1990 r. o Policji (The Police Act), t.j. Dz.U. 2020, poz. 360. Ustawa z dnia 6 czerwca 1997 r. – Kodeks karny (Criminal Code), t.j. Dz.U. 2022, poz. 1138. Ustawa z dnia 6 września 2001 r. o dostępie do informacji publicznej (Freedom of Information Act), Dz.U. 2020, poz. 2176. Ustawa z dnia 14 grudnia 2018 roku o ochronie danych osobowych w związku z zapobieganiem i zwalczaniem przestępczości, Dz.U. 2019 poz. 125, art. 58. Zarządzenie nr 180 Prezesa Rady Ministrów z dnia 23 października 2020 r. w sprawie użycia żołnierzy Żandarmerii Wojskowej do udzielenia pomocy Policji. Monitor Polski poz. 1003.

Cited Case-Law Constitutional Tribunal. Judgment of 22 October, 2020. K 1/20. OTK-A 2021/1. Constitutional Tribunal. Judgment of 14 December, 2017. K 17/14. OTK-A 2018–4. ECtHR.  Judgment of 18 October, 2018a. Application no. 15333/15. Burża v.Poland. ECtHR. Judgment of 19 July, 2018b. Application no. 52683. Zagalski v. Poland. ECtHR.  Judgment of 5 July, 2018. Application no. 43924/12. Zieliński v. Poland. Circuit Court of Warsaw. Judgment of 27 December, 2018. XVIII Ko 61/18. http://orzeczenia.warszawa.so.gov.pl/content/$N/154505000005406_ XVIII_Ko_000061_2018_Uz_2019-­01-­14_001

3 The Issue of Police Stops in Croatia Ruža Karlović, Željko Karas, and Ivana Glavina Jelaš

3.1 Introduction In the Republic of Croatia and its neighbouring states, there is no police power called police stop and search. Instead, in Croatia and the region, the police power to conduct an identity check can be considered the equivalent of the power of police stops if there is justified suspicion or reasonable explanation. This allows the police to stop a person and request to see their personal identification. It is important to stress that, according to police regulations in Croatia, this police power is applied for performing police work in the prevention of crime, for preventing and removing dangers and threats, and for a criminal investigation. The police power to conduct an identity check may also be associated with the power to conduct a limited frisk search of the person and their clothing. This is

R. Karlović (*) • Ž. Karas • I. Glavina Jelaš University of Applied Science of Criminal Investigation and Public Security, Zagreb, Croatia e-mail: [email protected]; [email protected]; [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 J. de Maillard et al. (eds.), The Politicization of Police Stops in Europe, Palgrave’s Critical Policing Studies, https://doi.org/10.1007/978-3-031-35125-9_3

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performed by feeling the outside of the clothing or asking the person to display the items they are carrying on their person voluntarily. However, it is important to note that the power to check one’s identity or to conduct a limited search of the person, assets, or vehicle is based on a justified suspicion or reasonable explanation. In the context of the primary goal of this book, we will present the police authority to check the identity of citizens of the police in today’s Croatian society. We will also point out the importance of the role of police education in the exercise of identity checks. Before that, we will briefly introduce Croatia to readers with the key years in recent Croatian history that are important in Croatian society’s democratisation and the changes in the field of police acts. The Republic of Croatia left the communist system and became independent in 1990. The same year is permanently recorded in Croatian history as the year of the adoption of the first Constitution of the independent Republic of Croatia. The key values of the Constitution are written down: the definition of Croatia as a sovereign state of the Croatian people and its citizens belonging to other nations and minorities, the state of parliamentary democracy, the rule of law, and the market economy (Ustav RH, NN 56/90). After that, the period of transition from a communist to a democratic society began. In 1991, Croatia declared independence from socialist Yugoslavia. According to the Constitution, Croatia is a modern, democratic, and social state. Croatia was admitted to the Council of Europe in 1996. It became a member of NATO in 2009, and in 2013, it became a member of the European Union. According to the 2011 Census,1 Croatia has 4,284,889 inhabitants. The vast majority of the population are Croats (90.4%), and the largest national minority are Serbs (4.36%). From the Constitution onwards, there is a threefold branch of power: legislative, executive, and judicial as the three mutually independent powers that make the foundation of a democratic society. The role of the police in a democratic society is manifested through acting according to the law. The problem was that our police inherited a militia style of performance, ignoring the relationship with citizens. The militia were perceived negatively by a significant part of the citizens. The situation in Croatia was very similar to other socialist countries, where,  Official data from the 2021 census have not yet been fully published, but the total population of Croatia has decreased by almost 10% in the last 10 years. https://popis2021.hr/. 1

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some authors point out, about 43% of citizens said they would not contact the police even if they needed to. About 37% of citizens in some post-socialist countries stated that they are afraid of the police and fearful of the perpetrator (Uildriks & van Reenen, 2003, 56). The militia’s role in most communist systems was very similar; it had the dual function of suppressing crime and maintaining ideology. Oversight of citizens was needed because the regime did not trust some citizens (Uildriks & van Reenen, 2003, 10). One of the first conditions for becoming a militiaman was ideological and moral-political suitability (Dinić, 1973). Today, in Croatia, a police officer may not be a member of a political party or engage politically. This is because police officers should act professionally, neutrally, and objectively, treating everyone equally according to legal norms. The militia performed as a quasi-military style of police. This was supposed to transform into a community policing model focused not only on crime but also on other social problems and delinquency, and working with the community as a partner. However, it was easier to change laws and strategies than people. People need to learn to obey the laws, not treat them as if they were imposed on them. Croatia has put the safety of each individual at the heart of police work through the community policing model to forget the cold and distance between the police and citizens that was characteristic of the communist era. The following is an overview of legislative changes in the field of identity verification of citizens by the police and a presentation of some of the most important reports that control the work of the police, that is, the ombudsman, the media, non-governmental organisations, and so on.

3.2 An Overview of Changes in Croatian Police Legislation Over the Past Three Decades First Decade (from 1990 to 1999) The democratisation of Croatian society from 1990 to 1999 resulted in changes and adjustments within the socio-political and constitutional order, as mentioned in the introduction. To depoliticise the police and

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maintain efficiency and professionalism, the transformation of the classic police model into the community policing model was begun. After the community policing model was implemented in Western democracies, it was transferred to countries in transition without strong democratic traditions (De Maillard & Terpstra, 2021). The goal was to build a security culture and trust between citizens and the police. Therefore, it was essential to raise awareness that the role of the police was to protect social values derived from the Croatian Constitution. In these first 10 years, there were changes in the law in effect that regulated police powers. The Internal Affairs Act (IAA) was adopted in 1991 after the abolition of the communist political system. The majority of provisions on police powers, aligned with the new democratic principles, were borrowed from elsewhere, with the necessary adjustments. Before 1990, in a communist environment of political violence in which citizens should have been satisfied if they had not been abused in a police station, the power to stop and check identity was not considered a particularly important police power with respect to citizens’ rights. Therefore, after the independence of Croatia in 1990, the emphasis of legislative changes was on more serious police powers. Accordingly, this first decade of post-communist legislation was focused on improving basic standards of human rights. In this period, it was more important to establish the fundamental democratic processes in society and to deal with more serious police powers, and less attention was given to police powers such as identity checks. The provision on identity checks was contained in Articles 36 and 37 of the IAA. At the same time, Croatia was in the process of adopting new legal norms in the field of internal affairs. It is worth mentioning the cooperation of the Ministry of the Interior with the General Secretariat of the Council of Europe, which organised a joint seminar on the functions of the police in a democratic society. Police powers that ensure the protection of human rights were discussed. It was pointed out that how the police exercise their powers play a vital role in developing a sense of trust and security among citizens (Proceedings, 1994).

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Second Decade (2000–2009) A greater shift away from post-communist legislation was made in the second decade. During this period, Croatia also had plans to prepare for accession to the European Union. One of the criteria was the adoption of EU legislation and practice. The first significant step was to provide more detailed regulations through the new Police Act adopted in 2000 and which came into effect in 2001. This Act specifically listed all police powers. Identity checks were prescribed in Article 25 of that Act as the first police power. Nearly the entire Act was new, with all powers regulated in detail. The tendency towards narrow regulation was a reflection of attempts to increase respect of the law (Krapac, 1999). The 2000 Police Act prescribes 10 reasons for the police to have the power to check the identity of a person (Article 25): 1. who is to be arrested, taken in, detained or sent to the competent state administration bodies; 2. who represents a threat requiring police action; 3. who is subject to inspection or search, or against whom other measures and activities prescribed by law are undertaken; 4. who is caught in another person’s home, building or other premises, or in a vehicle subject to inspection or search, if the verification of identity is necessary; 5. who is caught in an area or a building in which the freedom of movement is temporarily restricted, if the verification of identity is necessary; 6. who reports the commission of a criminal act, misdemeanour or offence, or the perpetrators of those acts, or who provides information of interest for police activities; 7. who, by how they behave, raises suspicion that they are a perpetrator of a criminal act, misdemeanour or offence, or that they intend to commit it, or who, by their physical appearance, resembles a person who is the subject of a manhunt; 8. who is caught at the site of execution of a criminal act, misdemeanour or offence;

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9. who is found in a place where it is necessary, for security reasons, to establish the identity of all persons or the majority of persons; 10. at a justified request of official persons from state administration bodies, or of legal or natural persons. Though these provisions govern in detail the reasons for taking such action, it remains with the individual police officer to assess whether individual conditions are met in specific cases, thereby still allowing for the possibility of discretion. These bases for performing an identity check have remained in effect to the present day. Other provisions detail, for example, the duty to inform the citizen of the reason for the identity check and how the identity check should be performed by requesting to see their identity card or other identification with a photograph (Article 26, Police Act). Exceptionally, the identity check may be performed without a personal identification card based on a statement of a person whose identity is being verified. Taking certain actions (powers) does not depend on the will of the police officer but on the specific circumstances that, if they occur, determine the type of authority that the police officer must exercise as well as the time when he must exercise it. This also applies to an identity check. Great efforts are being made to educate police officers to avoid discrimination. Later in the text, we will dedicate a small part to education as a universal preventive means of abusing this power.

Third Decade (2010–2019) The third decade was marked by the Act on Police Affairs and Powers which was adopted in 2009 and remains in effect today. The basis for the apprehension of a person has not changed, except for some minor amendments in a few words and with the addition of the 11th reason for performing an identity check which pertains to a person who collects data on persons under police protection. In 2014, the provisions on identity checks were amended in the part that refers to the situation when private entities ask the police to establish the identity of the person they want to sue (private plaintiff). If the police officer presumes that these data could be abused, the private plaintiff may

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contact the police in writing. For example, if someone reports another person for a criminal offense that is being prosecuted under a private lawsuit, that person can ask the police to verify the identity of the person they want to sue privately (in writing request from the competent organisational unit of the police). In the substantiation of the Act in the parliamentary procedure, it was stressed that such provisions were added due to the reactions of the Personal Data Protection Agency, which observed that the subordinate legislation included the possibility to reject the identity check but that this was not stated at the legislative level. The second amendment to the Act was in 2019, and it again represented a less significant amendment of the provision on the manner of verification of one’s identity at the request of a private plaintiff. This change was implemented after a case with heavy media coverage. The legal amendments introduced the rule according to which the police officers do not have to physically approach a person but can check concrete identity through their records. The Act on Police Affairs and Powers is still in force and the identity check of persons is carried out under the reasons and circumstances prescribed in the aforementioned Act. These two legislative amendments were focused on the verification of a person’s identity at the request of a private plaintiff. This suggests this topic was the only area of discussion concerning identity checks in the third decade.

3.3 Frequency of Identity Checks Police officers may not randomly and non-selectively stop a person to verify their identity. The police officer may not, for example, stop a vehicle or a person unless there is a justified suspicion or some other reason according to operative knowledge for such an activity (Mršić, 2011). The average number of police stops executed to check one’s identity in the period from 2007 to 2018 was about 330,000 per year, giving an average rate of about 76 per 1000 persons (MOI, 2007–2018). Interestingly, this fact has never been the subject of discussion in Croatian professional circles, the media, politics, or any other social forum, except briefly as part of strategies at the start of the second

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millennium, which transposed those ideas that had previously been proposed in the American system (Pino & Wiatrowski, 2006: 62). In the unofficial papers prepared for a strategy of the Ministry of the Interior from 2003, there is a recommendation that identity checks are a pointless action and their frequency should be reduced (Cajner Mraović et  al., 2003:10). It was argued that it is necessary to reduce the excessive application of this power which impinges on civil rights. However, there is no detailed analysis of the national practice upon which such recommendations were based. These recommendations did not cause public concerns about police identity checks but were focused on reforming the preventive and operational work of the uniformed police to improve communications between citizens and the police. The reality is that identity verification is a quantitative indicator and is easily measured by police chiefs. Preventive actions, such as cooperation with citizens resulting in trust in the police, are more complicated to measure. The processes of democratisation and professionalisation of police organisations in transitional countries and Croatia demanded support from the entire social community and all levels within the same police organisation (Karlović & Buchheit, 2013). The role of the police in the community and police work as outlined in police laws, the Police Act, and Act on Police Affairs and Powers, is an essential means for understanding the police as a social institution and service. Identifying persons (legitimiranje) in the former system is synonymous with verifying the identity of persons today. This is, individually speaking, the most common official action of the uniformed police. However, in today’s society, police officers are more cautious in exercising this authority because a precondition of grounds for suspicion is required. In addition, citizens are informed today that they could complain about the actions of the police. Modification of the traditional model of policing towards community policing requires the principle of legality but also humanity. Community policing is not simply a technique or police tactic. It is a strategy that demands dedication and will develop with increased trust in the police as an important social institution (Karlović & Sučić, 2017).

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There are no available statistical data on the effects of identity checks or how many innocent people in Croatia have been stopped by police. However, at the European Society of Criminology 2020 conference, the results of research on police identity checks in Croatia in the territory of four police directorates (of a total of 21) were presented.2 The number of identity checks was proportionate to the number of citizens in those areas covering a specific police county administration. However, the research was conducted on a sample of identity checks performed in four county police administrations in the Republic of Croatia in the last 3 years, from 2017 to 2020.3 There was an evident reduction in the total number by year in each county administration per year. This trend was observed in all four police county administrations. For example, during this period, the Croatian police in these four county administrations conducted 128,251 identity checks in total. The great majority were males (118,688; 92.54%), with only 7.46% females (9563). Of the total number of persons checked, 32.58% had previously been checked by the police (32.24% males, 0.34% females) or had been named in at least one police record (Karlović et al., 2020). It has already been mentioned in the text that the Croatian police have increased the scope of their activities in terms of performing according to the community policing model by transitioning from the communist regime to a democratic political order. The focus of the police was on developing and maintaining cooperation with citizens, not only in situations where people are victims of criminal offenses but in terms of establishing cooperation with people who respect rules and laws and have no problems with the police. The police aimed to gain the trust of citizens and to involve citizens in the joint solution of local problems in particular, but also through such cooperation to collect some information that could be valuable for solving and detecting crimes that may occur but not   Online book of abstracts is available at: https://www.esc-eurocrim.org/images/esc/ files/e-conference_2020/Book_of_abstracts.pdf. 3  Data on identity checks of persons by police administration in the Republic of Croatia are publicly published in security indicators bulletins on the official website of the Ministry of Interior (https://mup.gov.hr/statistika-228/228). 2

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reported to the police or has not yet been detected. In Croatia, there is no continuity in measuring citizens’ trust in police on the national representative sample, but the last such research was conducted by our Institute of Social Research Ivo Pilar, 6 years ago.4 The trend of trust in the institution is quite stable over the years. So, the police are trying to first work on prevention and show that the police can help citizens live in a better and more secure environment, thus building trust, which will eventually lead to an increase in positive interaction between Police and the citizens. Given the low crime rate in Croatia of only 1306 (the number of criminal acts for which an official procedure is initiated) per 100,000 inhabitants, placing Croatia in the category of a safe country, with only about 40 murders and 1000 robberies per year (MUP, 2021), the primary thesis is that police most often stop innocent people. This has been noted as a similar problem as a stimulus for change in other countries (Pearson & Rowe, 2020: 9). Stopping innocent people usually creates a negative impression, which makes this police power a potential problem (Delsol & Shiner, 2015), though the presence of other social preconditions may be required to spark controversy. Structured interviews with police officials show that former police administrators do not consider this police power to be a serious act impinging on civil rights (Karas, 2019). It would be worthwhile conducting an empirical study about the experiences and opinions of citizens concerning these identity checks, though it is certain that this would also be associated with the manner and approach of police officers. However, most attention given by academics, practitioners, and legislative initiatives in Croatia has been focused on more serious investigative actions that are perceived as highly sensitive for fundamental civil rights, even though they are rarely implemented in practice. Post-communist systems have a specific public perception due to the decades of a repressive socialist system that had significantly more severe measures at its disposal. Therefore, some citizens can be less sensitive to these police powers and may not perceive them to be serious restrictions to fundamental civil rights.

 https://barometar.pilar.hr/en/results-2016/trust-in-institutions.html.

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3.4 A Review of Other Public Sources on Identity Verification Similarities to Neighbouring Post-Communist States The 2001 legislative amendment in Croatia influenced changes in legislation in the neighbouring states with which Croatia was in a federation up until 1990. The Serbian 2005 Police Act includes Article 42, which lists 10 bases for identity checks which are nearly identical to the 2001 Croatian Act, while in 2016, a new basis was added in Article 75 that was identical to the eleventh basis added to the Croatian Act in 2009. Legislative expansion is also seen in Article 11 of the Bosnia and Herzegovina Police Act from 2004, which contains six bases that are nearly identical to the 2001 Croatian Police Act. Nearly identical eight bases for these powers are also found in the Slovenian Police Act of 2009 (Article 40). Such trends indicate that the changes in the Croatian system was assessed to be a good example to follow in the legislatures in the neighbouring post-communist states. There are also similarities with neighbouring states in the lack of association between crime and race based on skin colour, as is typical in certain Western states (Bowling & Phillips, 2002: 18). In common with the neighbouring states, minorities and nationalities do not differ in terms of physical appearance (the whiteness of Eastern Europe). Eastern European states have highly homogenous population structures due to the absence of a colonial past and due to their lack of attractiveness for immigration during the communist totalitarian regime of the twentieth century (Imre, 2016). Were the population structure similar to those in certain Western states, it is possible to assume that similar issues in racial profiling in police actions could be registered here as well.

Academic and Professional Literature A review of the academic and expert literature established that no particular issues were published concerning the power to stop and verify citizen identity during these three decades. Several news articles were

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published addressing specific aspects of these police powers (Kalem, 2011; Karas & Pejaković-Đipić, 2019). In comparison with other policing topics or criminal investigation activities, this activity has a very low level of academic interest in Croatia. Not even the key changes from 2001 were accompanied by significant commentary. A search of the database of national university libraries in neighbouring countries also found no specific publications dealing exclusively with police stops and identity checks. A search of the Slovenian database revealed several published articles in journals (Žaberl, 2002; Brenk, 2009), while searches of the national libraries and university databases in Serbia and Bosnia and Herzegovina did not identify any specific publications on identity checks. This could indicate the low importance of these powers in Croatia and the neighbouring states.

Higher Instance Court Practice During these three decades, the court practice showed no contested areas that would represent a need for change in the police identity check as a public issue. There are no known decisions of the Croatian Constitutional Court or the Supreme Court in which this part of the legal provisions or police actions were highlighted as irregular. There are no cases against Croatia before the European Court of Human Rights concerning the issue of powers to check citizens’ identity (Karas & Pejaković-Đipić, 2019). There are also no such identified cases against the neighbouring states.

An Overview of Media Content The media are interested in policing, especially when the police make mistakes. However, the media, especially professional investigative journalists, also report good and humane policing activities. An overview of the media content can provide a comparison of whether there is an association between a publicly debated problem and solutions aimed at reforming problem issues. For this chapter, online versions of three printed media in Croatia that has been the most widely read for the

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past 20 years were reviewed. Three daily papers were selected: Jutarnji list, Večernji list, and 24sata, and three national weeklies: Globus, Nacional, and Express. The results indicated that the topic of identity checks as a police power has an extremely low presence in the media. Only 26 articles featured this police power as a central topic during this entire period. The event with the highest media coverage was the identity check of a journalist when police officers arrived at her workplace and demanded she shows her identification at the request of a person who intended to file a defamation lawsuit against her. That person, in the role of a private prosecutor, was a politician and that fact attracted even more public attention. In this example, we can in real life recognise the premises of the classic conflict perspective of studying the role of the police in society, according to which the police is an instrument in the hands of the powerful. However, although both actors, in this case, were representatives of powerful social institutions, the greater pressure from the general and expert public was on the actions of the police. This event, from 2019, launched a discussion on the manner of executing police powers to verify one’s identity at the request of a private applicant. We found 26 media articles in our overview that gave an account of the mentioned event. This news was covered for days after its revelation. Of the weeklies, only one reported on this case. In addition to the damaged party and the county prefect who filed the lawsuit, the media also published statements by the prime minister, several other ministers, the journalists’ association, a representative of the police union, the chief of police, and several persons who criticised this action. The journalist, whom the politician wanted to sue for defamation, turned to the ombudsman, who determined that the police had been treated unfairly when it comes to providing personal data for a private lawsuit. The police gave the journalist’s data to a representative who wanted to sue the journalist without waiting for the court to ask them to do so. To avoid legal uncertainty in terms of uneven treatment and possible misuse of data, police officers should check the identity of persons only if they physically find themselves in a situation where a person defames another who wants to file a private lawsuit. This was a focusing event that helped to raise this issue to the status of a public issue. The profile of the participants (journalists and politicians) in the public discussion indicates that this was an important

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social topic that became a public issue. As stated earlier in this chapter, the media reports resulted in a change to the legislative provision. The second topic based on its share in the analysis sample concerned an identity check that, according to the law, should have been delegated to community monitors (municipal forces).5 To establish violations in the field of environmental protection and about the care and keeping of pets and the like, it was proposed that community monitors should be authorised to check the identity of offenders of municipal bylaws. In the earlier 2003 Community Services Act, community monitors did not explicitly hold such power. They could check the identity only with the consent of the person (consent stops) or if the police started the procedure. We found six articles on this topic. This topic received greater prominence in the media than the previous topic. In one daily newspaper, it covered most of the front page. However, in reviewing the duration of the reports, there was no coverage after 2 days. Highlighting this topic could indicate the validity of this power to check identity if used for minor violations. These powers were retained within the Act and may currently be exercised by community monitors (municipal inspectors) in local communities. This indicates the political interest in the acceptance of this power. The profile of persons giving statements was somewhat lower than the previous topic. In media reports, participants in this discussion were the police union, ministers, mayors, law professors, and political party representatives. The readership data indicate that the topic of community monitors was read four times more often on the websites than the topic of the identity check of the journalist, with three times more comments given. This interest indicates the citizens’ sensitivity, which could be recognised as a possible objection to the execution of this new power of identity checks. However, following the entry of this new law into force, there were no longer any reports on the need to overthrow it, indicating that it was only temporarily a public issue. The third topic, with the smallest share of media coverage, concerned the regulation of the period for keeping data on identity checks. This  Community monitors or municipal monitors are not volunteers, but local government employees Zakon o komunalnom gospodarstvu, Official Gazzete No. 68/18, 110/18, 32/20. 5

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story was covered only by one daily newspaper in mid-February 2012. Statements were taken from non-governmental organisations on the need to shorten the period during which this personal data is kept. Article 26, paragraph 1, point 5 of the 2009 Police Affairs and Powers Act prescribes that the personal data of those persons whose identity was checked are kept for 5 years. That provision was not changed, regardless of the position of the non-governmental organisations, indicating that this did not ever become a public issue. Such an outcome was likely because the decision-­makers, in this case, deemed this period to be justified and necessary for police work. This issue has not resurfaced in the media since 2012, which also indicates that there was no context for the topic to become part of the public debate. Based on the reviewed articles, there are no media reports on how police execute these powers, on how citizens are selected for an identity check, nor are other situations described that would identify problems with the existing legal norms concerning those powers, or propose any new regulation. The role of these powers in the effective keeping of the peace and crime prevention has not been questioned.

 on-governmental Organisations, Minority N Organisations, and Political Parties For this chapter, the reports of two non-governmental organisations and the largest organisation of a minority were analysed. Certain results showed an overlap of topics discussed above in the media coverage analysis. The Centar za mirovne studije (Centre for Peace Studies) is a nongovernmental organisation with the widest publication activities in the field of civil rights, with more than 130 books covering different aspects of human rights. None of these volumes addresses the police power to check one’s identity. We examined all the available annual reports of these organisations (13 in total). None of these reports raised any issue concerning identity checks. Other police actions were specified, particularly the problematic handling of migrants (2020), asylum seekers (2019), the

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lack of civil supervision over the police (2015), and the like (CPS, 2016, 2020, 2021). Human Rights Watch raised concerns over the treatment of migrants, returns of minorities, and similar issues, but made no suggestions concerning the police power to perform identity checks. The second non-governmental organisation, Kuća ljudskih prava (House of Human Rights), also publishes an annual report on human rights. The events listed correspond to the results of the media analysis. Cases concerning identity checks were described, such as the bringing in of an intoxicated woman who refused to verify her identity in 2012 or comments that the police often check the identity of youths during late-night hours (HRH, 2013). These are the only known cases of identity checks described as problematic in publications at all. In 2012, the above-­ mentioned organisations issued recommendations concerning the draft Police Act. Regarding identity checks, they raised a complaint regarding keeping personal data for 5 years. This issue, however, did not become a public issue, as we have already noted. The Srpsko narodno vijeće (SNC; Serbian National Council) is Croatia’s most influential minority organisation. Some members of the SNC are enrolled in politics. One of them is a vice-president of the Croatian government, and, in earlier governments, they were in a coalition with the ruling party. In this way, it can directly act as an executive factor in creating a policy stream if reform is required. For this chapter, all the annual reports of the SNV were analysed. The only mention of identity checks was found in the 2015 report when, after an attack by football fans on a group of theatre-goers, the police only checked the identity of a minority member, even though he was a victim of the attack, and his name was later released to several websites (SNC, 2015). A complaint was raised that, given the circumstances, none of the attackers’ identities was checked. In other annual reports, this organisation specified the number of different types of police actions, mostly investigating specific events at the expense of minorities, property damage, or, for example, an attack of fans against Serbian Waterpolo players. None of the reports highlighted the issue of ethnic profiling by police while conducting identity checks.

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Programmes by the Main Political Parties An analysis of the election platform of the two largest political parties and their pre-electoral coalitions over the past two decades in the course of seven parliamentary elections shows that this police power was not once a subject of interest. In-depth analysis has been conducted on the most common topics covered in the election programmes, though this did not include this area of police work.

3.5 Public Ombudsman The public ombudsman is an independent body that submits reports to parliament and can seek an inquiry into any irregularities. The influence of this office is greater than other entities that simply raise a comment without any influence on government bodies. The frequency of reports of irregularities to the public ombudsman is higher than reports to non-­ governmental organisations, and analysing these data can be informative. In this study, 19 annual reports of the public ombudsman were analysed. In most reports (13; 68%), there were no complaints against the work of the police concerning identity checks. Six reports did raise the issue, usually concerning one case per year, while one report (2020) listed two cases.6 Of these two cases in 2020, the first concerned the verification of the identity of a minor who did not have any identification document on their person, so they were taken into the police station. The ombudsman considered this to be a questionable execution of the power to limit personal freedom. The second case concerned a person previously known to the police who claimed that the police had aggressively and tactlessly demanded they show their identification document. The Ombudsman concluded that there was “no legal basis for the identity check” and “no necessity for the application of police powers” (Ombudsman, 2020: 173). The report for 2019 listed the previously discussed case of verification of the journalist’s identity. An example of suspicion of racial discrimination was reported in 2015, with the case of an identity check on a person  Annual Ombudsman Reports are available at: www.ombudsman.hr/en/reports/.

6

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in a small town that houses an asylum centre. They complained that the police were excessively stopping asylum seekers based upon the colour of their skin. The policy justification for this was that asylum seekers are required to return to their residence by 10 p.m. and, if they are found outside after this hour by the police, the police then conduct additional identity checks. The ombudsman suggested the need to increase police education on discrimination, which can be considered part of a preventive approach concerning the practices of the executive government. The 2012 report listed the case of a person who refused to show their identity card. Force was used against them, resulting in bodily injury. The 2013 report listed a case of an identity check of a homeless person who was penalised frequently with a misdemeanour, even though he was unable to take out an identity card due to his lack of a permanent address. The 2014 report listed one case relating to a person of colour who held that there were no grounds for police conduct against her. However, the report stated that it was not determined whether or not this was discriminatory conduct. No reforms or legislative amendments were proposed. Instead, the main proposals were for better education or inquiries into individual responsibility.

3.6 Police Education as a Universal Means of Sustaining Police Professionalism The message of this chapter is that police stops are not a topic of public concern in Croatia. However, the previous paragraph finished with the Ombudsman proposing better education for police officers. Croatian society is still a homogeneous society, primarily in the cultural aspect. However, considering the social changes and socio-political reasons for migration, it is reasonable to expect more significant cultural variations in Croatian society in future. Furthermore, continued formal police education prevents ethnocentrism, which must not be present among police officers who exercise police powers. Therefore, addressing the attitudes and prejudices of police officers, which may influence their actions, is possible and feasible only through education and training, primarily in

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the field of social psychology. Allport (1985, cited in Aronson et  al., 2005) defines social psychology as a scientific discipline that studies how other people’s actual or imagined presence affects our thoughts, feelings, and behaviour. Unlike other branches of psychology, it doesn’t analyse an individual’s personality as the exclusive cause of the behaviour. Instead, social psychology looks for possible reasons for human behaviour in the environment and in interactions with other people. As a universal human phenomenon, prejudice does not necessarily result in prejudiced behaviour, but it does significantly increase the chance of the same. It may be said that it is human to have prejudices, but what is problematic and ultimately unlawful is to act upon them because, in that case, discrimination occurs. A police officer who has not been educated to recognise and stop the effects of his prejudices on his behaviour is a big problem. He will potentially harm the individuals he encounters, his organisation, and society. Concerning the exercise of powers of verification and identification, this specifically means that a police officer may unjustifiably approach the verification of individuals who, those police believe, belong to a group of suspicious or dangerous individuals. These beliefs will not only affect the choice of individuals stopped but will also influence the way the police officer treats the individuals. At Police College in Zagreb, instruction in social psychology is delivered in several courses. In recent reorganisations and changes, the content of the former Social Psychology course was developed into several newly created courses, such as Police Psychology and Psychology in Criminal Investigations. Education on this topic is also delivered with the cooperation of the Police College Counselling Center and the Croatian Police Service for Specialisation and Professional Development. Professional education is also provided throughout the police system as part of various training courses and to different specialisms and management levels. Furthermore, protection and promotion of human rights are built into the curricula at all levels of police education conducted by the Police Academy (primary police education, professional development, and higher police education) to link legal norms and practical action.

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3.7 Instead of Conclusions Beyond the few cases discussed in this chapter, the police power of identity checks is not a public concern in Croatia. Democratic social values have been introduced into police legislation. The protection of human rights and dignity and the emphasis on building a security culture are part of police life and police education. Within this context, a precondition for police stops is a justified suspicion. The key legal amendments in Croatia over the past three decades concerning the power to perform identity checks introduced 10 legal grounds (2001) and regulated the conduct of a check at the request of a private plaintiff (2014 and 2019). Interestingly, high rates of police checks in Croatia have never initiated a public debate. Possible explanations are to be found in multiple factors, such as the different sensitivities of citizens after having lived in a repressive communist regime; the lack of discrimination against particular groups of citizens that would emphasise the issue; and general satisfaction with the levels of security overall. This chapter indicates that some regions of Europe can be differentiated from others by the social circumstances that contribute to assessing these powers as a public issue. Nevertheless, police training and education has begun to address issues of prejudice in recognition of the need to ensure that police powers are exercised in an appropriate manner.

References Annual Ombudsman (2020). Reports are available at: www.ombudsman.hr/en/ reports/ [09.01.2023]. Aronson, E., Wilson, T. D., & Akert, R. M. (2005). Socijalna psihologija. Mate. Bowling, B., & Phillips, C. (2002). Racism, crime and justice. Longman, Pearson Education. Brenk, N. (2009). Ugotavljanje identitete domnevnega storilca kaznivega dejanja s strani policije. Pravna praksa, 28(1), 10–12. Cajner Mraović, I., Faber, V., & Volarević, G. (2003). Strategija djelovanja Policija u zajednici. Ministarstvo unutarnjih poslova Republike Hrvatske.

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De Maillard, J., & Terpstra, J. (2021). Community policing in comparative perspective. Oxford Research Encyclopedia of Criminology. https://doi. org/10.1093/acrefore/9780190264079.013.615 Delsol, R., & Shiner, M. (2015). Stop and search: The anatomy of a police power. Springer. Dinić, B. (1973). Praktično postupanje pripadnika milicije u vršenju službe. Savezni sekretarijat za unutrašnje poslove. https://mup.gov.hr/UserDocsImages/2021/04/Covid%20i%20kriminalitet%20u%202020%20-­%20Komentar%20pokazatelja%20sigurnosti%20 u%20Republici%20Hrvatskoj.pdf. https://www.esc-­eurocrim.org/images/esc/files/e-­conference_2020/Book_of_ abstracts.pdf. Imre, A. (2016). Whiteness in post-socialist Eastern Europe: The time of the gypsies, the end of race. In A. J. Lopez (Ed.), Postcolonial studies (Postcolonial whiteness: A critical reader on race and empire) (pp.  297–315). SUNY Press. 2012. Kalem, D. (2011). Provjera identiteta osoba. Polic sigur, 20(1), 114–124. Karas, Ž., & Pejaković-Đipić, S. (2019). Stajališta Europskog suda za ljudska prava o policijskoj ovlasti provjere istovjetnosti osoba. Policija i sigurnost, 28(1/2019), 44–63. Karas, Ž. (2019). The perception of efficiency of police stops among police officers in Croatia, 19th annual conference of the European Society of Criminology, Ghent (p. 146). Karlović, R., & Sučić, I. (2017). Security as the basis behind community policing: Croatia’s community policing approach. In P.  Bayerl, R.  Karlović, B. Akhgar, & G. Markarian (Eds.), Community policing – a European perspective. Advanced sciences and technologies for security applications. Springer. https://doi.org/10.1007/978-­3-­319-­53396-­4_10 Karlović, R., Glavina Jelaš, I., Babić, J., Pačelat, J. (2020). Analysis of police identity checks in Croatia/EUROCRIM 2020 20th annual conference of the European Society of Criminology. Karlović, R., & Buchheit, F. (2013). Stavovi policijskih službenika o modelu koncepcijske određenosti uloge i organizacije policije. Policija i sigurnost, 22(1), 105–125. https://hrcak.srce.hr/105621 Krapac, D. (1999). Introductory statement. European Journal of Crime, Criminal Law and Criminal Justice, 7(4), 371. Mršić, Ž., (2011). Osnove sumnje – izvorište policijskih ovlasti. Hrvatska pravna revija, 11(4), 71–77.

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MUP. (2021). COVID i kriminalitet u 2020. Komentar pokazatelja sigurnosti u Republici Hrvatskoj. MUP. Pearson, G., & Rowe, M. (2020). Police street powers and criminal justice: Regulation and discretion in a time of change. Bloomsbury Publishing. Pino, N. W., & Wiatrowski, M. D. (2006). Democratic policing in transitional and developing countries. Ashgate. Žaberl, M. (2002). Ugotavljanje identitete in identifikacijski postopek. Pravna praksa, 21(6). Uildriks, N.  A., & Van Reenen, P. (2003). Policing post-communist societies: Police-public violence, democratic policing and human rights. Intersentia. Proceedings. (1994). The functions of the police in a democratic society. Zagreb. MOI. (2007–2018). Annual overview of security indicators (Pregled sigurnosnih pokazatelja). Ministry of Interior of Croatia. https://mup.gov.hr/pristup-­ informacijama-­16/statistika-­228/statistika-­mup-­a-­i-­bilteni-­o-­sigurnosti-­ cestovnog-­prometa/283233. 1 September 2021. CPS. (2016, 2020, 2021). Center for peace studies annual report. CPS, https:// www.cms.hr/en. 9 January 2023. HRH. (2013). Human rights in Croatia - an overview of the situation in 2013. Human Rights House, https://www.kucaljudskihprava.hr/en/ 9 January 2023. SNC. (2015). Violence and intolerance against Serbs in 2014. Serbian National Council.

4 Police Stops in Hungary: In the Light of Public Debates and Media Coverage Valéria Kiss, István Hoffman, and Fruzsina R. Tóth

4.1 Introduction The police model of Hungary has been influenced by several systems. The model can be considered as a Continental one, in that it mainly follows patterns of the German system, but with significant French influence.

V. Kiss (*) • F. R. Tóth Center for Theory of Law and Society, Eötvös Loránd University, Budapest, Hungary e-mail: [email protected]; [email protected] I. Hoffman Department of Administrative Law, Eötvös Loránd University, Budapest, Hungary Centre for Social Sciences, Institute for Legal Studies, Budapest, Hungary Maria Curie-Skłodowska University, Lublin, Poland Faculty of Law and Administration, Lublin, Poland e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 J. de Maillard et al. (eds.), The Politicization of Police Stops in Europe, Palgrave’s Critical Policing Studies, https://doi.org/10.1007/978-3-031-35125-9_4

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Before World War I, Hungary was part of the Austro-Hungarian monarchy and its police system followed the Austro-German pattern. After World War I, Hungary became an independent country, but the German influence remained, and it became even more important during the 1930s. During World War II, the Hungarian police system became an instrument of an increasingly far-right regime and, later, of pro-German war efforts. These former patterns were fully transformed after World War II. However, there was a brief democratic period between 1945 and 1947/1948, when Hungary became a Soviet-type communist dictatorship. That dictatorship cannot be treated as a monolithic period. The first phase can be considered as a pure Stalinist period, but the Hungarian Revolution in 1956 changed the environment. After the brutal oppression of this Revolution, the dictatorial regime ‘eased’—it was partly related to the transformation (‘softening’) of the Hungarian Communist regime, and it was partly linked to détente during the 1970s. Police stops were significantly influenced by these events. The application of police stops increased, and it was a sign of the ‘easing’ of repression (because direct arrest decreased). Therefore, regulation of police stops became an important issue during the Democratic Transition. With the fall of the Soviet system, democratization and the introduction of the rule of law influenced the field of policing. However, several former routines and several controversial practices remained. Therefore, during the 1990s and 2000s, police stops were part of public debates and a subject of some dispute, not only among the legislature and political actors but also in the Hungarian press. These debates have reemerged during the COVID-19 pandemic, because the pandemic restrictions have been largely enforced by police stops. Police stop and search is the most common form of police action which a citizen is likely to encounter. It is the resulting interaction that mostly shapes the relationship between society and the police. Thus, the quality of this relationship is a fundamental determinant of the development of trust in the police or the actual democratization of democratically regulated institutions. In other words, police work can be a fundamental indicator of how democratic a state’s toolkit is. Ferenc Krémer claims that the police as a permanent system of institutions affects society as a whole, and itself creates a reality in which public security, defence and democracy are constructed (Krémer, 2011).

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Academic and civil discourse periodically addresses the undemocratic nature of the practice of detention for a purpose of a search. One of the most serious allegations made by these actors is that the Hungarian system of stop and search is severely discriminatory and particularly affects various minority groups, such as Roma and homeless people (Kádár & Pap, 2009). The discriminatory police stop system is also under scrutiny from human rights NGOs’ work and discourse between the representatives of the civil and academic spheres are defined by this human rights approach. Both participants of the discussion agree that profiling is discriminatory and against Hungarian and international law (Kádár & Pap, 2009). It seems there is consensus among academic and civil society actors on this point. Because of the complexity of the phenomena, which has been significantly influenced by the current political situation (the governing parties have a very strong, qualified—two-third—majority in the Parliament, therefore the public spaces and the public assemblies are important tools of politics in Hungary), we will analyse the history of police stops. Our analysis is partly focused on the regulatory issues, but the practice will also be examined in this chapter. As we have mentioned, police stops have been important issues of public debate, especially during the transformation of the Hungarian political and legal system after the turn of the millennium. To show the major elements of the public debates, we will analyse police stops in the media. In the course of the research, we examined articles containing the keyword ‘stop and search’ published between 2000 and 2019  in the Hungary section of Index and Magyar Nemzet Online news sites. According to the 2018 survey of the Mérték Médiaelemző Műhely, Index was the leading Hungarian news portal for those who read political news at least once a week (Mérték, 2018: 35). Also, it was a stable player in the troubled scene of Hungarian online media in the period under review and “one of the most prominent journalistic workshops in the last two decades, where numerous important fact-finding articles were published” (Urbán, 2016: 10). Furthermore, based on consumption patterns, Index was overwhelmingly read by voters from opposition parties (outside Jobbik, the far-right parliamentary party in Hungary), and it is considered a centrist-liberal news site. In order to provide a more balanced picture, we sought to find a news portal that is

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used more frequently by pro-government readers that could be included in the analysis. In addition to Index, the Origo news site also plays a leading role, and this medium currently belongs to the pro-government press (Mérték, 2018: 37). However, this has only been the case since a change of ownership in 2016 (Urbán, 2016: 10), and no other significant news portal is considered rightist (Mérték, 2018: 37). In the end, our choice fell on the Magyar Nemzet Online news site, mainly due to the prestige of the right-wing political daily behind it (Magyar Nemzet) and because it played a more important role in online press in a significant part of the period under review (Mérték, 2018: 35). At the same time, only articles after 2007 appeared in the Magyar Nemzet Online archive for search, which partly explains the lower number of processed articles. As the first part of our analysis, the evolution of the modern Hungarian police system will be analysed, as an examination of the historical background of the current situation. Secondly, the legislation and practice of the police stops will be reviewed by policy-based points. As an extension of the policy-based examination a media survey-based chapter will show the impact of police stops and search on Hungarian public debate issues. Our conclusions are based on the results of these reviews.

4.2 Evolution of the Modern Hungarian Police System Evolution of the Police System Before World War I The state police were first organized by the Habsburg Empire after the failed Hungarian revolution of 1848/1849. The jurisdiction of the Austrian Gendarmerie was extended to the territories of the Kingdom of Hungary. Later, this state police was dissolved in Hungary, and a system of municipal policing was restored. A new Hungarian state police force was established by Act III of 1881 on the public security service. With the establishment of the state police, the former municipal police bodies were mainly dissolved and succeeded by state police bodies (Mezey & Gosztonyi, 2020: 360–362). These forces were organized on the French pattern: it was a police body and an armed force, and it was directed

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jointly by the Minister of Interior and by the Minister of Defence (Fijnaut, 2017: 75–76). Because the Kingdom of Hungary was part of the Austro-Hungarian Monarchy, and the Austrian model was deemed effective, the Austrian version of the French model was implemented by the Hungarian legislation (Vedó, 2015: 171). As part of this, police stop and search was regulated by law, but it was not regulated by an Act of the Parliament. Instead, the general rules on police stops were regulated by the staff regulations of the Gendarmerie (which was a joint instruction of the Minister of Interior and the Minister of Defence). The regulation was short and general.

Interwar Period and World War II During World War I, the political situation and the role of the police was transformed. Policing became part of the war effort and, after the collapse of the Austro-Hungarian Empire and the unrest following its fall, the role of the police bodies increased. As a result, the right to police stops was strengthened after World War I, and legal regulations and limitations decreased. They could check people who were under the supervision of police bodies. Stops and searches by the gendarmerie was a political tool for the control of critics of the regime during the interwar period (Ignácz, 2018). Therefore, the role of the gendarmerie became more controversial. However, this political role has already been part of their function in the Austro-Hungarian empire, when they were part of the fight against the movements of farmers and ethnic minorities. During World War II, the gendarmerie had an important role in the suppression of the opposition and, in 1944, they were key players in the Hungarian Holocaust. They executed the orders for the deportation of Hungarian Jews (Molnár, 2017).

 fter World War II: The Age of Soviet-Style A Police Model The post-war period was dominated by the communist style of policing. The Gendarmerie was considered a ‘fascist organisation’ and was dissolved by Government Decree No. 1690/1945 (published on April 30th).

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Hungary was occupied by the Red Army at the end of World War II. However, in 1945, a democratic (coalition) government was formed, and free elections were held, but the sovereignty of Hungary remained restricted. The Hungarian Communist Party was backed by the Soviet government and by the Red Army to gain decisive influence in police forces (Cornelius, 2011: 400–402). Thus, the new police body, the unified state police, was dominated by the communist party, and it became an important player in the ‘Sovietization’ process in Hungary. The police and its procedures were not regulated by an Act. Because of the Soviet influence during this brief democratic period, the Soviet policing model was dominant in Hungary. Hungarian democracy was transformed into a Soviet-type dictatorship between 1947 and 1949. In 1949, a new Soviet-type Constitution was passed (Act XX of 1949). The Constitution did not include any regulation of the police system, and no Acts were passed on the subject. Rather, the rules on policing were regulated by government and ministerial decrees. However, there was a unified state police system, but—just as in the Soviet Union—the state security authorities (the State Protection Authority, Államvédelmi Hatóság, ÁVH) had broad competencies. The regulation was changed after the death of Stalin. As part of the Soviet bloc, the transformation of Soviet politics influenced the Hungarian situation as well. In Hungary, the first reforms of the Stalinist dictatorship were introduced by the first Imre Nagy government (1953–1955). At the end of this period, the rules on police bodies were regulated by a statutory decree (statutory decree No. 22 of 1955). As part of destalinization, it regulated the right of the police to stop and search people. Several legal restrictions of the powers of the police bodies were introduced. Because of the general regulation, the legal framework of police stop and search was not changed after the 1956 Revolution. However, the police authorities were transformed: the State Protection Authority was dissolved in 1956. Special police forces were established after the repression of the Revolution, which were then terminated after the consolidation of the new communist regime in the early 1960s. Later in that decade, the new regime started to ‘ease’ the dictatorship and a ‘softer’ dictatorship emerged (the so-called Goulash Communism). The

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‘softening’ of the Communist dictatorship increased during the late 1960s and early 1970s as a result of the events of 1968, which impacted even the Eastern bloc. As part of the reform, legal guarantees were strengthened and the number of decisions which could be reviewed by the courts were increased (Schmidt, 2016: 11–12; Tökés, 1996: 82–83). Even the regulation of police forces and their procedures were amended by these reforms. A new statutory decree was passed in 1974 on national security. The right of police bodies to stop and search people was not regulated by this statutory act but by the implementing government decree. The grounds for stop and search were restricted, because only the identification of a person and the suspicion of committing a crime, misdemeanour or petty offence were grounds. However, remedies were not institutionalized. Therefore, police activities remained unchecked. Police stops became an important tool in the political field, as well. They were used against demonstrations—but the main reason for its use was traffic control. Similarly, the police stop became an important tool for the ‘harassment’ of the known activists of the opposition movements.

4.3 Democratic Transition: The 2090s The authoritarian model of government was changed during the Democratic Transition in Hungary. As we have mentioned earlier, Acts were not passed on policing during the communist regime, only statutory decrees of the Presidency of the People’s Republic. The Constitution of the Democratic Transition stated that an Act of Parliament on the police shall be passed, and this act shall be passed by a two-third majority of the Members of Parliament. Act XXXIV on the police was passed in 1994. The system of state police remained, but democratic and controlled policing was established. Stop and search and identity (ID) checks were regulated by this Act. The grounds for stop and search and for ID checks were restricted, and the external audit and control of these activities have been developed. The decisions on stop and search and on ID checks could be subject to legal remedy after the regulation of this Act, because the decisions

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resulting from the internal remedies were considered to be administrative decisions. Administrative decisions can be challenged in Hungary— before the administrative branches of the ordinary courts. The Hungarian police are first of all an administrative body—which is directed by the Government of Hungary after the constitutional regulation—while also being part of the criminal justice system. Its administrative roles are diverse: they are responsible for the protection of public order and safety; they have been responsible for the border control since 2007; and a Directorate of the Police has been responsible for the immigration administration. The framework of the police competences has been determined by the fundamental (human) rights guaranteed by the Hungarian constitutional rules. These regulations define that “[e]veryone shall have the right to have his or her affairs handled impartially, fairly and within a reasonable time by the authorities. Authorities shall be obliged to state the reasons for their decisions, as provided for by an Act”. The recent practice and interpretation of the Hungarian Constitutional Court—which is based on the former practice which evolved during the 1990s—states that the right to liberty and security of a person can be restricted only if it is necessary and proportionate [Res. No. 20/2013. (published 19th July) of the Constitutional Court]. The practice on the necessity and proportionality of the restriction of these rights primarily follows the practice of the ECHR (Pozsár-Szentmiklósy, 2016: 123–127). The practice of police stops transformed slowly. The new acts were just the beginning of the change. As we have mentioned, the former regulation—which was originally introduced in 1974—allowed officers to check the ID of citizens and, for these ID checks, the legal guarantees were weaker and a remedy against these decisions was not institutionalized. The requirement for the justification of the police stops evolved slowly during the 1990s (Kádár et al., 2008). These changes have been mainly forced by judicial reviews of police decisions on stop and search and ID checks. Although the regulatory model which was established in 1994 prevails, the practice has been only partially transformed (Finszter, 2001, 133–138).

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4.4 Reforms of the Millennia and Transformations of the 2010s  eneral Questions and Debates on Police and ID G Checks After the Millennia The system of police stop and search and ID checks remained an important issue in the police reforms of the new millennium. The first disputes arose about the right of quasi-policing bodies, such as municipal public space surveillance (similar to municipal police in some European countries), to stop and search. In 1999, the right to stop and search was guaranteed for these municipal bodies by an Act of the Parliament. The justification for stops by the municipal public space surveillance was another important issue. Originally, these bodies were considered as authorities which have responsibility for the protection of important municipal assets, the municipal public spaces and areas. Their powers and duties were based on the nemo plus iuris principle and were based strongly on private law. Therefore, the tools and powers of these municipal bodies were originally very limited, but it was extended during 2010/2011. By the reforms of 2010/11, these authorities became a municipal quasi-­ police body (Hoffman & Fazekas, 2017: 550–552). Therefore, their responsibilities have been increased. However, the public nature of their duties has been strengthened, but the private nature of their competencies partly remains. One of the competencies of these bodies is to maintain the order of the municipal community (public) transport systems. Thus, these bodies can stop people on community transport vehicles to prevent travelling without tickets. It was debated bitterly, because the private interests of the municipal companies were defended by a public body, which has been interpreted as a controversial element of the new system. Another important turning point was a series of demonstrations against the Gyurcsány Government. In 2006, the prime minister admitted, in a closed meeting of the governing party’s parliamentary group, that he had lied during the election campaign. The speech was leaked and led to a major wave of protests. Police stops were widely used to check up

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on the participants in the demonstrations and the police used violence in several cases. The police violence was shocking because no such incidents had taken place since the period of Democratic Transition. These events received considerable media attention (which we will present in more detail later in this chapter). After these cases, the external audit of police stops was strengthened by the establishment of the Independent Police Complaint Panel. The main aim of this reform was to strengthen the judicial and civil control over police bodies to avoid similar events. After the millennium, stop and search and ID checks have remained a common tool of the police. Although their number has decreased in the last decade, it remains high at almost one million executed each year (around 100 for 1000 inhabitants) (see Fig. 4.1). The decrease of these measures has been significant, and it was related to reforms of the system of sanctions (penalties) for (petty) traffic offences. In 2012, a new act on petty offences was passed in Hungary, transforming petty traffic offences. Number of ID checks of the Hungarian Police (20102018) 2 500 000

2 000 000

1 904 943 1 699 454

1 500 000

1 633 478

1 487 770 1 121 465

1 000 000

1 016 548 1 059 557

1 133 390 961 884

500 000

0

2010

2011

2012

2013

2014

2015

2016

2017

2018

Fig. 4.1  Number of ID checks by the Hungarian Police (2010–2018). Source: Statistics of the activities on protecting public order (Hungarian Police) (http:// www.police.hu/sites/default/files/Kozrendvedelem%20HK%202018.%2012.pdf, downloaded on 22nd August 2021)

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The preferred sanction of such offences became administrative fines of the keeper of the vehicle, and the objective liability solutions in the area of traffic petty offences have been strengthened. It is clear that a significant number of the police stop and search and ID checks have been related to traffic offences. The former model was based on a subjective liability system, which was based on the identification of the actual offender. The new system has been based on the liability of the keeper of the vehicle. Therefore, the identification of the driver is not required. The number of petty traffic offence cases decreased (and the number of administrative fines increased). Thus, the former significant number of the simplified procedure of ID checks and the detailed regulated stop and search dropped significantly (Hoffman, 2020: 46–48). The ID checks and the police stop and search activities are classified by legislation as administrative tools that are not governed by criminal procedures. Their main purpose is to protect the public order, and they have special regulations. These measures are interpreted by the Hungarian jurisprudence as measures of the authorities (Fazekas, 2017: 99–100). These measures are not governed by the Act CL of 2016 on General Public Administration Procedure (hereinafter: Ákr.), but they are regulated by special acts and their implementing regulations. Thus, the major rules on procedure for ID checks are contained in the above-mentioned special acts, especially in the Act on Police. The detailed procedural rules of the police are regulated by the implementing regulation of the Act XXXIV of 1994 on Police, by the Decree of the Minister of Interior No. 30/2011 (published on 22nd September) on the Terms of Service of the Hungarian Police. The Terms of Service state that, first of all, the police officer should identify himself or herself as a police officer (they shall have their identity number and police ID card) and should inform the given person of the measure and it should be justified and explained. The police officer can check the ID of the given person after giving this identification, information and justification. The police officer should be polite, but he or she can use force if the given person is resistant to the measure. The use of force should be proportional. Stop and search, ID checks and the data of the controlled person should be reported. A so-called certificate for a stop and search or ID check should be submitted as the report of the police officer. Thus, every police officer should report an ID check

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and submit an internal report, which is the basis of the statistical data presented above. There is no appeal against the measures taken by the police officer, and the decision on the stop and search and ID check should be implemented immediately. Racial (ethnic) profiling and anti-discrimination issues were debated mainly by the experts (academics and other experts of the ‘watchdog’ NGOs) during that period, but—as will be seen later—it became a subject of debate mainly after the early 2000s (Tóth et al., 2009; Pap, 2015). Ethnic profiling is a concept that encompasses the entire law enforcement process, so the investigation of it is unavoidable (Pap, 2012). This occurs when the police base their actions on ethnicity—or other distinctive signs, such as poverty or religion—instead of an individual’s conduct or other objective evidence (Pap, 2012). Usually, the concept refers to ethnic or religious minorities, but ethnic profiling can be applied in all cases where the people subjected to law enforcement measures belong to a marginalized minority, such as homeless persons. These findings—that police stops are ineffective, arbitrary and discriminatory—have dominated academic and civil society discourse in this area ever since. Meanwhile, the practice remains unchanged. András László Pap and Bori Simonovits—who have been researchers of the Eötvös Loránd University (Budapest) and the Centre for Social Sciences of the Hungarian national research network—drew attention to this issue in 2006. This research was debated by Hungarian academics, but it has had limited impact on policy-­making issues. They pointed out that this kind of law enforcement is detrimental to marginalized social groups. The reasons for discrimination are to be found in the internal structural problems of the police, which were described in detail in the first part of their study. At the same time, discriminatory practices reduce the chances that police stop and search can actually fulfil its purpose and systematically detect potential perpetrators (Pap & Simonovits, 2006), In research in 2005–2006, Pap and Simonovits examined how discriminatory police stops were. The results of their questionnaire-based research (which was based on a representative survey with 1000 respondents), indicated that people, mostly men, were stopped by police mainly for the purpose of traffic control. Among the non-traffic police stops—around a club or during a walk— Roma people were over-represented (Pap & Simonovits 2006). Thus, the

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main features of the racial profiling of the Hungarian police forces were emphasized by an article based on empirical research. Perhaps one of the most important actors in this debate is one of the most important ‘watchdog’ NGOs, the Hungarian Helsinki Committee, which has been particularly concerned with the role of the police in Hungarian society. In a 2008 study, the Committee made several serious findings in this regard. In their research, the practice of stop and search was examined over a period of six months in three police stations. During this period, 36,939 police stops were made (Kádár & Körner, 2008). As we have mentioned earlier, the police stop (and ID checks) as measures of authorities should be justified, because they can only be applied if certain conditions have been met. The Commission found that these stops were ineffective, as no further action was taken following nearly 80% of stops and, in the vast majority of cases (64%), the police officers involved could not state the reason for the measure. In addition, the research showed that the Roma population were over-represented among the people stopped. Twenty-two per cent of the sample were of Roma origin, compared to a general proportion of around 6.5% in Hungarian society during this period (Kádár & Körner, 2008).

 ase Studies on Racial Profiling of Police Forces C in Hungary After the Millennia In the following sections, we will discuss two major topics of debate on racial (ethnic) and social profiling. One is the example of harassment certificates concerning homeless people, and the other is the example of police stops concerning Roma people. On the one hand, both cases are a great example of the police stop procedure becoming a discriminatory system. On the other hand, examining both cases reveals the difficulties of proof because the measures appear legal, but we should examine them further to find patterns of institutional discrimination. In 2012, in Rimóc—a small village in Hungary—it was noticed that petty offence fines for lack of mandatory accessories for bicycles (e.g. bells, lights and reflectors) were almost exclusively imposed on Roma people in the village, although the bicycles used by non-Roma citizens were not

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significantly better equipped. They turned to the Equal Treatment Authority and, later, the Hungarian Helsinki Committee investigated the case (‘actio popularis’ litigation). The Authority launched an ex officio investigation. Statistically analysing the documentation of the fines, the Hungarian Helsinki Committee demonstrated that, whereas the proportion of Roma in the village population was about 25%, out of 36 fines imposed for lack of accessories, 35 were imposed on persons who (based on their name, mother’s name and/or address) were likely to be of Roma origin. This means 97% of people fined for these offences in the settlement were Roma. By visiting the village and taking photos, and through other means, it could also be demonstrated that most bicycles in the area did not meet the requirements. Thus, it was unlikely that only Roma cyclists had committed transgressions in this regard. Finally, the procedure ended with an agreement between the Nógrád County Police Headquarters and the Hungarian Helsinki Committee in 2013, which was approved by the Equal Treatment Authority. (The agreement is a so-­ called settlement, which is an arrangement sanctioned by the authority, and therefore, it has the force of the decision of the authority (Forgács, 2018)). The police have—among other things—undertaken to provide more detailed education and training to police officers on the legislation and to organize awareness-raising training for the police officers concerned. From 2018, homelessness became a petty offence. According to the research of City is for All (A Város Mindenkié), the practice of police stops against the homeless and the poor is disproportionate and lacks objective grounds. Research has shown that homeless people have to identify themselves at least twice in a month, while the proportion of police stops among other citizens is significantly lower. The City is for All emphasized that, in many cases, homeless people were stopped by the police during public food distribution or in the area of social or health care facilities without any sign of offence. This police practice is discriminatory and does not meet the procedural requirements. Usually, the police fail to inform the homeless citizens about their rights or the reason for the stop. The Hungarian Helsinki Committee—based on City is For All’s research—turned to the Equal Treatment Authority (by ‘actio popularis’ litigation). The Hungarian Helsinki Committee accused the Hungarian

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Police of discriminatory practices. The procedure of the Equal Treatment Authority ended with an agreement between the Committee and the Hungarian Police Headquarters which was approved by the Equal Treatment Authority. This settlement has a similar content to the agreement between the Nógrád County Police Headquarters and the Hungarian Helsinki Committee.

 ebates on ID Checks, Stops and Searches: Debates D in the Scientific Discourse and Media Coverage of Police Stops and Search As an analysis of the conceptualization of police stops, in the next part we would like to examine the media coverage of this topic in Hungary, because it shows the major elements of the debates on that institution in the Hungarian public discourse. First of all, we would like to analyse the professional and academic background and environment of the public debates on stop and search. In order to understand the views of state actors, we examined the frequency and content of academic articles analysing police stop and search practices published in the last five years in the Journal of Home Affairs (Belügyi Szemle). The Journal of Home Affairs is a scientific journal on law enforcement and crime prevention published by the Hungarian Ministry of the Interior. We chose this journal because we assumed that it is the one that can best address the views of the various actors in the state service. That is, we thought that it is here that we would find opinions that differ from the academic discourse in sociology and public policy. We grouped the studies according to three criteria. One was whether the police justification appeared in the text in any way, however superficially. The second was whether the focus was not on the justification of the police stop and search, but the article has several remarks on it, and the third was whether the study was explicitly about it. Out of a total of 60 issues in the 5 volumes—12 per volume—12 mention police stops, mostly in the context of an investigative act, in a descriptive way, without any reflection. We found one study where the main focus is not stop and search. However, the author discusses it at length in connection with the issue in focus.

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Only one focused on police stop and search. Both of the latter two papers go back to the findings of the Helsinki Commission, which we will discuss later (Fig. 4.2). We have only examined one scientific journal in this analysis, so it is not possible to make any principled, definitive statements. However, the most striking trend that seems to emerge from this, and also the one which may be worthy of further investigation, is silence. The subject has hardly been touched upon in the last five years, despite the fact that it has been regularly discussed on the civil society and academic side and important precedent-setting judgements have been handed down in this period, which have had a significant impact on the system of law enforcement. In the next part of the study, we show how the topic of police stops has appeared in Hungarian public discourse in the last two decades. Police stops in police practice refers primarily to police checks of somebody’s identity carried out during roadside checks, but these cases are very rarely of news value. In the course of the research, we found that the topic of stop and search in the examined press outlets appeared in articles dealing with the general evaluation of the work of the police. An important group

Studies about Police Stops in Belügyi Szemle 2015-2019 14 12 10 8 6 4 2 0 Mentioned, but only in passing

Mentioned several times, in more complex terms

Fig. 4.2  Police stops in Belügyi Szemle 2015–2019

That’s what the study is about

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of articles specifically mentioning the certification of police stops are those in which the police check has a normalization purpose (Chappell, 1992), as we will elaborate on later. In addition, the issue of police stops was raised in connection with police abuse of power and, in contrast, violence against police officers. However, the most important group of cases were those which were connected to the political and public sphere, and the exercise of rights in this sphere, mainly police actions related to demonstrations, especially related to the demonstrations of 2006 and partly related to the COVID-19 lockdown demonstrations. In the course of the research, we examined in detail 276 articles published on Index and 130 articles published on Magyar Nemzet Online (hereinafter: MNO). Table  4.1 shows the other subjects related to the topic of police stops in the articles examined. The most important topic in which police stops were mentioned was the healthy functioning of the political and public spheres, mainly police measures related to demonstrations, police action related to the rural actions of far-right organizations or lack thereof. In addition, the topic of police action against politicians and journalists was important. Forty per cent of all articles examined dealt with police checks of protesters, political activists, politicians and journalists. The topic and the related subtopics appeared with roughly equal weight on the two news portals examined (Fig. 4.3). The next important topic in which stop and search appeared in the public discourse was that the police use the instrument of police identity checks to exercise general control over certain vulnerable social groups. In the research, this was called verification of normalization. However, Table 4.1  Key topics in the media (own edition) Stop and search related to political and public issues Normalization through stop and search Criminal news Articles specifically on the work of the police Police abuse of power Violence against police officers Other (Police abuses against Hungarians abroad)

Index

MNO

Total

113 59 40 29 26 9 3 1

50 21 19 11 7 7 10 5

163 80 59 40 33 16 13 6

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Fig. 4.3  Stop and search related to political and public issues (own edition)

unlike the previous theme, the weight of this topic strongly depends on the right or left orientation of the medium. Approximately 75% of all news related to this topic appeared on Index. Figure  4.4 shows which groups were identified as targets of police action. In the case of people belonging to these groups, stop and search was presented as a possibly harassing and discriminatory police tool. It can be seen that a few groups do not appear in the right-wing media at all (such as cyclists or dog owners), and topics that seem particularly important in the left-wing press also appear with much less weight on the other side. There is one exception to this: discriminatory police measures against Roma people appeared several more times on the right-wing Magyar Nemzet Online. This picture is further nuanced by the emergence of the topic of police violence against Hungarians abroad, which criticizes the police of another country for similar reasons. This, in turn, is almost exclusively a right-wing topic. The distribution of topics and mentions is illustrated in the figure below. The third largest group of articles mentioning stop and search is crime news. These are fundamentally positive about the work of the police and police checks as an integral part of that. These articles portray stop and search as an effective police tool, while also indirectly drawing the legitimate framework for its application. It is important to note that the contrast between media representation and reality is most striking here, as

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Fig. 4.4  Normalization through stop and search

most of the certifications take place as part of a roadside check, but such cases are relatively rarely presented by the examined news sites. Figure 4.5 shows the number and distribution of crime news stories mentioning police stops. The next topic on which stop and search was mentioned is the general evaluation of the work of the police, including the presentation of research findings. Among these articles, there is also the only one in this study that explicitly criticized the operationalization of stop and search. As the numbers show, this topic is also more important for the left-wing press. Figure  4.6 shows the topics in relation to which the stop and search appeared in this subject.

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Crime news stop and search on suspicion of a criminal offense leading to arrest road police inspection

11

25 13

5

terrorism

1

2

bomb threat

1

1

MNO Index

Fig. 4.5  Stop and search in crime news

Fig. 4.6  Articles specifically on the work of the police

The last important topic is police abuse of power. During the period under review, there were a number of issues that came to the forefront of public discourse. According to these discourses, stop and search, as a meeting point between citizens and police, carries the risk of violence and abuse (Fig. 4.7). At the same time, these encounters were also presented as risky for police officers. Violence against police officers is an important topic, and

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Fig. 4.7  Police abuse of power

these cases also started with or were related to police stops. In addition, stop and search was mentioned in some major crime reports. Based on this analysis, it can be stated that media representations of the topic are strongly determined by the political stance of the examined press. We assume that the academic discourse can somewhat neutralize these political biases or at least deepen our understanding of the practice and social effects of police stops.

4.5 Conclusion Police stops have a long tradition in the Hungarian system, which contains democratic and non-democratic factors at the same time. The concept of policing in Hungary has been based on the continental approach, therefore police stops (especially its major form, ID checks) are considered an administrative act. The procedure of police stops is mainly regulated by administrative rules. This administration-based model had several challenges, even after the Democratic Transition: the former ‘weapon’ against opposition movements needed to be transformed into a democratic institution which fit into the concept of rule of law.

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During the 1990s, legislation changed, but the practice changed only slowly. As can be seen, police stops have a limited profile in Hungarian public discourse, though it became more important during crises of the Hungarian political system, especially during mass demonstrations and movements, especially the demonstrations in 2006 and the demonstrations against government measures related to COVID-19 pandemic. A constant element of the debate on police stops has been the racial profiling of police stops, especially the racial profiling of the Roma minorities in Hungary. We examined both the scientific and civil discourse and important cases. The results show that law enforcement practices have long been criticized in civil and academic discourse, while the government-­ police side is characterized mainly by silence.

References Chappell, A.  L. (1992). Towards a sociological critique of the normalisation principle. Disability, Handicap and Society, 7(1), 35–51. https://doi. org/10.1080/02674649266780041 Cornelius, D. S. (2011). Hungary in world war II. Fordham University Press. Fazekas, M. (2017). A hatósági jogalkalmazó aktusok. In M.  Fazekas (Ed.), Közigazgatási jog. Általános rész III (pp. 97–100). ELTE Eötvös. Fijnaut, C. (2017). Reinforcing the European dimension of comparative police research. European police science and research Bulletin—contributions to the 2013 research and science conference (pp. 75–84). Finszter, G. (2001). The political changeover and the police. In A. Kádár (Ed.), Police in transition. Essays on police forces in transition countries (pp. 131–156). CEUPress. Forgács, A. (2018). Az egyezség jóváhagyása. In G.  Barabás, B.  Baranyi, & M.  Fazekas (Eds.), Kommentár az általános közigazgatási rendtartásról szóló törvényhez (pp. 552–557). Wolters Kluwer Hungary. Hoffman, I. (2020). Being present in the administrative criminal law: Regulation on presence of the Hungarian petty offence procedure. In G. Dimitrov & N. Bessa-Vilela (Eds.), Enhancing the right to be present (pp. 39–49). Lex localis Press. https://doi.org/10.4335/978-­961-­6842-­96-­9.39-­49 Hoffman, I., & Fazekas, J. (2017). The nature of the “Quasi”—municipal policing in Hungary with international and historical outlook. Lex localis—Journal of Local Self-Government, 15(3), 541–558.

4  Police Stops in Hungary: In the Light of Public Debates… 

95

Ignácz, K. (2018). Választói magatartás 1926-ban: A kormánypárt választási gépezetének működése és egy statisztikai felmérés tanulságai nyílt szavazású választókerületekben. Múltunk, 1, 87–134. Kádár, A., & Körner, J. (2008). Analysis of the research data. In F. Kőszeg & L. Králik (Eds.), Control(led) groups. Final report on the strategies for effective police stop and search (STEPSS) project. Hungarian Helsinki Committee (pp.  19–43). Hungarian Helsinki Committee. https://helsinki.hu/wp-­ content/uploads/MHB_STEPSS_US.pdf Kádár, A., & Pap, A. L. (2009). Police ethnic profiling in Hungary—an empirical research. Acta Juridica Hungarica Budapest, 50(3), 253–267. http://real. mtak.hu/44722/1/ajur.50.2009.3.2.pdf Kádár, A. K., Tóth, B., & Pap, A. L. (2008). Igazolt igazoltatás. Belügyi Szemle, 1, 106–132. Krémer, F. (2011). A biztonság intézménye és a rendőrség. Replika., 74(1), 205–230. Mérték Médiaelemző Műhely. (2018). A politikai tájékozódás forrásai Magyarországon. Trendek 2015–2018. Letöltve 2020. július 7-én a https:// mertek.eu/wp-­content/uploads/2018/11/A_politikai_tajekozodas_forrasai_ Magyarorszagon_2018.pdf webhelyről. Mezey, B., & Gosztonyi, G. (Eds.). (2020). Magyar alkotmánytörténet. Osiris. Molnár, J. (2017). Crime and punishment?—The Hungarian gendarmerie during and after the holocaust. S: I.M.O.N. Shoah: Intervention Methods Documentation, 4(1), 59–77. Pap, A.  L. (2015). Intézményes diszkrimináció és zaklatás. Belügyi Szemle, 2015(12), 80–105. Pap, A. L. (2012). A megfigyelés társadalmának proliferációjátol az etnikai profilakotáson át az állami felelősség kiszervezéséig. L’Harmattan Kiadó. Pap, A. L., & Simonovits, B. (2006). Ahogy a lakosság és ahogy a rendőr látja. Az igazoltatási gyakorlat tapasztalatai. Fundamentum, 10, 125–135. Schmidt, A. (2016). Challenges of democracy, party reshaping and party preferences. In B. Pająk-Patkowska & M. Rachwał (Eds.), Hungary and Poland in times of political transition. Selected issues (pp.  11–25). Faculty of Political Science and Journalism, Adam Mickiewicz University. Tóth, B., Pap, A. L., & Kádár, A. K. (2009). Diszkrimináció az igazoltatási gyakorlatban. Rendészeti Szemle, 1, 50–67. Tökés, R. (1996). Political transition and social transformation in Hungary. Revista CIDOB d’Afers Internacionals, 34–35, 79–101.

96 

V. Kiss et al.

Urbán, Á. (2016) Tulajdonváltozások a magyar médiapiacon. https://mertek.eu/ wp-­content/uploads/2016/11/mertek-­mediatulajdonosok_final.pdf, downloaded July 7th 2020. Vedó, A. (2015). A Magyar Királyi Csendőrség közbiztonsági tevékenységének megszervezése 1881-1918. Rendvédelem-történeti Füzetek, 25(43–46), 171–190.

Other Sources Act of XXXIV on the police, 19.§ (a) https://njt.hu/jogszabaly/199434-00-00.98. Agreement. (2011). (Hungarian Helsinki Committee—Nógrád County Police) EBH.865/2011. https://helsinki.hu/wp-content/uploads/EBH_eljaras_adatok.pdf. Agreement. (2015). (Hungarian Helsinki Committee—National Police Headquarters) EBH.298/2015. https://helsinki.hu/wp-­content/uploads/ EGYEZSÉG_VÉGLEGES.pdf.

5 Policing Migration, Protest, and Sovereignty: The Politicisation of Stop and Search Practices in Spain Cristina Fernández-Bessa, Manuel Maroto-Calatayud, and José A. Brandariz

5.1 Introduction Over the last few decades, police powers and practices, including stop and search interventions, have hardly raised public debate in Spain. Two specific reasons help to pinpoint why policing activities have been largely absent from public conversations. In the Spanish case, not only policing practices but also law and order issues generally have a minor impact on the political field. Manifesto Project data show that Spain ranked 27 out

All three authors jointly drew up the Introduction and the Concluding section. CFB prepared Sect. 5.2, while MMC and JAB took charge of Sects. 5.3 and 5.4, respectively.

C. Fernández-Bessa (*) • J. A. Brandariz (*) University of A Coruña, A Coruña, Spain e-mail: [email protected]; [email protected] M. Maroto-Calatayud Complutense University of Madrid, Madrid, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 J. de Maillard et al. (eds.), The Politicization of Police Stops in Europe, Palgrave’s Critical Policing Studies, https://doi.org/10.1007/978-3-031-35125-9_5

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of 28 EU member states in terms of the relevance given by political party manifestos to law and order topics in the 2010s (Volkens et al., 2021). In addition, police agencies are long proven to be one of the most valued public institutions by the Spanish public. Spanish Centre for Sociological Research (CIS) surveys conducted from 2006 to 2015 analysed institutional trust indicators. Based on a 0–10 scale, the police’s average score (5.84) ranked second—only below that of NGOs—out of 17 national institutions (www.analisis.cis.es/cisdb.jsp). In addition, standard Eurobarometer surveys carried out from 2000 to 2021 show that, on average, Spanish respondents (67 per cent) tend to trust the police significantly less than German and British respondents, but more than fellow Southern European neighbours, such as Greeks, Italians, Portuguese, and—especially recently—French (https://europa.eu/eurobarometer/surveys/browse/all/series/4961).1 Additionally, these Eurobarometer results show that trust in the police is clearly increasing over time. These data help to understand why the Spanish public has been hardly willing to check police powers and practices, which have rarely been a topic of mainstream political debate. The only significant exception in the last few decades of the twentieth century occurred in early 1992. By then, the Spanish parliament was discussing the draft of the 1992 Law for the Protection of Public Security (hereinafter LOPSC, for their initials in Spanish). This legislative act dramatically expanded police powers to carry out stop and search interventions and to trespass without a judicial warrant, by very vaguely defining the legal requirements to do so (Fernández Entralgo et al., 1993; Muñagorri Laguía, 1995). Specifically, the 1992 LOPSC introduced, for the first time in Spain, a general obligation to carry identification documents and show them at the request of the authorities, authorising the police to take anyone who failed to do so to a police station for identification purposes, provided it was necessary ‘to prevent the commission of a crime or misdemeanour, or to sanction  The data from the European Social Survey 2018 (see https://www.europeansocialsurvey.org/data/ download.html?r=9) unveil a slightly different scenario. The average assessment of the police in Spain (6.7 out of 10) is the 9th highest in Europe, slightly below Germany (7.1), in the same position as the UK, only marginally above Italy (6.6) and France (6.5), and a little further away from Portugal (6.2). 1

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an infraction’. At the same time, the 1992 LOPSC established new administrative infractions such as disobedience to authority, possession of drugs for personal consumption, organisation of demonstrations without prior notice to the authorities, and refusing to disperse an unauthorised gathering. Although progressive actors bitterly criticised this legal proposal, the Spanish government succeeded in constructing a hegemonic discourse that linked the new legal provisions to the then concerning issues of violent crime and drug abuse. However, the decades-long immunity from public scrutiny has been markedly challenged since the early 2010s. Against the backdrop of a series of financial and political crises, various events led some swathes of the Spanish public to call into question certain policing practices, including stop and search measures. Although the scant interest of Spanish political parties in law and order issues did not change dramatically in the last decade, some of these events have had an evident impact on the political field. This chapter aims to explore the events that led policing strategies to gain a certain traction in public conversations. The next three sections examine the three main episodes marking that shift. Finally, the concluding section analyses the main features of these specific debates on policing practices, as well as the forces contributing to the political and public salience of policing issues.

5.2 Policing Migration and Ethnic Minorities Racially biased policing is one of the most common practices leading to the politicisation of stop and search in many countries. NGO reports, surveys, and academic papers have extensively analysed this phenomenon in the United States and in many European countries (Amnesty International and Open Society Justice Initiative, 2013; Open Society Justice Initiative, 2007, 2013). Spain is not an exception in this regard (Arenas-García & García-España, 2022; Amnesty International, 2011; Añón et al., 2013, APDHA, 2016). In Spain, the use of racial or ethnic profiling in police stops is mainly associated with immigration enforcement, specifically with the detection of allegedly irregular migrants. The lack of broad publicly available police

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data on stop and search, namely on the ethnicity of the individuals stopped by police create obstacles to examine the extent of these racial profiling practices. This knowledge gap has been bridged by the study of the data generated by the police in the framework of two specific programmes (the Programme for Effective Identity Checks projects—hereinafter PIPE—and the Strategies for Effective Police Stop and Search—STEPSS—pilot project) and the exploitation of secondary sources, like national and international surveys assessing the disproportionate impact of police stops on certain national groups, which estimate that people from Africa rank first in terms of stop rates, followed by Eastern European nationals, with much lower rates for other noncitizen groups (Open Society Justice Initiative, 2021; Arenas-García & García-­ España, 2022). Several reports illustrate that also Roma people—regardless of their citizenship—have long been particularly affected by police stops due to ethnic profiling (Open Society Justice Initiative, 2007; Wagman, 2006). The problematisation and consequent politicisation of stop and search practices only emerged when Spain became a critical country of destination for international immigration. During the first decade of the twenty-­first century, Spain witnessed a period of both significant economic growth and noteworthy migration flows, which led the foreign resident population to soar from 2.3 per cent of the total population in 2000 to 12 per cent in 2009. This salient migration phenomenon and specifically the public exposure of some migrant communities resulted in widespread social changes and localised manifestations of social distress in some areas. In this framework, the most relevant moment of politicisation of stop and search practices targeting newcomers took place immediately after the onset of the late 2000s-early 2010s economic crisis. Both then and all throughout the last few decades, the Spanish National Police (hereinafter CNP), in performing its crime prevention and migration policing tasks, has widely utilised racial profiling, a practice upheld by the Spanish Constitutional Court (ruling No. 13/2001 of 29 January 2001; https:// hj.tribunalconstitucional.es/es/Resolucion/Show/4309). These biased police interventions have been essentially geared towards the detection of irregular migrants, in order to impose administrative removal orders

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upon them, which were rarely executed (Fernández-Bessa & Brandariz, 2016). Consequently, on average more than 50,000 irregular migrants were annually detected by the CNP from 2002 to 2012, peaking in 2008 with 103,000 detected irregular residents (source: Spanish Ministry of Interior, 2015). This turn-of-the-decade policing scenario led migrant people, NGOs, and community groups to challenge ethnic profiling-based stop and search practices targeting migrant communities. Conventional media and social media campaigns and civil society reports, usually coupled with observational studies, pictures, and footage, documented wide scale raids carried out in specific urban areas frequented by migrant people, like public transport, ‘ethnic’ restaurants, cybercafés, clubs (especially Latin dance halls), Moroccan shopping areas, grocery stores, and so on. Back then, many noncitizens were stopped and searched with no probable cause other than their alleged ‘foreign aspect’, while performing their everyday activities. Sometimes, arrested individuals reported physical and verbal abuse and disproportionately delayed identity verification procedures (Barbero & Fernández Bessa, 2013). Despite the relatively widespread awareness of these discriminatory police practices, political controversy only crystallised in 2009 when different international actors intervened and a top player—the Unified Police Union (hereinafter SUP)—unexpectedly stepped in, unwittingly legitimising civil society campaigns. In the framework of a contentious period in which police unions were actively opposing key Ministry of Interior policies, SUP leaked to the press in February 2009 an internal police order mandating the use of a quota system to detect undocumented migrants in Madrid’s metropolitan area. Specifically, these instructions set concrete targets of arrested undocumented migrants based on the population of the corresponding district. These Madrid police instructions overtly called for policing activities to prevailingly focus on Moroccan citizens, a national group in relation to which deportation procedures were allegedly more expeditious than in the case of Bolivian nationals (El País, 2009a). Whilst police unions claimed that these policing strategies were far from exceptional, Mr. Pérez-Rubalcaba, the then Socialist Minister of Interior, intended to legitimise these orders arguing that no immigration enforcement quotas had been implemented

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and that the leaked guidelines had been issued exclusively for crime prevention purposes (El País, 2009b). The political debate was further compounded by the intervention of international and institutional actors such as Amnesty International, the Spanish Ombudsman, and the Human Rights Committee of the United Nations, which also challenged these racial profiling practices (Amnesty International, 2011; Defensor del Pueblo, 2012; European Commission against Racism and Intolerance, 2011). The decision of the Human Rights Committee of the UN of July 2009 regarding the case of Ms. Rosalind Williams,2 a black Spaniard who was admittedly targeted by a stop and search for racial reasons in 1992, was particularly important. Indeed, that decision established that ethnic profiling is a violation of the states’ obligations under the International Covenant on Civil and Political Rights. Women’s Link Worldwide, in collaboration with the Open Society Justice Initiative, led the strategic litigation in this case, giving significant momentum to the politicisation of discriminatory police stops based on race and ethnicity criteria. Other relevant actors participating in this politicisation impulse were national and local pro-migrant NGOs and grassroots organisations such as the Neighbourhood Brigades of Observation of Human Rights (hereinafter BVODH) and the Coalition for the Police Management of Diversity (hereinafter PGPD). BVODH was a community group based in Madrid that observed and collected first-hand evidence of racial profiling-­driven police identity checks conducted in certain over-policed, black and brown neighbourhoods in the early 2010s. BVODH reports provided vital data to demonstrate that ethnic profiling practices were taking place. Yet the group concluded its activities due to the heavy fines imposed by police to individual activists (BVODH, 2011, 2014). PGDP, in turn, emerged from the STEPSS pilot project, which was carried out in Fuenlabrada, Madrid in the early 2010s. PGDP brings together progressive police associations and anti-discrimination NGOs to promote good police practices (Open Society Justice Initiative, 2021). The STEPSS  Williams Lecraft v. Spain, Views, Comm. No. 1493/2006, U.N.  Doc. CCPR/C/96/D/1493/2006 (HRC, Jul. 27, 2009); http://www.worldcourts.com/hrc/eng/decisions/2009.07.27_Williams_ Lecraft_v_Spain.htm. 2

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Project, funded by the Open Society, sought to monitor and reduce ethnic profiling by collecting stop and search data to address bias, reduce discretion, and increase police effectiveness. The positive results of the pilot project led to the implementation of the so-called PIPE programme in numerous local police forces across Spain. On the downside, though, this local police reform has ‘not elicited any interest from the National Police’ (Open Society Justice Initiative, 2021). In addition, despite apparently promising results at the local level, PIPE programmes have proven to have little transformative potential. If PIPE programmes can be seen as the long-term consequence of the heated migration policing debates of the late 2000s and early 2010s, those debates had also a remarkable, short-run effect on the policymaking sphere. The wide-ranging stop and search strategy targeting immigrant communities that characterised the first phase of the financial crisis was brought to a turning point when a new conservative government took office in December 2011. A new circular issued by the General Directorate of the CNP (Circular No. 2/2012 of 16 May 2012) banned the adoption of migration policing quotas, as well as massive policing interventions based on ethnic criteria. This circular meant a significant attempt to formally reply to some of the criticisms addressed to the Spanish police practices by the Human Rights’ national and international institutions; however, it contained little guidance on how to perform unbiased identity checks (Open Society Justice Initiative, 2021). Some years later, this regulation was followed by the inclusion of a non-­ discrimination clause in the controversial 2015 Protection of Public Security Act (hereinafter LOPSC). After the enactment of those measures, the number of ID checks and immigration arrests certainly decreased. However, this drop should be understood in the framework of the declining migration flows and the austerity measures characterising governance in Spain in the early 2010s, which led institutional actors to extend managerial schemes to the field of law enforcement (Fernández-­ Bessa & Brandariz, 2016). At least until the late 2010s, migration enforcement resources were prevailingly focused on convicted noncitizens. Consequently, the detection of undocumented immigrants through stop and search practices lost momentum as a critical migration policing task (Fernández Bessa, 2021).

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Certainly, police raids targeting irregular migrants are much less visible today than 10 to 15 years ago. Still, recent studies (SOS Racisme, 2018) claim that ethnic minorities are still stopped around seven times more than white citizens for crime prevention and public order reasons. Under the echo of Black Lives Matter protests, anti-racist activist groups stress that racially motivated police stops are still having an impact on black and ethnic minorities—regardless of their citizenship—on a daily basis. However, grassroots efforts have failed to have a significant influence on the mainstream media and political agenda since the early 2010s. In fact, the media and political attention was mainly focused on the policing of protesters during the years of the Great Recession (2008–2015).

5.3 Policing Protests During the Anti-austerity Cycle Stop and search practices gained prominence and changed their target when protest and contentious politics took on characteristics not seen in the previous decades. The cycle of protest associated with the Indignados or 15M Movement (for the date 15 May 2011) was particularly intense from 2011 to 2013. According to the annual statistics of the Spanish Ministry of Interior, the number of demonstrations increased tenfold from 2007 to 2012, from 4527 to 44,233 per year. In this period, Spain often ranked first in participation in public demonstrations: in 2012, for example, 25.9 per cent of the population surveyed by the European Social Survey (2012) reported to have demonstrated in the previous year. When the conservative Popular Party came into office in late 2011, the government increasingly framed anti-austerity demonstrations and actions as problems of public safety to be contained by the police (González-­ Sánchez & Maroto-Calatayud, 2018). At the same time, different grassroots organisations raised public awareness over the widespread use of stop and search and other police interventions as a low-profile tool to curb protests (Maroto, 2016). Stop and search measures are the base of the pyramid of protest policing. On the one hand, they have a direct impact on the dynamics of

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protests. Police presence and ID checks can exert by themselves a chilling effect on the right to assembly and expression (OPBP, 2020), especially when policing is perceived as arbitrary (Passavant, 2021). Just by being stopped, demonstrators are personally confirmed to be under surveillance, either for participating in an activity that merits police attention or as a result of political or ideological profiling. On the other hand, stops are the prerequisite for the deployment of a diverse repertoire of containment: verbal warnings, issuing tickets for fines, arrests, criminal charges, administrative sanctions. The more police discretion is used to stop demonstrators, the higher the risk of participation in lawful protest. This police approach to social unrest had an eventual legal embodiment in the new LOPSC, an administrative law piece of legislation passed in 2015 together with a reform of the Penal Code decidedly punitive in matters of public order. In line with its 1992 legislative predecessor, the 2015 LOPSC increased police discretion by providing legal coverage to existing stop and search practices, legalising what was previously unregulated. In addition, it expanded the scope of police powers by creating new categories of infractions and scaled up the sanctions to be imposed for public order motives. The 2015 LOPSC also expanded the regulation of the procedural aspects of stop and search. While introducing some safeguards (as mentioned above, the law included a non-discrimination clause in identification checks), at the same time, it legalised practices such as the identification based on the suspicion that a criminal or administrative offense has been committed. It also established a new catalogue of administrative infractions, many of them describing common practices during anti-austerity protests. Of particular importance have been the harsher provisions on the infractions of disobedience and resistance to authority, as well as the creation of a new infraction consisting of ‘disrespect and disregard’ for the police. These last few legal provisions have given the police a great deal of discretion when it comes to making identifications and imposing sanctions. The passage of the 2015 LOPSC was the outcome of a specific political and law enforcement scenario. From 2011 onwards, there had been an increase in the use of forms of police intervention other than anti-riot force and criminal proceedings against protesters. This was particularly

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the case of administrative fines in enforcement of the 1992 LOPSC and a myriad of municipal ordinances of civility, cleanliness, and so on. According to the statistics of the Ministry of Interior, the number of administrative sanctions officially recorded as ‘related to demonstrations’ grew remarkably, from 376 in 2011 to 1722 in 2012. Some analysts of the Spanish case have labelled this change in control tactics as ‘burorrepresión’ (Spanish for bureaucratic-repression) or ‘soft repression’ (Maroto, 2016). They claim that in a highly flammable political and social environment, the exercise of blunt force against demonstrators by the police might have generated strong mobilising responses and would have been too politically costly for the government. This political cost combined with the refusal of the judiciary in some prominent cases to sentence protesters for crimes against public order would have made the Ministry of Interior favourable to more discretionary police interventions not depending on judicial decisions. Eventually, the number of this kind of sanction notably declined, particularly with the new 2015 LOPSC (159 sanctions in 2016). There are indications that rather than a slowdown in the intensity of protest policing, sanctions may have ceased to be registered by police as ‘infractions related to demonstrations’, to be more probably recorded as infractions of ‘disobedience’ or ‘disrespect for authority’—these vaguely defined infractions skyrocketed from 7441 sanctions in 2015 to 31,332 in 2019. The rejection of these practices by social movements was explicit and can be seen to a certain extent as a continuation of the previous opposition against racial profiling. In 2013, the Coalition for Civil Disobedience launched a ‘Say no to identity checks’ campaign, which linked stop and search practices not only with the criminalisation of protesters and the economic crackdown of social movements through fines, but also with racist police practices and the restriction of the right to free movement. The campaign included civil disobedience actions which were replicated by other Spanish anti-repressive coalitions. However, since 2014, public criticism of police practices gradually lost steam as mobilisation in the streets declined. Nonetheless, Spanish coalitions of activists, such as We Are Not a Crime, and global NGOs, such as Amnesty International and Greenpeace, have maintained an active opposition to the 2015 LOPSC to this day (No Somos Delito, 2021, 2022;

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Amnistía Internacional, 2018, 2022). The repeal of this legislative act has been present in the party manifestos of progressive parties since its enactment but has not been adopted despite the existence of a progressive parliamentary majority since 2018. The constitutional challenge filed by progressive parties at the time of the LOPSC’s approval in 2015 was eventually rejected by the Constitutional Court (see ruling 13/2021 of 28 January 2021). A bill to reform the LOPSC has been in the legislative pipeline since 2019, yet civil society organisations consider that its content is markedly insufficient. Representatives of We Are Not a Crime (No Somos Delito, 2021) recently declared: ‘the freedoms of expression, assembly, demonstration and information will continue to be gagged, by maintaining the infractions most commonly used to curb protests, such as Article 36(6), which penalises disobedience or the refusal to identify oneself, or the lack of respect for an agent of authority (Article 37(4), true catch-all for police arbitrariness’. The reluctance of the ruling Socialist Party to repeal the LOPSC cannot be disassociated from a new political phenomenon that has recently emerged: police demonstrations against this legal reform. In November 2021, right-wing and far-right-wing parties and police unions sponsored a multitudinous demonstration in Madrid, championing an agenda reminiscent of ‘Blue Lives Matter’ and Donald Trump’s full-throated defence of police powers. A representative of the police union Jusapol, often associated with far-right political forces,3 claimed that the legal change ‘conveys a message of impunity, just when attacks on our police forces are on the rise’ (López-Fonseca & García de Blas, 2021). This seems to represent a relative novelty in the Spanish political scenario. Until recently, different attempts to limit police discretionary powers, that is, through guidelines issued by the Ministry of Interior in 2018 (Instruction 13/2018 of 17 October 2018), had been met with similar criticism from police unions; however, this opposition had been mostly funnelled through institutional channels, rather than street mobilisation, explicit political alliances with conservative actors, and populist rhetoric. This may  Jusapol was founded in September 2017, in the midst of the Catalan crisis, and is now the biggest police union in size, with 25,000 members, one-third of the CNP officers (López-Fonseca & García de Blas, 2021). 3

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indicate a change in how stop and search practices are being publicly discussed and in the very political role of police forces. Against the dominantly critical politicisation of the last decade, a public defence of the LOPSC as a guarantor of police power is emerging. This conservative twist could not be understood without addressing what has happened in Catalonia since 2017.

5.4 Policing Sovereignty: The Recent Politicisation of Policing Practices in Catalonia Both Eurobarometer and World Values Survey indicators (https://www. worldvaluessurvey.org/WVSOnline.jsp) show that trust in the police is apparently increasing across time among the Spanish public. Yet, there is a prominent exception to this trend. In Catalonia, trust in the (national) police plummeted since late 2017 until recently (see https://ceo.gencat. cat/ca/barometre/index.html). This significant divergence from the general scenario was essentially triggered by the Spanish administration’s reaction to the illegalised pro-independence referendum held in Catalonia in October 2017 (see Balcells et al., 2021; Rodon & Guinjoan, 2022). The wide-ranging political controversy engendered by that reaction and by the role played by national police units in it (Borràs, 2018) was eventually revitalised two years later, when both national and regional police forces used hard-line tactics to suppress widespread riots that occurred in late 2019. The first of these two episodes of political and public controversy on policing practices is well-known internationally. After having failed to prevent the illegalised Catalan pro-independence referendum from being held (Sánchez Cuenca, 2018), the Spanish administration deployed significant contingents of national police officers all over Catalonia. On the day of the referendum (1 October 2017), the Spanish government ordered a police crackdown aimed at closing polling stations. Although these tactics fell very short of reaching that goal they resulted in numerous injuries (Ajuntament de Barcelona, 2017).

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This police crackdown is just one manifestation among many of a wide encompassing punitive effort aimed at coercively managing Catalan dissent (Bernat & Whyte, 2020, 2022). The policing dimensions of this criminalisation endeavour increased the concern of Catalan actors and the distrust of wide swathes of the Catalan public in national police forces. In addition, a tumultuous Catalan autumn in 2019 greatly contributed to cementing policing practices as a critical topic of political debate. The Spanish Supreme Court decision severely sentencing top Catalan separatist leaders for their involvement in the 2017 referendum (ruling 459/2019 of 14 October 2019; Martín Pallín, 2020) sparked ten days of widespread riots and social unrest in Barcelona and other Catalan towns in October 2019, which led to violent clashes with the police (BBC, 2019; Jones & Burgen, 2019a, 2019b; see also Borràs, 2020). Still, there are two critical differences between those events and the policing strategies used to impede the pro-independence referendum in 2017. First, the main policing actor dealing with the 2019 riots was not the CNP, but the regional police force, Mossos d’Esquadra (hereinafter, Mossos). Second, the political actor making decisions on policing measures in 2019 was the Catalan government, formed by two separatist parties. Both aspects sealed the fate of that policing episode in terms of political controversy. This political scenario proved to be tricky for the moderate, ruling pro-­ independence parties, which had been especially vocal in calling into question Spanish police tactics but failed to adopt the same human rights standards to challenge the policing practices carried out by Mossos in late 2019. This patent double standard was leveraged by the left-wing separatist party Popular Unity Candidacy (hereinafter CUP), which had long championed an anti-repression agenda. The political atmosphere was particularly propitious. In line with rising public distrust in the national police, liberal law enforcement proposals were making their way into the political agendas of Catalan separatist parties.4

 Manifesto Project data show that liberal law enforcement measures fared much more prominently in the political manifestos of Catalan parties than in those of national parties in the last general election held in November 2019 (see Volkens et al., 2021). 4

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In this political climate, the Catalan regional election, held in February 2021, gave CUP a pivotal role in forming a new pro-independence parliamentary majority and sustaining a renewed separatist cabinet. For the first time in recent Spanish history, this political party called for deep policing changes as an indispensable requirement to back a ruling coalition (Surroca, 2021).5 Regional police officials vocally opposed these demands, not least by creating their own commission for law enforcement reform, constituted only by police officials (Esparch, 2021; Ramos-­ Salvat, 2021). Yet, the policy agreement eventually concluded by CUP and the ruling separatist party Republican Left of Catalonia (ERC) in March 2021 contains a surprisingly detailed list of policing reforms (static1.ara.cat/ara/public/content/file/original/2021/0323/09/preacord-­ entre-­erc-i-la-cup-98e8480.pdf ). As was expected, some of them promote policing the protest changes, but others put the spotlight on stop and search practices, which are challenged from both legal and racial justice viewpoints. More precisely, this policy agreement contains three specific measures affecting stop and search, namely ‘f. To implement protocols aimed at avoiding the enforcement of the Gag Law—i.e. the 2015 LOPSC—in cases in which it may compromise the right of assembly’; ‘g. To monitor that no policing intervention is guided by discriminatory principles. Complying with the European case law in order to prevent racialized individuals from being specifically targeted and prosecuted’; and ‘h. To implement PIPE projects to curb ethnic profiling and to reassure individuals and groups criminalised for racism, romaphobia, homophobia, sexism, islamophobia and xenophobia reasons’. The actual, long-term impact of CUP’s political stance on policing remains to be seen. Yet, to the dismay of police unions and unionist political forces, the Catalan parliament created an unprecedented parliamentary commission for the study of the policing model in November 2021, led by CUP and other separatist parties, in which at the time of writing 59 national and international experts on policing have participated, including scholars, advocacy groups, police officials, and police unions representatives (https://  CUP’s political standpoint was favoured by a new public controversy, focusing on the hard-line policing tactics used to deal with the widespread protests that erupted after the arrest and eventual imprisonment of rapper Pablo Hásel for speech crimes in February 2021 (BBC, 2021). 5

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www.parlament.cat/web/composicio/comissions/informacio-­comissio/ index.html?p_legislatura=13&p_tipus=COM&p_codi=1118).

5.5 Conclusion It is not easy to ascertain why policing practices were largely absent from political and public conversations in Spain until very recently. Academic contributions are of little use in this regard, since criminology and punishment and society studies, and even more policing studies, were scant in Spain until the 2000s, when the creation of the first degrees and master’s programmes in criminology gave a significant impetus to these studies. It is less difficult to elucidate why debates on policing practices made their way into the political and public field since the late 2000s. From the perspective of what David Garland (2013) calls ‘background causes’ of penal changes, we cannot overlook that the social and political landscape in Spain has been characterised in the last 10 to 15 years by two different, yet successive and mutually reinforcing crises. Initially, the global financial turmoil of the late 2000s hit the Spanish economy hard in two subsequent waves, extending its effects well into the mid-2010s.6 This far reaching economic crisis undermined the resilience of the Spanish public vis a vis certain questionable policies, such as policing strategies. In fact, the relevance of the early 2010s’ financial crisis and of its influence on the social and political climate is conspicuous in the first two cases analysed, that is, the utilisation of ethnic profiling and the coercive management of anti-austerity protests. Indeed, the economic dimension was particularly salient in the 15M protest cycle (Rodríguez López, 2016). The political implications of the financial turmoil are clearly unveiled when one considers that it greatly contributed to the subsequent Spanish political crisis starting in the mid-2010s. The long-standing two-party system consolidated in Spain since the transition to democracy in the  The Spanish GDP annually declined by 0.7 per cent from 2010 to 2014, whilst on average it had grown 2.7 per cent per year from 2000 to 2009 (https://data.worldbank.org/indicator/NY.GDP. MKTP.KD.ZG?locations=ES). 6

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early 1980s has essentially collapsed, resulting in increasing hurdles to secure a governing parliamentary majority. In fact, the effective number of electoral parties abruptly increased from 2.6 between 1982 and 2011 to 4.7 between 2015 and 2019 (Casal Bértoa, 2022). The Catalan case analysed here is a clear outcome of this exceptional political climate. In fact, the Catalan pro-independence movement can be seen as a pivotal manifestation of the current political crisis, that is, as a critical moment of collapse of the rules of political inclusion and exclusion (Fishman, 2019; see also Sánchez Cuenca, 2018). The turmoil in Catalonia paved the way for the emergence of new political players bringing novel political concerns, grievances, and vocabularies, such as the separatist Left and CUP. This window of political opportunity, together with the liberal attitudes towards law and order gaining traction in the framework of the pro-independence campaign and the particularly vibrant Catalan civil society (San Martín Morant, 2009), has laid the groundwork for the increasing significance of policing issues in the public and political fields. These last considerations show that, beyond the two high-profile crises operating as ‘background causes’, there are certain concrete, issue-specific forces contributing to the public salience of policing practices. In the case of the anti-racial profiling campaign, the political decision of the then new conservative administration to implement a ‘managerial turn’ in the field of migration policing and migration enforcement was crucial to (legally) overcome biased stop and search practices. Concerning the police repression of 15M and anti-austerity protests, the fact that those police practices did not target quintessentially politically excluded actors but mainly middle-class youth (Rodríguez López, 2016) facilitated the impulse of that political campaign. An agonistic perspective on penal changes (Goodman et  al. 2015, 2017) recommends going beyond the consideration of background causes and issue-specific factors. In fact, the analysed manifestations of politicisation of policing practices could not be grasped without taking into account the vital part played by political struggles and political actors. Like in other European countries, Spanish police unions have firmly opposed police reforms, decrying institutional efforts aimed at changing policing practices, including stop and search interventions. Yet, the campaign against racial profiling gaining momentum in the late

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2000s was crucially boosted by the police unions that weaponised internal migration policing guidelines in their struggle against the Minister of Interior. Arguably, the political stance adopted by police unions in this case greatly contributed to the legal reform banning the utilisation of ethnic profiling, which was enacted by the then new conservative government in 2012. The significance of global political players in giving impetus to public controversies over policing deserves to be scrutinised as well. The role played by these big organisations and their local subsidiaries in challenging policing strategies was relatively irrelevant in the case of anti-austerity protests and especially pro-independence protests in Catalonia. Their long-standing aversion to get involved in so-called domestic political issues led them to have a low profile in these cases. Again, the exception to this rule was the campaign against racial profiling. International NGOs played a key role in legally questioning racially biased stop and search practices. This is unsurprising, since racial profiling is one of the main concerns of international human rights organisations in the field of policing. In considering political struggles, it is remarkable that the political campaigns explored in this chapter largely failed to have a significant impact on the policymaking and law-making arena. The case of the abrogation of the 2015 LOPSC is particularly telling in this regard. Civil society organisations—especially organisations formed by migrants and noncitizens—did not manage to amass the political capital needed to have straightforward influence on the political field. The politicisation of policing practices in Catalonia is the exception in this case. The particular texture of the Catalan political environment, including its specific political party system, has decisively contributed to policing debates gaining traction. Comparatively, the Spanish case stands out for the kind of topics thematised in public and political conversations about policing and stop and search. To be sure, like in many other countries, ethnic profiling debates have had an impact on the Spanish case. However, they have only intermittently gained public prominence. Like in some other European jurisdictions, policing the protest measures recurrently surface as a critical topic of discussion. These protest policing debates seem to be particularly

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prominent in recently democratised jurisdictions, such as Spain (Brandariz, 2018). Apparently, in these jurisdictions policing debates give preference to unambiguously political issues such as freedom of assembly and policing the protest practices, to the detriment of more routine policing activities such as stop and search measures. The new phase of politicisation of policing practices opened by separatist actors in Catalonia may somehow help overcome the long-­standing, relative apathy of Spanish political parties to engage in law and order conversations. CUP’s detailed proposals on policing models and the measures adopted by Catalan institutions in the last two years might even be a turning point in terms of the politicisation of stop and search practices in Spain. However, there is also a half-empty viewpoint on recent politicisation changes. For reasons related to the specific features of the Spanish transition into democracy (Linz & Stepan, 1996; see also Rodríguez López, 2015; Sánchez Cuenca, 2014), civil rights debates have never ranked very high in the political arena (see also Sánchez Cuenca, 2018). The enduring political crisis is not conducive to significantly alter this peculiar trait of the Spanish political environment. In addition, CUP has long been seen as a radical, untrustworthy party by mainstream political actors. In contrast to other, relatively moderate separatist parties, its influence on the national stage is close to none. Consequently, CUP’s current efforts to reform stop and search practices might be destined to fail. Should that be the case, though, its effort ought to be leveraged as a potent precedent to usher in new forms and vocabularies of public engagement in the field of security policies and policing reforms.

References Ajuntament de Barcelona. (2017). Help service for victims of police brutality on 1 October: Final report. https://ajuntament.barcelona.cat/dretsidiversitat/sites/ default/files/Help_Service_for_Victims.pdf. Accessed 28 February 2022. Amnesty International. (2011). Spain: Stop racism, not people: Racial profiling and immigration control in Spain. https://www.acnur.org/fileadmin/ Documentos/BDL/2012/8830.pdf. Accessed 9 March 2022.

5  Policing Migration, Protest, and Sovereignty: The Politicisation… 

115

Amnesty International and Open Society Justice Initiative. (2013). Equality under pressure: The impact of ethnic profiling in the Netherlands. https://www. justiceinitiative.org/uploads/2a156df6-­c 28b-­4c99-­8f94-­1bc3e86cc19c/ e q u a l i t y -­u n d e r -­p r e s s u r e -­t h e -­i m p a c t -­o f -­e t h n i c -­p r o f i l i n g -­ netherlands-­20131128_1.pdf. Accessed 9 March 2022. Amnistía Internacional. (2018). Sal a la calle...Si te atreves. Tres años de la aplicación de la Ley Orgánica de Seguridad Ciudadana. https://doc.es.amnesty. org/ms-­opac/recordmedia/1@000030148/object/38826/raw. Accessed 10 March 2022. Amnistía Internacional. (2022). Ni Ley Mordaza ni Mordaza Maquillada. https://www.es.amnesty.org/en-­que-­estamos/campanas/ley-­mordaza-­feb22/. Accessed 10 March 2022. Añón, J.  G., Bradford, B., García, J.  A., Gascón, A., & Llorente, A. (2013). Identificación policial por perfil étnico en España: Informe sobre experiencias y actitudes en relación con las actuaciones policiales. Tirant lo Blanch. APDHA. (2016). Identificaciones basadas en perfil étnico en Granada: estudio realizado mediante observación y entrevistas directas. https://www.apdha. org/media/granada-­identificaciones-­etnicas-­2016-­web.pdf. Accessed 7 March 2022. Arenas-García, L., & García-España, E. (2022). Police stop and search in Spain: An overview of its use, impacts and challenges. InDret, 3, 233–257. Balcells, L., Dorsey, S., & Tellez, J. (2021). Repression and dissent in contemporary Catalonia. British Journal of Political Science, 51(4), 1742–1750. Barbero, I., & Fernández Bessa, C. (2013). Beyond surveillance: Racial profiled detention practices in everyday life. In W.  Webster & G.  Galdon (Eds.), Living in surveillance societies: The state of surveillance (pp.  295–304). CreateSpace. BBC. (2019, October 18). Catalan protesters clash with police at Barcelona airport. BBC. https://www.bbc.com/news/av/world-­europe-­50047019. Accessed 1 March 2022. BBC. (2021, February 18). Pablo Hásel protests: Violence in Spanish cities over rapper’s jailing. BBC. https://www.bbc.com/news/world-­europe-­56107027. Accessed 1 March 2022. Bernat, I., & Whyte, D. (2020). Spain must be defended: Explaining the criminalization of political dissent in Catalonia. State Crime Journal, 9(1), 100–117. Bernat, I., & Whyte, D. (2022). Criminalization as strategy of power: The case of Catalunya 2017-2020. In V. Vegh Weis (Ed.), Criminalization of activism: Historical, present and future perspectives (pp. 141–152). Routledge.

116 

C. Fernández-Bessa et al.

Borràs, J. (2018). Dies que duraran anys. Ara. Borràs, J. (2020). La força de la gent. Ara. Brandariz, J.  A. (2018). An enduring sovereign mode of punishment: Post-­ dictatorial penal policies in Spain. Punishment & Society, 20(3), 308–328. BVODH (Brigadas Vecinales de Observación de los Derechos Humanos). (2011). Informes anuales. https://www.brigadasvecinales.org/category/ informes-­controles/. Accessed 9 March 2022. BVODH (Brigadas Vecinales de Observación de los Derechos Humanos). (2014). Persecución y acoso policial: la persistencia de los controles de identidad por perfil étnico. https://www.brigadasvecinales.org/wp-­content/ uploads/2015/05/Tercer-­informe-­BVODH.pdf. Accessed 7 March 2022. Casal Bértoa, F. (2022). Database on WHO GOVERNS in Europe and beyond, PSGo. https://whogoverns.eu/party-­systems/effective-­number-­of-­parties/. Accessed 1 March 2022. Defensor del Pueblo. (2012). Informe Anual del Defensor del Pueblo 2011. https://www.defensordelpueblo.es/informe-­anual/informe-­anual-­2011/. Accessed 16 July 2020. El País. (2009a, February 16). La policía fija cupos de arrestos a 'sin papeles' por barrios. El País. https://elpais.com/diario/2009/02/16/madrid/1234787056_ 850215.html. Accessed 17 February 2022. El País. (2009b, February 17). Rubalcaba niega haber dado “instrucciones” para detener a un cupo de ‘sin papeles’. El País. https://elpais.com/ elpais/2009/02/17/actualidad/1234862221_850215.html#?rel=listaapoyo. Accessed 17 February 2022. Esparch, P. (2021, December 20). Set mesos de tensió interna als Mossos contra les “imposicións”. Ara. https://www.ara.cat/societat/malestar-­comissio-­ mossos-­trapero-­preacord-­erc-­cup_1_4218394.html. Accessed 1 March 2022. European Commission against Racism and Intolerance. (2011). Report on Spain (fourth monitoring cycle), adopted on 7 December 2010: CRI(2011)4. : European Commission against Racism and Intolerance, Council of Europe. https://rm.coe.int/fourth-­report-­on-­spain/16808b56c6. Accessed 10 March 2022. European Social Survey. (2012). Round 6 Data. Data file edition 2.4. Sikt  – Norwegian Agency for Shared Services in Education and Research. Fernández Bessa, C. (2021). Los centros de internamiento de extranjeros (CIE). Iustel

5  Policing Migration, Protest, and Sovereignty: The Politicisation… 

117

Fernández Bessa, C., & Brandariz, J. A. (2016). Transformaciones de la penalidad migratoria en el contexto de la crisis económica: El giro gerencial del dispositivo de deportación. InDret, 4, 1–25. Fernández Entralgo, J. F., Portilla Contreras, G., & Barcelona Llop, J. (1993). Seguridad Ciudadana: Materiales de reflexión crítica sobre la ley Corcuera. Trotta. Fishman, R. M. (2019). Democratic practice: Origins of the Iberian divide in political inclusion. Oxford University Press. Garland, D. (2013). Penality and the penal state. Criminology, 51(3), 475–517. González-Sánchez, I., & Maroto-Calatayud, M. (2018). The penalization of protest under neoliberalism: Managing resistance through punishment. Crime, Law and Social Change, 70(4), 443–460. Goodman, P., Page, J., & Phelps, M. (2015). The long struggle: An agonistic perspective on penal development. Theoretical Criminology, 19(3), 315–335. Goodman, P., Page, J., & Phelps, M. (2017). Breaking the pendulum: The long struggle over criminal justice. Oxford University Press. Jones, S., & Burgen, S. (2019a, October 14). Violent clashes over Catalan separatist leaders’ prison terms. The Guardian. https://www.theguardian.com/ world/2019/oct/14/catalan-­s eparatist-­l eaders-­g iven-­l engthy-­p rison-­ sentences. Accessed 1 March 2022. Jones, S. and Burgen, S. (2019b, October 18). Violence erupts after pro-Catalan general strike in Barcelona. https://www.theguardian.com/world/2019/ oct/18/catalonia-­general-­strike-­protests-­independence. Accessed 1 March 2022. Linz, J. J., & Stepan, A. (1996). Problems of democratic transition and consolidation: Southern Europe, South America, and Post-Communist Europe. Johns Hopkins University Press. López-Fonseca, O., & García de Blas, G. (2021, November 27). La derecha arropa la primera manifestación de policías para influir en una ley política. El País. https://elpais.com/espana/2021-­11-­27/la-­derecha-­arropa-­la-­primera-­ manifestacion-­de-­policias-­para-­influir-­en-­una-­ley.html. Accessed 3 March 2022. Maroto, M. (2016). Punitive decriminalisation? The repression of political dissent through administrative law and nuisance ordinances in Spain. In N.  Persak (Ed.), Regulation and social control of incivilities (pp.  69–88). Routledge. Martín Pallín, J. A. (2020). El gobierno de las togas. Los Libros de la Catarata. Muñagorri Laguía, I. (Ed.). (1995). La protección de la seguridad ciudadana. The International Institute for the Sociology of Law.

118 

C. Fernández-Bessa et al.

No Somos Delito. (2021, 22 November). La ley cambia pero la mordaza continúa. No Somos Delito. https://nosomosdelito.net/article/2021/11/22/la-­ ley-­cambia-­pero-­la-­mordaza-­continua. Accessed 3 March 2022. No Somos Delito. (2022, 14 February). El Consejo de Europa critica que la reforma de la Ley de Seguridad Ciudadana no se adapta “plenamente” a las normas europeas e internacionales de derechos humanos. No Somos Delito. https://nosomosdelito.net/article/2022/02/14/nota-­de-­prensa-­el-­consejo-­ de-­europa-­critica-­que-­la-­reforma-­de-­la-­ley-­de-­seguridad. Accessed 10 March 2022. Open Society Justice Initiative. (2007). I Can Stop and Search Whoever I Want: Police Stops of Ethnic Minorities in Bulgaria, Hungary, and Spain. https:// www.opensocietyfoundations.org/sites/default/files/profiling_20070419. pdf. Accessed 7 March 2022. Open Society Justice Initiative. (2013). L’égalité trahie: l’impact des contrôles au faciès en France. https://www.justiceinitiative.org/uploads/4987f35b-­807a-­ 4c71-­9 da2-­f a834ea30cc4/legalite-­t rahie-­i mpact-­c ontroles-­a u-­f acies-­ 20130925_5.pdf. Accessed 7 March 2022. Open Society Justice Initiative. (2021). Challenging ethnic profiling in Europe: A guide for campaigners and organizers. https://www.justiceinitiative.org/ uploads/11e6f9e9-­6 8b8-­4 166-­a 8f4-­9 12b98262ce4/challenging-­e thnic-­ profiling-­in-­europe-­20210727.pdf. Accessed 7 March 2022. OPBP (Oxford Pro Bono Publico). (2020). The law on policing peaceful protests. University of Oxford. Passavant, P. A. (2021). Policing protest: The post-democratic state and the figure of black insurrection. Duke University Press. Ramos-Salvat, G. (2021, March 24). Trapero no espera i crea un “consell de savis” per repensar l’ordre públic. ElNacional.cat. https://www.elnacional. cat/ca/societat/trapero-­no-­espera-­parlament-­crea-­consell-­repensar-­ordre-­ public-­mossos_594941_102.html. Accessed 1 March 2022. Rodon, T., & Guinjoan, M. (2022). Beaten ballots: Political participation dynamics amidst police interventions. Political Science Research and Methods, 10(1), 153–170. Rodríguez López, E. (2015). Por qué fracasó la democracia en España: La Transición y el régimen del ’78. Traficantes de Sueños. Rodríguez López, E. (2016). La política en el ocaso de la clase media: El ciclo 15M-Podemos. Traficantes de Sueños. San Martín Morant, J. (2009). Catalunya paradís de la societat civil? Explicacións i conseqüències de la participación en associacions. [PhD Dissertation:

5  Policing Migration, Protest, and Sovereignty: The Politicisation… 

119

Autonomous University of Barcelona]. Fundació Bofill. fundaciobofill.cat/ uploads/docs/9/6/7/c/f/3/z/a/6/1604.pdf. Accessed 1 March 2022. Sánchez Cuenca, I. (2014). Atado y mal atado: El suicidio institucional del franquismo y el surgimiento de la democracia. Alianza. Sánchez Cuenca, I. (2018). La cuestión nacional: La democracia española ante la crisis catalana. Los Libros de la Catarata. Racisme, S. O. S. (2018). Pareu de parar-me. https://www.pareudepararme.org/. Accessed 7 March 2022. Surroca, B. (2021, February 18). Sabater reclama un canvi de model policial i la dissoluciò de la Brimo. NacióDigital. https://www.naciodigital.cat/noticia/216108/sabater-­r eclama-­c anvi-­m odel-­p olicial-­d issolucio-­b rimo. Accessed 1 March 2022. Volkens, A., Burst, T., Krause, W., Lehmann, P., Matthieß, T., Regel, S., Weßels, B., & Zehnter, L. (2021). The Manifesto Data Collection. Manifesto Project (MRG/CMP/MARPOR). Version 2021a. Wissenschaftszentrum Berlin für Sozialforschung. Wagman, D. (2006). Discriminación policial  – Racial Profiling. Boletín Criminológico, 87, 1–4.

Part II Ethnic Profiling in European Countries

6 Contrôles au faciès in France: From Denial to Recognition to Inaction Magda Boutros

In France, police stops—called identity checks—have been an important source of tension between the police1 and marginalized groups for at least four decades and have sporadically sparked urban riots (Hajjat, 2022). The law grants the police extensive powers to conduct identity checks, including when there is no suspicion of offence and irrespective of the person’s behavior.2 It is estimated that police conduct millions of ID checks every year, and sociologists note that they are the most frequent  I use the generic term “police” to designate the two national police forces, police nationale and gendarmerie. 2  Article 78-2 of the code of criminal procedure allows police officers to stop (a) any person against whom there are plausible reasons to suspect they are committing or about to commit a crime, (b) any person, regardless of their behavior, to prevent a breach of public order, (c) any person within places and times specified by prosecutor’s requisition for the purpose of searching for specified offenses, and (d) anyone within 20 km of all borders, and within international ports, airports, and train stations. 1

M. Boutros (*) Department of Sociology, University of Washington, Seattle, WA, USA CRIS, Sciences Po, Paris, France e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 J. de Maillard et al. (eds.), The Politicization of Police Stops in Europe, Palgrave’s Critical Policing Studies, https://doi.org/10.1007/978-3-031-35125-9_6

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type of interaction between police officers and young men of color from low-income backgrounds (Fassin, 2013; Gauthier, 2015; Jobard et  al., 2012; Jobard & de Maillard, 2021). Despite this, ID checks did not become a salient political issue until the late 2000s (Jobard & de Maillard, 2021) when politicians and courts started addressing the issue of discrimination in ID checks—what the French call contrôles au faciès (or appearance-based stops). This chapter examines why and how ID checks became politicized in the late 2000s in France, and what impact their increased political salience had on policy and legal change. I show that the main driver behind the politicization of police stops was a campaign against racial profiling led by the transnational organization Open Society Justice Initiative (OSJI) in collaboration with French human rights organizations, antiracist organizations, lawyers’ and judges’ unions, and local groups. The campaign’s success at placing the issue on the political agenda can be explained by its use of three intertwined strategies. The coalition’s first action was to conduct a study in collaboration with French academics to quantify racial disparities in ID checks. The research demonstrated that people perceived as Black or Arab, and those dressed in styles common among low-income youth, are disproportionately targeted by police in Paris (Open Society Justice Initiative, 2009b). The study’s publication in 2009 led to a growing recognition that disparities in ID checks are a “scientific reality” and government officials shifted from systematically denying discrimination in ID checks, to recognizing contrôles au faciès as a “reality.” The coalition used this opportunity to launch a political advocacy campaign, aimed at presidential candidates and members of Parliament, calling for legal and policy reforms. In parallel, they initiated an innovative litigation strategy that resulted in France’s highest court condemning the French state, for the first time, for discriminatory stops. This three-tiered strategy successfully placed the issue of contrôles au faciès on the political agenda and transformed the terms of the public debate, from a discussion about whether contrôles au faciès exist to a debate about what should be done to combat them. However, strong resistance on the part of police unions and successive governments meant that activists’ reform proposals were never enacted. By the end of the 2010s, contrôles au faciès had become an issue of political debate, but on the ground, little about the policy or practice of ID checks changed.

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This chapter draws on data collected as part of a larger ethnographic project on contemporary mobilizations against racialized policing in France.3 For two years (2016–2018), I conducted participant-­observation within three mobilizations and interviewed over 90 movement actors, including activists, NGO workers, victims-turned activists, lawyers, and researchers. In addition, I analyzed activist publications, legal case files, as well as media and parliamentary debates on issues raised by activist groups, including police violence, police discrimination, and police impunity.

6.1 1980s–2000s: Governmental Denial of Discrimination in ID Checks Until the late 2000s, police stops were rarely raised in public and political debates, and when they were, government officials systematically denied any discrimination in the practice of ID checks. Between the early 1980s, when ID checks were codified in law, and the early 2000s, the issue was raised in Parliament only four times, when the government sought to expand police powers of stop and search.4 Left and far-left Parliamentarians argued that granting the police expanded powers risked leading to a chasse au faciès (“appearance-based hunts”),5 that is, the disproportionate targeting of foreigners and those deemed foreigners. In response, government representatives on the right and left consistently affirmed that there is no discrimination in police stops and that, if individual officers did discriminate, they would be punished under existing anti-discrimination laws.6  PhD dissertation (unpublished) The True Colors of Police Violence: How Activists Expose Racialized Policing in Colorblind France, Northwestern University, 2020. 4  In 1986, when the law expanded police powers and authorized “preventive” ID checks against any person to prevent a breach of public order, in 1993, when the law added the possibility of conducting ID checks against any person in the spaces and times specified by a prosecutors’ requisition, and again in 1997 and 1999, during debates about immigration laws that expanded police powers to stop foreigners to check their residency papers. 5  See, for example, the statement of MP Edwige Avice in the National Assembly on 3 July 1986. 6  See, for example, the speech of Justice Minister Pierre Méhaignerie in the National Assembly on 10 June 1993 (“if there were discriminatory stops, this would lead to nullifying the procedure and in the judiciary imposing sanctions”); or the response of Interior Minister Jean-Pierre Chevènement to question number 1631 addressed on 10 November 1999 (“there is no contrôle au faciès”). 3

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In other words, the debate remained confined to opposition members warning against the risk of discrimination and government officials affirming that there is no discrimination. Beyond these rare exchanges in Parliament, discrimination in ID checks was not discussed in electoral campaigns or mainstream media. The governmental denial was made possible by the absence of data on ID check practices. In France, like in many other countries, the police maintain a high degree of secrecy around their practices and are resistant to external scrutiny (Fassin, 2013; Jobard, 2002; Monjardet, 1985, 2005). They don’t keep systematic records of ID checks, and it remains unknown how many stops the police conduct, where, against whom, for what motives, and with what outcomes. The institutional opacity surrounding ID check practices is compounded by France’s Republican ideology, which is based on an anti-racialist ethos that promotes an “indifference to difference” and deems racial categories essentializing and racist (Simon, 2014). French law bans the collection of data on people’s race, ethnicity, or religion (with limited exceptions for research purposes). Thus, despite France’s stated commitment to combating racism, it remains difficult to measure racial disparities, which allows powerholders to deny structural racism (Goldberg, 2009; Simon, 2015). As a result, those warning against discrimination in ID checks had difficulties substantiating their claims, and the government easily dismissed their critiques as unfounded (Boutros, 2020).

6.2 2005–2009: Producing Evidence of Racial Disparities in ID Checks When Open Society launched a racial profiling program in the mid-­2000s, their first action was to fund and coordinate research to quantify disparities in police stops. As OSJI’s program director explained, “given denial of the issue, and a refusal to discuss race and how it was playing out in policing, we felt like even that conversation was impossible to start, without having an evidence base in France.”7 To produce this evidence, they  Interview with Rachel Neild, OSJI, 29 March 2018.

7

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collaborated with Fabien Jobard and René Lévy, two academics working in France’s most prestigious research center on law and criminal institutions, CESDIP.8 Quantifying disparities in police stops in France raised two challenges. First, the research required capturing who gets stopped by police, but French police keep no systematic records of police stops. To overcome the absence of records, OSJI solicited the help of John Lamberth, a US-based expert who had developed a research design to measure racial profiling without relying on police records. Lamberth’s method relied on observing police stops in public spaces. Observers, unbeknown to the police, record the characteristics of all the people present in the space (apparent race, gender, age) to create a benchmark of the “available population.” Then, they record the characteristics of people stopped by the police, in order to find out whether the police disproportionately stop certain groups. The second challenge was to measure racial disparities in a context where collecting racial data is viewed with deep suspicion (Boutros, 2022). As Fabien Jobard and René Lévy adapted Lamberth’s methodology to the French context, they sought to strike a delicate balance between using racial categories to measure disparities and framing the study in a way that would resonate with the dominant anti-racialist culture. In addition to collecting data on race, the scholars added an attention to clothing style to test whether police target people primarily based on their racial or their class appearance. This helped pre-empt one of the most common critiques levied against racial inequality research, that it obscures class inequalities. The academics also revised OSJI’s first draft of the report to remove references to France’s colonial history and critiques of France’s “race-blindness,” for fear it would disqualify the whole report as politically motivated.9 In their publications and media interviews, they used terms like “visible minorities” or “appearance-based discrimination” (contrôles au faciès) rather than explicit references to “race.” The study’s report, Profiling Minorities, was released in 2009. Based on several months of observations in five sites in Paris, the analysis showed  CESDIP stands for Centre de Recherches Sociologique sur le Droit et les Institutions Pénales and is part of France’s national research agency, CNRS. 9  Interview with Fabien Jobard, 28 August 2018. 8

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that people perceived as Black and Arab were, on average, six and eight times more likely to be stopped for an ID check than those perceived as White. People dressed in the style common among youth in low-income neighborhoods were 11 times more likely to be stopped. The report described these findings as evidence that “identity checks in Paris are principally based on the appearance of the person stopped, rather than on their behaviour or actions” (Open Society Justice Initiative, 2009b:10).

6.3 2009: Contrôles au faciès Are “Scientifically Proven” The scientific credibility of the report’s authors, the quantitative nature of its findings, and the scholars’ avoidance of controversial topics like racial statistics or France’s colonial history, resulted in broad, mainstream acceptance of the report’s findings as “scientific truth.” The national newspaper Le Monde stated “The reality of contrôles au faciès is established.”10 Right-­ wing daily Le Figaro ran a story with the title “French police largely practices délit de faciès,”11 and news channel BFMTV wrote “The practice of contrôle au faciès is scientifically proven.”12 Media stories highlighted the substantial empirical research of the report and concluded that the study “confirms and gives scientific value to what visible minorities in France have been saying for years.”13 The positive media reception of the study made it more difficult for government representatives to continue denying the existence of discrimination in ID checks (Jobard & Lévy, 2011). Police chiefs and representatives of the right-wing government of the time, led by President Nicolas Sarkozy, started recognizing that there are disparities in police stops. The spokeswoman for the Paris Police Prefecture publicly commented on the study, admitting “This study provides us with statistical information that

 Le Monde, 1 July 2009, “Police: La réalité des contrôles au faciès établie.”  Le Figaro, 30 June 2009, “La police française pratique largement le délit de faciès.” 12  BFMTV, 1 July 2009, “Le contrôle “au faciès” scientifiquement prouvé.” 13  Le Monde, 30 June 2009, “La police mise en cause pour ses contrôles au faciès.” 10 11

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appears scientifically indisputable.”14 In a shift from previous practice, she recognized that the police disproportionately stop certain groups based on their appearance, but she sought to justify these disparities by arguing that good police work requires making such distinctions to prevent crimes; “Police work cannot be like a poll where we try to [stop a] representative [sample] of the population. Our mission is to prevent crimes and misdemeanours, not to [accurately] represent society.”15 In other words, the spokeswoman recognized the disproportionate targeting of minorities, but rejected the argument that these disparities denoted discrimination. Others in the government more readily defined the findings as evidence of discrimination. The government’s Commissary for Diversity and Equal Opportunities Yazid Sabeg told the New York Times that profiling “has been an issue for a long time.” He claimed that the practice fosters a sense of injustice among young people: “The police have a hard job, but they have to make more efforts not to give the feeling that they are discriminating among populations—that is the major problem [and it] leads to tension among the youth and tension between the youth and the police.”16 The recognition of the reality of contrôles au faciès was not unanimous, however. The Interior Minister continued denying the practice, while at the same time equating any condemnation of racial profiling with a dangerous stigmatization of all police officers. For example, in 2010, during a governmental seminar on national identity, the State Secretary for City Affairs Fadela Amara said that people are fed up with being stopped by police on the basis of their appearance. To this, Interior Minister Brice Hortefeux responded: “There are no contrôles au faciès. Claiming this means blaming all police officers. I refuse to let police officers be stigmatized.”17 Within the government, this attitude of denial became increasingly marginal. However, the consistency with which successive Interior Ministers denied contrôles au faciès signalled the strong opposition of the rank and file to any allegations of discrimination.  Mediapart, 4 July 2009, “Contrôles au faciès: La réponse de la police.”  Le Monde, 20 June 2009, “La police mise en cause pour ses contrôles au faciès.” 16  New York Times, 29 June 2009, “Study Says Blacks and Arabs Face Bias From Paris Police.” 17  L’Obs, 10 February 2010. “Le séminaire à Matignon aurait tourné au défouloir.” 14 15

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6.4 Early 2010s: Campaign Actors Elaborate Reform Proposals Building on the mounting recognition of contrôles au faciès as a reality, OSJI and their partners launched an unprecedented national campaign calling for legal and policy reforms to reduce discrimination in ID checks. By the early 2010s, OSJI’s field building efforts had resulted in the establishment of two national coalitions, the Platform to End Contrôles au Faciès, composed of large human rights organizations, left-leaning lawyers’ and judges’ unions, and smaller non-profits,18 and Stop le Contrôle au Faciès, a collective of local and national organizations that used community-­organizing methods.19 Drawing on Jobard and Lévy’s study, they argued that the practice of ID checks in France is discriminatory and needs to be reformed. To bolster their legitimacy in political settings, coalition actors adopted a moderate, reformist discourse, and steered clear of radical critiques of the police. In their media interventions, spokespersons for the campaign said that they are “not anti-police” and that they understand why ID checks are an important policing tool. Their goal, they explained, was to address discriminatory behaviors by a minority of officers.20 Even though most activists believed that contrôles au faciès have roots not only in individual bias but also in institutional policies and practices, their public discourse initially emphasized the need to address individual instances of discrimination and refrained from denouncing institutional racism. The campaign also maintained a certain distance from the growing protest movement against police violence and impunity, whose leaders adopted more radical claims and denounced “state violence” and “state racism” (although some activists participated in both mobilizations).

 Members included OSJI, Human Rights Watch, Ligue des Droits de l’Homme, GISTI, Syndicat des Avocats de France, Syndicat de la Magistrature, MCDS, Pazapas Belleville, and WeSignIt. 19  Members included Humanity In Action, Les Indivisibles, CCIF, Brigade Anti Négrophobie, Norside, Cité en Mouvement, La Balle au Centre Bobigny. 20  See for example the TV interview of the spokesperson of Stop Le contrôles au faciès: Youtube, 10 October 2012, “Récépissé: Débat sur LCI avec Sihame Assbague, porte parole du collectif ” https:// www.youtube.com/watch?v=74GCtZmacv0. 18

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In line with their framing of the problem as discrimination, the campaign called for reforms that would reduce police discretion and reinforce monitoring and accountability. In their European program, OSJI developed a package of reforms, which included expressly outlawing racial profiling, reforming police training, and, crucially, encouraging states to monitor racial disparities in police stops (Open Society Justice Initiative, 2009a). They called for the implementation of measures experimented in the US and the UK, which require that police forces systematically issue “stop forms”—written records that document the time, place, and motive of each stop, alongside demographic information about the person stopped, including their race. The transnational organization was aware that many European governments are reluctant to gather data on citizens’ race or ethnicity, but they argued that overcoming such reluctance “is essential to foster accountability and provide a foundation of knowledge on which to build policy” and is the only way to monitor the police’s progress at reducing racial disparities (Goldston & Neild, 2006). OSJI’s French partners pushed back against the call to record the race and ethnicity of people stopped. They argued that in France’s anti-­racialist context, such a measure would not be politically acceptable, as it would violate Republican values of universalism and “indifference to difference.” One of their main concerns was that requiring the police to collect ethno-racial data would be viewed as an attempt at fichage, that is, the creation of new state databases to monitor racial minority populations, reminiscent of the Vichy regime. Coalition actors sought to adapt OSJI’s reform proposals to the French context. They called for implementing stop forms (récépissé de contrôle d’identité) that would record the date, place, and motive of every ID check, as well as the gender, age, and place of residence of the person stopped, but not their race or ethnicity. Activists argued that systematically recording every ID check would allow for more transparency of police actions, better evaluation of the effectiveness of policing practices, and a police-population dialogue based on “facts and not feelings.” Stop forms would also “provide those who are subjected to ID checks with an objective element to prove it, and by the same token give police a way to justify their stop in case of erroneous accusations of discriminatory or

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abusive stop.”21 This shifted the stated goal of the reform proposal from OSJI’s initial goal of monitoring of racial disparities in police stops to an argument centered on improving police effectiveness and opening avenues for contesting abusive stops. The campaign’s care to maintain a moderate political discourse and to adapt their reform proposals to the dominant culture helped them impose the issue on the political agenda.

6.5 2011–2012: Contrôles au faciès Become a Topic of Political Debate The activists’ political advocacy work took off in 2011 and 2012, in the context of the presidential election that pitted right-wing incumbent Nicolas Sarkozy, who promoted a tough law-and-order rhetoric, against socialist François Hollande. During the presidential campaign, OSJI, French organizations, and the collective Stop le Contrôle au Faciès, organized a series of meetings with police unions, political parties, and candidates to push them to take position on the issue of contrôles au faciès. Through these efforts, the activists developed close ties with the youth wing of the Socialist Party, Mouvement des Jeunes Socialistes, which endorsed their reform proposals. The young socialists then launched an internal campaign within the party to get candidate François Hollande to support these proposals, as a way to boost votes in low-income neighborhoods. As a result, Hollande included in his election manifesto a pledge to “combat délit de faciès [appearance-based discrimination] during identity checks with a new procedure respectful of citizens.” For the first time, contrôles au faciès had become a political issue in national elections. Around the same time, activists succeeded in getting the second largest police union, Syndicat Unité SGP Police-FO to speak up publicly about contrôles au faciès. In a photo exhibit OSJI created as a public campaign tool, two of the union’s leaders were quoted saying that “repeated ID checks are counterproductive” because they give citizens the impression that the police are not at their service (Open Society Justice Initiative, 2013).  Stop le Contrôle au Faciès, press kit 2011.

21

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In addition to their advocacy work around the 2012 presidential election, the mobilization launched lobbying efforts targeting members of Parliament to encourage them to introduce reform bills. While until then, opposition members only raised the issue of contrôles au faciès reactively, when the government sought to expand police powers, in the 2010s, they started proactively introducing law bills and amendments to propose reforms. Between 2011 and 2017 members of the French Communist Party (PCF), the left-wing party France Insoumise (FI), the Green Party (EELV), the center right party (UDI), and independents tabled nine bills and seven amendments to combat contrôles au faciès. The bills echoed the coalition’s reform proposals: restricting police powers to conduct ID checks and establishing stop forms (without recording race). These efforts significantly increased the rate at which contrôles au faciès was debated in Parliament (see Fig. 6.1). They also led to an important shift in the terms of the legislative debate—from a debate about whether contrôles au faciès exist to a discussion on the appropriate response (if any) to a phenomenon now widely recognized as real. Further, the activists secured the support of the state’s independent human rights monitor, the Rights Defender (Défenseur des Droits). Following advocacy efforts led by OSJI and their partners, the Rights

40 35 30 25 20

Senate

15

National Assembly

10 5 1981 1983 1985 1987 1989 1991 1993 1995 1997 1999 2001 2003 2005 2007 2009 2011 2013 2015 2017

0

Fig. 6.1  Number of parliamentary sessions in which “contrôles au faciès” is mentioned, 1982–2018

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Defender conducted a study to examine various policy measures adopted in other countries to reduce racial profiling, including stop forms. He argued that stop forms can help reduce the number of stops, and thereby the number of discriminatory stops, but they cannot “solve the root of the problem;” and called for improved police training and for a national dialogue to restore mutual understanding between the police and the population (Défenseur des Droits, 2012:51). The independent institution also intervened in lawsuits the activists launched and continued pushing the government to implement reforms to combat racial profiling. In 2017, the Rights Defender published the results of a national survey on police stops, which found that people perceived as young, male, and Black, or Arab were 20 times more likely to be stopped by police (Défenseur des Droits, 2017). In sum, in the early 2010s, the campaign against contrôles au faciès made significant inroads in the French political debate. After years of denial, government officials started recognizing the existence of widespread disparities in ID checks; presidential candidates promised reforms; members of Parliament introduced reform bills; and the activists gained allies in the Rights Defender and in some police union leaders.

6.6 2012–2017: Socialist Government Reneges on Promise of Reform Despite successfully placing contrôles au faciès on the political agenda, activists struggled to get their reform proposals enacted. As soon as François Hollande was elected in May 2012, his cabinet announced that it was working on the implementation of stop forms. Immediately, police unions across the political spectrum voiced strong opposition to the reform. Union representatives told the media that, far from improving trust in the police, stop forms would “send a message of defiance to the police who are already very exposed” and would increase “suspicion of the Republican police.” They added that stop forms would, in fact, increase insecurity: “Give a stop form to a thug in the morning? It’s like giving him carte blanche to ruin the lives of a whole neighbourhood all

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day long!”22 This claim, which is based on the false idea that stop forms would prevent the police from stopping the same person twice on the same day, quickly gained ground and became one of the unions’ main talking points. Even the union that had spoken publicly about contrôles au faciès retreated and said that these proposals “are not a priority.” Faced with strong and nearly unanimous opposition from within the police, Interior Minister Manuel Valls announced, just four months after Hollande’s election, that the government would abandon the implementation of stop forms. To justify this reversal, he used two arguments, saying “this measure is not sufficiently effective, and would risk being considered by police officers as a sign of defiance.”23 Without surprise, after the Socialist government indicated that they would not implement the promised reforms, none of the law bills and amendments introduced in Parliament were enacted. In line with Valls’ claim, Socialist and Republican members of Parliament responded to calls for reform by emphasizing the inefficiency of stop forms. During Parliamentary debates, they no longer argued, as they had done for decades, that there are no contrôles au faciès. Instead, most admitted the existence of disparities in ID checks, but questioned the appropriateness and efficiency of stop forms. The real problem, some argued, is people’s feeling of injustice, which is reinforced by some officers using the informal tu rather the formal vous, an issue that can be improved through better police training.24 Others said that stop forms “would add significant burdens for police” but would have no benefit against contrôles au faciès, because they “would not constitute proof of discriminatory behaviour.”25 Thus, while the removal of racial or ethnic data from stop forms allowed the proposal to reach parliament, it also exposed it to criticism of inefficiency: without racial or ethnic data, it was unclear how stop forms would help monitor racial disparities. Even after the government publicly reneged on the promise to establish stop forms, activists and some members of Parliament maintained  Le Figaro, 31 May 2012 “Contrôles d’identité: Valls inquiète la police.”  Journal Officiel du Sénat, 4 October 2013, Réponse du Premier Ministre. 24  Sénat, 11 May 2016, compte rendu integral, François Grosdidier’s statement. 25  Sénat, 11 May 2016, compte rendu integral, Alain Marc’s statement. 22 23

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pressure on the Socialist Party to live up to its electoral promise to address contrôles au faciès. In response, the Prime Minister announced a series of policy changes in 2013: the police launched an experimentation of body-­ worn cameras; the code of ethics was modified to specify the rules of conduct during ID checks; a new online platform was created for citizens to file complaints of police misconduct; and it became compulsory for uniformed police to wear a tag with their matriculation number.26 To the activists, these policies were insufficient.27 They noted that the body-­ worn cameras had already been experimented with under Sarkozy, but with the stated goal of proving that police use of force was legitimate in specific interventions and to monitor the whereabouts of suspects. Moreover, the policy gave officers full discretion to switch the cameras on and off at their will, thus rendering cameras ineffective as a tool to monitor police conduct.28 The activists further argued that the changes to the code of ethics failed to reduce police discretion and would thus be ineffective at combating profiling. The new complaints mechanism, while welcome, obscured the fact that the agency handling complaints for police misconduct is a police department, staffed by police officers and operating under the same hierarchy as the officers they investigate. And they noted that there is little compliance with the requirement to wear the matriculation number tag, and no enforcement. Activists continued lobbying for their reform proposals: restricting police powers to stop and search and implementing stop forms. Following the terrorist attacks of 2015, the government doubled down on its opposition to activists’ reform proposals, this time emphasizing that these reforms would be an unacceptable sign of defiance toward the police. In a context of normalization of a securitarian and militaristic discourse, government representatives started depicting claims of contrôles au faciès as dangerous and ungrateful claims that increased the already high risks the police faced. During a parliamentary debate in  Journal Officiel du Sénat, 4 October 2013, Réponse du Premier Ministre.  BFMTV, 17 October 2012, Matricule des policiers: “Une mesurette qui ne changera rien”, https://www.bfmtv.com/societe/matricule-des-policiers-une-mesurette-qui-ne-changera-­ rien-310460.html. 28  Stop le Contrôle au Faciès, 7 April 2013. “Des cameras sur l’uniforme des policiers. On se moque de nous!” 26 27

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2016, when a member of Parliament raised the issue of contrôles au faciès, Interior Minister Bernard Cazeneuve responded: “The police are at the frontlines to ensure the security of French citizens: to do this they expose their lives and pay a hefty price … Taking into account what the police go through, I cannot let people believe that they should be suspicious of the way legal principles are applied.”29 Although police unions managed to block the reform proposals, the activists’ advocacy campaign maintained the issue on the national political agenda. During the 2017 presidential election campaign, the OSJI-­ led Platform to End Contrôles au Faciès reached out to all the candidates, except the far right Front National, to request a video interview about contrôles au faciès. All the major presidential candidates’ campaigns, except for the Republican François Fillon, responded to the interview request, from far-left candidates Jean-Luc Mélenchon and Phillipe Poutou, to socialist Benoît Hamon and self-described centrist Emmanuel Macron. All of them pledged to take measures to combat the practice, and all but Macron endorsed the activists’ proposals (Macron suggested expanding the use of body-worn cameras instead). A decade earlier, the idea that most major presidential candidates would publicly pledge to combat contrôles au faciès was unthinkable. Now, with the widespread recognition that contrôles au faciès are a “reality,” politicians, especially on the left, sought to strike a delicate balance—promising to tackle the issue to gain votes among marginalized communities, while in practice appeasing police unions’ concerns.

6.7 2016: Highest Court Condemns French State for Discriminatory Stops In parallel to their political advocacy efforts, the OSJI-led coalition launched an innovative litigation strategy to challenge discriminatory stops. In 2013, in partnership with lawyers Felix de Belloy and Slim Ben Achour, they filed a civil lawsuit against the state in the name of 13 Black and Arab men who alleged that they had been targeted for ID checks on 29

 National Assembly, compte rendu integral, 29 June 2016, Bernard Cazeneuve’s statement.

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the basis of their skin color. In November 2016, in what was widely considered an historic decision, France’s highest court, the Court of Cassation, condemned the state for grievous fault (faute lourde) for discrimination in three ID checks.30 This judicial victory resulted from the coalition’s innovative use of civil anti-discrimination laws. Until then, attempts to contest discriminatory stops happened primarily in criminal courts, with lawyers arguing that the stop that led to a defendant’s arrest was discriminatory and therefore illegal. These challenges virtually never succeeded, because they required that the person stopped prove an intention to discriminate on the part of the officers. To overcome these obstacles, Ben Achour and de Belloy developed a legal strategy based on civil law. This allowed them to sue the state, rather than individual officers, and to rely on the more expansive definition of discrimination in civil law, which does not require proof of an intention to discriminate. Relying on civil law also allowed them to argue for a shared burden of proof between the plaintiff and the defendant. Indeed, under European and French civil law, the burden of proof in discrimination cases is shared between the plaintiff and the defendant: plaintiffs must provide evidence sufficient to lead to a presumption of discrimination, after which the burden shifts to the defendant to prove that the stop was not discriminatory. In the lawsuit, Ben Achour and de Belloy argued that the court must apply the shared burden of proof to ensure effective judicial review of police actions; otherwise, they wrote, in the absence of records of ID checks and short of officers using explicit racist language, no victim of discrimination would be able to prove differential treatment. Each plaintiff presented two pieces of evidence, a witness affidavit testifying that he had been stopped for no apparent reason, and the Profiling Minorities report showing widespread disparities in ID checks in France. They argued that this should be sufficient to establish a presumption of discrimination, and it was then up to the state to prove that the stop was not discriminatory. The Court of Cassation endorsed the plaintiffs’ arguments. It ruled that “an identity check conducted based on criteria stemming from  In French law, the state can be held accountable for simple fault (faute simple) or grievous fault (faute lourde), with the latter referring to more serious violations. 30

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physical characteristics associated with an origin, real or imagined, without any prior objective justification” is a discrimination that the state is accountable for. The court also endorsed the shared burden of proof in discrimination cases, ruling that the claimant “must bring elements of fact that show a difference of treatment and constitute a presumption of discrimination,” after which “the administration must prove, either the absence of a difference of treatment, or that this difference is justified by objective elements other than discrimination.”31 The statistics produced by OSJI were deemed admissible but insufficient evidence. Coupled with witness statements, the court ruled, they can establish a presumption of discrimination. Thus, the Court of Cassation created a new cause of action for victims of discriminatory policing. The court’s decision sent a strong political message. Not only did it confirm the growing consensus that contrôles au faciès are a reality in France, it also signalled that it is a problem that the state (and not just individual officers) is accountable for. The coverage from mainstream media unanimously called it a historic decision that set a judicial precedent (qui fait jurisprudence). To Slim Ben Achour, the ruling significantly strengthened the credibility of the campaign’s claims. “I think we won politically, in the sense that it’s not a matter for debate anymore—of course in some circles, on the far right, they will find justifications for racial profiling—but everybody now agrees that Blacks and Arabs are disproportionately stopped.”32 However, the symbolic strength of the ruling obscured important limitations. The court considered that the plaintiffs had provided sufficient evidence to establish a presumption of discrimination only when the evidence suggested that the police stopped only people of color. In the three cases where the court ruled the stop discriminatory, a witness had testified that he had watched the police unit for an hour and a half, during which they stopped only Arab or Black men, between 18 and 35, none of whom were arrested. In other cases, the court ruled that a presumption of discrimination was not established because of the absence of evidence that officers had stopped exclusively people of color on the day and in the 31 32

 Court of Cassation rulings, 9 November 2016.  Interview with Slim Ben Achour, 26 March 2017.

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space where the contested stop took place. The court’s implicit requirement of comparators—white people present in the same space at the same time, behaving in the same way, and not getting stopped—signals that “there is still an underlying requirement to prove intentionality,” to borrow the words of discrimination lawyer Emmanuelle Boussard-­ Verrechia.33 In addition, the court stated that if the police stop is conducted in a “sensitive” area, this is sufficient for the state to prove that the stop was based on objective factors. For example, the stops of two young Arab men who were sitting in front of their building talking in the suburb of Lyon, and that of a Black man who was stopped as he came out of his building, were not deemed discriminatory because the state argued that they took place in a sensitive neighborhood. In this way, the court excluded whole territories, vaguely defined as “sensitive,” from the protection against discriminatory stops. Because of these limitations, few people have successfully used this cause of action to hold the state accountable for discriminatory stops since 2016.34

6.8 2019–2020: Suing the State for Systemic Discrimination In 2019, the coalition launched a new civil lawsuit, in which 17 plaintiffs sued the state for “systemic discrimination,” arguing that the policies and practices of one police unit in Paris created a hostile environment for people of color and constituted “discriminatory harassment.” In this lawsuit, the activists took their legal arguments one step further—from contesting individual stops as discriminatory to challenging the policies and practices of a whole police precinct as systemic discrimination. This case started when, in 2013, OSJI and the lawyers got involved in a local mobilization in a gentrifying neighborhood of Paris, to support young people of color who were repeatedly stopped and subjected to verbal, physical, and sexual violence by a local police unit. The lawyers  Interview with Emmanuelle Boussard-Verrechia, 24 January 2018.  An important exception being the case of three high school students who were stopped for ID checks during a school trip and who won a lawsuit against the state in 2021. 33 34

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helped plaintiffs file a criminal complaint against 11 officers accusing them of physical assault, sexual assault, arbitrary detention, and racial discrimination. The lawsuit led to an exceptionally thorough criminal investigation, which included a trove of usually inaccessible police records. The investigation file revealed written orders given to the police unit to conduct “evictions” of “undesirables” (éviction des indésirables) in the areas where the teenagers hang out. In the police records included in the investigation, officers reported routinely evicting “undesirables”— young men of color and homeless persons—from public spaces, even when no offense or incivility was recorded (Boutros, 2018). To the activists and lawyers, the investigation file provided evidence that contrôles au faciès are not about “bad apples” or individual misconduct, but that there are top-down directives, from police chiefs, to target ID checks on specific populations deemed unwelcome in public spaces. Building on these records, the lawyers launched a civil lawsuit in 2019, in which they sued the state for grievous fault, arguing that the institutional policies of “evicting undesirables” are evidence of systemic discrimination. The criminal investigation, they argued, had revealed “a situation of cumulative and dynamic inequality resulting from the interaction of practices, decisions, individual or institutional behaviours, which have intentional or unintentional prejudicial effects on the group targeted.” These cumulative practices, they wrote, create a hostile environment for the plaintiffs that amounts to “discriminatory harassment.”35 In 2020, the Court of First Instance (civil chamber) ruled that there was insufficient evidence to prove systemic discrimination or discriminatory harassment. Nevertheless, the concept of systemic discrimination gained traction politically. In 2020, the Rights Defender issued an opinion in support of the plaintiffs, where he described “the accumulation of the facts” documented as “discriminatory harassment” that inflicts on young people an “intimidating, hostile, degrading, humiliating, and offensive environment.” He concluded: It is thus the sum of the practices documented, the repeated procedural violations against the group of young people of the neighbourhood of 35

 Case files.

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Maghrebin or African origin, that leads to the recognition of discrimination in its multiple forms, whether direct or indirect discrimination, or discriminatory harassment, creating a frame in which systemic discrimination takes hold: the cumulative effect of these behaviours creates a climate of exclusion and discrimination (Défenseur des Droits, 2020).

Thus, by the late 2010s, the activists had successfully introduced the concepts of systemic discrimination and discriminatory harassment in judicial and political discussions. This helped them expand their claims and promote the argument that police discrimination goes beyond individual officers who make biased decisions and involves institutional practices and policies.

6.9 2020: Renewed Political Debate, Persistent Inaction The year 2020 was marked by renewed public and political attention to policing and racism. In the wake of international mobilizations that followed the killing of George Floyd in the United States in May, activists and families of victims in France organized large demonstrations in multiple cities to denounce “police violence and racism.” Around the same time as the Rights Defender released his opinion condemning a Parisian police district for “systemic discrimination,” several media investigations uncovered overt racist speech in several police units and on social media groups of police officers, often with the knowledge of police chiefs.36 In November, the videos of the beating of a Black man, Michel Zecler, in his music studio by four police officers went viral, and several French celebrities publicly took a position against police violence. In this context, the question of discriminatory policing was brought to the forefront of the public debate, albeit with a focus on police violence rather than on ID checks. In June, Interior Minister Christophe Castaner organized a press conference about “the question of racism and  For example Streetpress, 27 October 2020, “Insultes sexistes et racisme ordinaire, plongée dans le groupe WhatsApp d’une brigade de police.” 36

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accusations toward the police” in which he promised “zero tolerance” toward racism in the institution. In addition to addressing the mounting criticisms of police violence, he spoke about ID checks. “I know that ID checks are sometimes perceived as targeted (ciblés)” he conceded, adding that police stops should only be conducted to prevent a breach of public order or investigate an offense, but should never be “an operation conducted on the basis of skin colour.” He promised to reinforce the use of body-worn cameras during ID checks and to improve police training.37 This marked the first time that an Interior Minister publicly hinted at the existence of discriminatory stops. In December, after Michel Zecler’s videos went viral, President Emmanuel Macron also addressed criticisms of police violence and racism. In an interview with the online media Brut, he admitted that contrôles au faciès are a reality in France, saying “today, when you have a skin colour that is not white, you’re much more likely to be stopped, because you’re identified as factor of risk, of problems, and this is unacceptable.” However, he added that there is no “systemic violence” or “systemic racism” in the police.38 Once again, activist organizing prompted governmental promises to tackle the issue, but failed to result in any concrete reforms. Following the speeches by the Interior Minister and President, right-wing politicians and police unions doubled down on a stance that rejected any criticism of police action as unacceptable, dangerous, and anti-­Republican. Police unions vocally expressed their “anger” at being criticized by the government, stating that the minister had “lost the confidence” of police officers. After giving some credit to activists’ claims, the government implemented policies that sought to appease police unions and ignored the activists’ proposals. Soon after his press conference, Christophe Castaner was replaced by hard-liner Gerald Darmanin, and in 2021, Macron’s government announced a host of reforms to respond to police unions’ demands, including by further expanding police powers.

 Christophe Castaner, 8 June 2020, “Conférence de presse au sujet de la question du racisme et de la mise en cause des forces de l’ordre.” 38  Le Président Emmanuel Macron répond aux questions de Brut, 4 December 2020, https://www. elysee.fr/emmanuel-macron/2020/12/04/le-president-emmanuel-macron-repond-auxquestions-de-brut. 37

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6.10 Conclusion Since the late 2000s, contrôles au faciès have become an issue of political debate in France, with presidential candidates promising reforms, Parliamentarians presenting bills to combat the practice, and France’s highest court condemning the state for discriminatory stops. This politicization of ID checks resulted from a campaign led by a coalition of transnational and national organizations, who combined three strategies of action. First, they collaborated with scholars to produce scientific knowledge quantifying disparities in police stops, thus making it more difficult for the government to deny the existence of discriminatory stops. Second, they launched a political advocacy campaign during the 2012 presidential election, which succeeded in imposing the issue on the national political agenda. Third, they worked with lawyers to develop an innovative litigation strategy based on civil law to sue the state for discriminatory stops and systemic discrimination. Combined, these three strategies succeeded in placing the issue durably on the political agenda. They led to a noticeable shift in the terms of the political debate, which went from governments systematically denying the existence of discriminatory stops to recognizing the problem but questioning the appropriateness of reform measures. In all three arenas—scientific, political, and judicial—the campaign was careful to develop a discourse that made visible the role that race plays in patterning ID checks, while aligning with the dominant anti-­ racialist ideology. This entailed framing the study’s findings in terms of “appearance-based discrimination” and calling for establishing stop forms without recording race or ethnicity. While this helped place the issue on the political agenda, it also made it vulnerable to criticisms of inefficiency. Despite repeated pledges to tackle the issue, the governments of François Hollande (2012–2017) and Emmanuel Macron (2017-) rejected the reforms proposed by activists, under pressure from police unions. Successive Interior Ministers argued that stop forms would add bureaucratic burdens on police work while being ineffective at combating contrôles au faciès. While the campaign undoubtedly changed the terms of the debate, in practice, policy and legal reforms continued to expand police powers, especially following the 2015 terrorist attacks, without reinforcing monitoring and accountability mechanisms.

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References Boutros, M. (2018). La Police et Les Indésirables. La Vie Des Idées. September 14. Boutros, M. (2020). Les mobilisations à l’épreuve de l’opacité policière en France. Lien social et Politiques, 84, 142–162. https://doi. org/10.7202/1069447ar Boutros, M. (2022). Antiracism without races: How activists produce knowledge about race and policing in France. Social Problems, spac011. https://doi. org/10.1093/socpro/spac011 Défenseur des Droits. (2012). Rapport Aux Relations Police/Citoyens et Aux Contrôles d’identité. Défenseur des Droits. Défenseur des Droits. 2017. Enquête Sur l’accès Au Droit Volume 1: Relations Police / Population, Le Cas Des Contrôles d’identité. Défenseur des Droits. 2020. Observations Devant Le Tribunal Judiciaire de Paris Présentées Dans Le Cadre de l’article 33 de La Loi Numéro 2011-333 Du 29 Mars 2011. Fassin, D. (2013). Enforcing order: An ethnography of urban policing (English ed.). Polity Press. Gauthier, J. (2015). Origines contrôlées: Police et minorités en France et en Allemagne. Sociétés contemporaines, 97(1), 101. https://doi.org/10.3917/ soco.097.0101 Goldberg, D.  T. (2009). The threat of race: Reflections on racial neoliberalism. Wiley-Blackwell. Goldston, J., & Neild, R. (2006). Ethnic profiling fails Europe. Open Society Foundations. June 26. Hajjat, A. (2022). The wretched of France: The 1983 March for equality and against racism. Indiana University Press. Jobard, F. (2002). Bavures Policières: La Force Publique et Ses Usages. Découverte. Jobard, F., & Lévy, R. (2011). Racial profiling: The Parisian police experience. Revue Canadienne de Criminologie et de Justice Pénale. Jobard, F., Lévy, R., Lamberth, J., & Névanen, S. (2012). Measuring appearance-­ based discrimination: An analysis of identity checks in Paris. Population (English Edition), 67(3), 349. https://doi.org/10.3917/pope.1203.0349 Jobard, F., & de Maillard, J. (2021). Identity checks as professional repertoire. In J. de Maillard & W. G. Skogan (Eds.), Policing in France, advances in police theory and practice series. Routledge, Taylor & Francis Group. Monjardet, D. (1985). Police et sociologie: questions croisées. Déviance et société, 9(4), 297–311.

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Monjardet, D. (2005). Gibier de recherche, la police et le projet de connaître. Criminologie, 38(2), 13. Open Society Justice Initiative. (2009a). Ethnic profiling in the European Union: Pervasive, ineffective, and discriminatory. Open Society Institute. Open Society Justice Initiative. (2009b). Profiling minorities: A study of stop-and-­ search practices in Paris. Open Society institute. Open Society Justice Initiative. (2013). Equality betrayed: The impact of ethnic profiling in France. Open Society Foundations. Simon, P. (2014). Contested citizenship in France: The republican politics of identity and integration. In Developments in French politics (pp. 203–217). Palgrave Macmillan. Simon, P. (2015). La Lutte Contre Les Discriminations n’a Pas Eu Lieu: La France Multiculturelle et Ses Adversaires. Mouvements, 83(3), 87–96.

7 Human Rights, Criminalisation of Migrants and Racism Debates: Public Discussions About Police Stops and Ethnic Profiling in Finland Suvi Keskinen and Markus Himanen

7.1 Introduction Public discussions about ethnic and racial profiling emerged in Finland during the first decade of 2000s, with a focus on internal immigration policing in city spaces. However, studies and witness reports show that selective controls based on ethnic and racial criteria have been part of the everyday experiences of several minorities and migrant communities even before the topic became of interest for the media. In particular, the Roma minority has suffered from extensive police control and surveillance since the nineteenth century. Until 1883, legal sanctions for vagrancy were harsher on the Roma than on other itinerant people and, even after the discriminatory formulations were removed, the vagrancy legislation was

The work for this chapter was funded by Nordforsk through the research project Social Exclusion, Polarization and Security in the Nordic Welfare State (SEPOS).

S. Keskinen (*) • M. Himanen University of Helsinki, Helsinki, Finland e-mail: [email protected]; [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 J. de Maillard et al. (eds.), The Politicization of Police Stops in Europe, Palgrave’s Critical Policing Studies, https://doi.org/10.1007/978-3-031-35125-9_7

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used to control the Roma minority (Pulma, 2006; Tervonen, 2010). The vagrancy law of 1936 included sanctions ranging from warnings to work camps and forced labour in institutions, which were only removed from the law in 1971. The police were a central control agent of the implementation of the law, which meant that the relations between the police and the Roma minority remained strained throughout the twentieth century. The study by Grönfors (1979) documented the experiences of the Roma community as the targets of unjust treatment by the police, highlighting its decades long history. Studies on the experiences of migrants from African and Middle Eastern countries have also reported distrust towards the police and events interpreted as racial profiling (Hautaniemi, 2004; Egharebva, 2005; Saari, 2009). Nevertheless, neither the studies nor the witness statements by minority communities led to public debates concerning ethnic profiling or police actions towards racialised minorities. It was only when critical discussions about immigration controls emerged in media and politics after 2008 that the long-term experiences of the Roma community became more broadly addressed publicly. In this chapter, we examine the public debates on ethnic profiling and police stops in 2008–2021, focusing on its different phases, framings and central actors. We also analyse the legislative effects of the public discussions. Finnish authorities and media actors have adopted the term ethnic profiling to refer to the phenomena that in research is usually discussed as racial profiling. We discuss the phenomenon as ethnic and racial profiling, using this as an umbrella term that refers to selective and racialising police practices that target specific groups based on ideas of race, ethnicity, religion or nationality, and by doing so, (re)produce social hierarchies. This chapter argues that the discussions emerged from a top-down perspective, with authorities and international non-discrimination bodies as main actors, to later involve also the perspectives of civil society organisations, individual persons targeted by racialised policing, journalists and researchers. Through this shift, the debates have turned from a human rights perspective on ethnic profiling to cover a broad range of racism in the police. This chapter first introduces the theoretical starting points of the study, as well as the material and method used. We then identify and analyse three phases of the public debates: (1) the emergence of public

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discussions on ethnic profiling, (2) the legislative change in 2013–2015, (3) the increasing media focus on ethnic profiling by the police after the legislative change and the extension of the debate to cover a broader range of racism in the police force.

7.2 Enforcing Order in the Racial Welfare State Trust towards the police is very high in Finland, as it is in the other Nordic countries (Jackson et al., 2011). Recent studies indicate that an overwhelming majority of Finns have high trust in the police—surveys conducted in 2010 show that 87% and as many as 95% in 2018 trusted the police either very much or relatively much (Vuorensyrjä & Fagerlund, 2018). This is more than those who trust the Finnish judicial system and far more than trust in politicians or the European Parliament. Even migrants have high trust in the Finnish police, although this is reduced when they reside in the country for a longer period. The Roma minority report clearly lower levels of trust in the police than the majority population (Weiste-Paakkanen et  al., 2018). Overall, trust in authorities and public institutions is high in Nordic welfare states that have built their policies on universal welfare benefits and broad public services. Although the welfare state has been restructured in the wake of neoliberal policies since the 1990s (Schierup et al., 2006; Kamali and Jönsson, 2018), leading to an increase in the role of private actors even in the security sector (Saarikkomäki, 2017), the idea of the welfare state as a source of egalitarian policies and trustworthy institutions has remained powerful. While such high trust clearly has its benefits, it has nevertheless meant that bringing critical perspectives on police behaviour to the political agenda has been difficult and racism in the police has until recently received little attention. In contrast to approaches that emphasise the egalitarianism of the Nordic welfare model, critical scholars have argued that the welfare state is a site for ethnicised, racialised and classed exclusions. The welfare state has been described as Janus-faced, providing generous benefits for those

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deemed deserving and belonging but interventionist towards those perceived as deviant ‘others’ (Barker, 2013). In an effort to theorise on the role of racism in law enforcement, the concept of the ‘racial welfare state’ (Schclarek Mulinari & Keskinen, 2022) has been developed. It draws upon the idea of the racial state (Goldberg, 2002) as a site for producing and reproducing racially shaped living conditions, places, groups, inclusions and exclusions and access to resources. The concept ‘racial welfare state’ further refers to the specific features of racialisation, exclusionary processes and subordinated belongings in the Nordic countries. Notably, these include the colour-blindness ideologies that substitute ‘race’ with the euphemistic language of ethnicity and cultural differences (Hübinette & Lundström, 2014) or deny the existence of racism on the basis of a commitment to universalist principles (Keskinen, 2011). Moreover, the analysis of the racial welfare state highlights the connections between policing and other welfare state practices, for example in reports of how the collaboration between the police and schools or social work include elements of scrutiny and criminalisation (Schclarek Mulinari & Keskinen, 2022). The role of the police is central in enforcing the current social order (Fassin, 2013)—in our case, the racial and class orders of the Nordic societies. Despite the increasing migration from non-European countries in recent decades, Finland and the other Nordic countries continue to imagine their national community as white and relatively homogeneous (e.g. Loftsdóttir & Jensen, 2012; Keskinen et al., 2019). While this image has been challenged in the public sphere, especially by those racialised as non-white ‘others’, it is still relatively widespread and reproduced in many institutional practices. The internal immigration controls by the police are often built on notions of Finns as white people, targeting those racialised as non-white as perceivably ‘foreigners’ (Keskinen et al., 2018). Being targeted by selective police controls creates distrust and tensions in the relations between the police and especially young racialised minority men (Schclarek Mulinari, 2017; Haller et al., 2020).

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7.3 Material and Method This chapter builds on material gathered from (1) the preparation process of the legislative change in 2015 that resulted in the ban on ethnic profiling being included in the Aliens law and (2) media discussions on the police, ethnic profiling and internal immigration controls in 2008–2021. The legislative material consists of documents produced by the Finnish government and authorities between 2008 and 2015. It includes administrative memos, parliamentary protocols, committee statements, policy papers and statements from different authorities, such as ministries and rule-of-law bodies. Moreover, the material consists of reports by the Ministry of the Interior concerning immigration controls and prevention of irregular migration; police instructions and reports; press releases; and official decisions on complaints concerning ethnic discrimination and internal immigration controls. The documents were obtained through searches in public archives or have been specifically requested from the relevant authorities. The news articles were collected from the online archives of the largest national newspaper in Finland, Helsingin Sanomat (HS) and the National Broadcasting Company Yleisradio (YLE) between 2008 and 2021, with the search words ‘ethnic profiling’ and/or ‘control of foreign nationals’. Before the law was accepted, Helsingin Sanomat had published 29 relevant news articles between 1 January 2008 and 1 May 2015. After the law was accepted, from 2 May 2015 until 15 November 2021, the newspaper had published 71 articles. The National Broadcasting Company had published 35 relevant news articles between 1 January 2008 and 1 May 2015, and 153 articles after the law was accepted up until 15 November 2021. The total media material thus consists of 288 articles. The material has been analysed thematically, paying attention to the main themes in the public discussions, as well as the central actors in the three studied phases. The analysis has sought to identify the changes in the public discussions and the interplay of the actors in each of the phases. Moreover, the dominant frames of discussion have been identified in each phase. Building on critical frame analysis (Verloo & Lombardo, 2007; D’Angelo & Kuypers, 2010), we have examined the ways that

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police stops and ethnic profiling have been interpreted and given meaning. With frames, we refer to problem formulations, interpretations and evaluations that create specific understandings about the social world. The analysis has paid attention to problem formulations, explanations, suggested solutions and the construction of subjects.

7.4 The Emergence of Public Discussion on Ethnic Profiling in Police Stops The relations between the police and racialised minorities, notably the Roma, have been covered by the Finnish media every now and then during the recent decades, but they were not addressed as ethnic or racial profiling. The issue emerged in public discussions from 2008 onwards in connection with news on internal immigration policing. Internal immigration policing includes police stops and identity checks based on immigration regulations and policing operations targeting potential immigration law infringements, such as ‘illegal residence’ within the national territory, beyond the immediate border zone.1 Between 2008 and 2013, a few public outcries by both national and international human rights and non-discrimination bodies questioned the legitimacy and legality of immigration operations carried out by the police. With the development of the Schengen Area and the related dispersion of borders to both outside and inside of national borders, city spaces have turned into sites where policing increasingly functions as a bordering practice (Balibar, 2004; Yuval-Davis et al., 2018). In the first public debate in 2008, the Minority Ombudsman identified the patrolling and ID-checks by the police in city spaces as ethnic profiling and expressed worries over the risks of it in internal immigration policing. Since then, the term ethnic profiling has been used in Finnish public discussions, instead of for example racial profiling.

 The official term in the Finnish law is ‘ulkomaalaisvalvonta’, which can be translated as ‘control of foreign nationals’ or ‘monitoring of aliens’. In the Finnish Aliens Act, the power to conduct such controls is granted to the police and the Finnish border guard. 1

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Helsingin Sanomat reported on Tuesday that the police select those suspected of being illegally in the country for control based on visual and oral observations, when they stop people in, for example, shopping centres, railway stations and ports in Helsinki and Vantaa. [Minority Ombudsman] Suurpää thinks that these kinds of acts “are close to the concept of ethnic profiling”, because being targeted by the control act depends mainly on one’s appearance. According to the European Commission against Racism and Intolerance, ethnic profiling should be prohibited in policing or at least it should be defined on a case-by-case basis in a very detailed manner. (HS 11.3.2008)

This citation shows the central actors driving the question in the first phase of the public discussion—the Minority Ombudsman2 and the European Commission against Racism and Intolerance (ECRI). These actors both name the phenomenon as ethnic profiling and provide views on how police controls should be regulated. Journalists also appear as actors through their stories about police actions suspected to be at odds with human rights regulations. The Minority Ombudsman is the link between several actors. Firstly, individual persons, who have been stopped and, according to the news item, have turned to the Ombudsman to inquire about the legality of the police stops. Secondly, the Ombudsman seeks to influence other Finnish authorities on the need to tackle the issue. Thirdly, it is a public human rights body with international connections to, for example, ECRI, to which it refers to gain legitimacy for the cause. The public discussions in the following years on the matter indicate similar patterns. In 2011, YLE, the Finnish national broadcasting company, reported on several cases in which ethnic profiling was suspected to have taken place and provided space for the Minority Ombudsman to express concerns about the practices of the police and border guards in relation to ethnic profiling. Two years later, a European Commission  The Minority Ombudsman (since 2015 the Non-Discrimination Ombudsman) is an official, external accountability and complaint body, which has a legislated task to promote equality and prevent and tackle discrimination in Finnish society. The Ombudsman has broad discretionary powers to decide how it proceeds with individual complaints on discrimination. It can request reports of a party suspected of discrimination, give opinions on individual cases concerning discrimination and assist in court cases, but it is not able to give binding judicial decisions. 2

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against Racism and Intolerance (ECRI, 2013) report pointed out that there is a risk of profiling of visible minorities in Finland and urged the Finnish government to rapidly act to prevent such cases and to enhance the resources of the Minority Ombudsman’s office. The ECRI report especially mentioned the formulation of the Aliens Act, which requires foreigners to present their travel or ID-documents to the police and other authorities when asked. While these events raised some discussion in the media, the interest soon died out. None of the covered police stops became frequently reported individualised cases. Instead, the discussion was largely framed as a legal and human rights question that was to be taken care of by the authorities. To summarise, the main actors in the emergence phase were the Minority Ombudsman and the European Commission against Racism and Intolerance (ECRI), which introduced the term ‘ethnic profiling’ to Finnish discussions and pushed for the question to be tackled by the government. Journalists were at times active in raising the questions in public, but their interest did not last for long. The main frame of discussion was human rights and accountability to international regulations.

7.5 The Debate on the Ban of Ethnic Profiling and Internal Immigration Policing 2013–2015 Although the public discussions were rather short lasting and less intense, they bore effect as the Finnish government carried out a legal reform process to regulate the control of foreign nationals in 2013–2015. The end result was a compromise between the security-oriented and human rights-oriented approaches. Two new sections were established in the Finnish Aliens Act, which defined the legal limits to police checks regarding immigration status. First, a prohibition on ethnic profiling was introduced stating that ‘supervisory actions should not be motivated solely or mainly by virtue of a person’s real or assumed ethnic origin’ (UL, 2004, 129 a §). Second, the police and border guards were given more powers

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than earlier as they gained the right to conduct searches at workplaces and business premises. Although the Minority Ombudsman and the Parliamentary Ombudsman of Finland3 had recommended that the police should register stops and the reasons for identity checks, no such requirements were included in the law. Since the police do not register all conducted stops and the existing statistics are not publicly available (Keskinen et  al., 2018), evaluating the extent and targeting of police stops is difficult. The change to the law was a result of the interplay of several authorities and the influence of international non-discrimination bodies. The actual starting point of the legal change process was the decision of the Parliamentary Ombudsman in 2011, stating that the police and border guard do not have the authority to enter private spaces to control foreign nationals under the current legislation. In order to get this jurisdiction for the police to enter private spaces, such as restaurants and workplaces, the Ministry of the Interior started a process to reform the Aliens Act. The Minority Ombudsman’s critique about the risks of ethnic profiling in police actions was recognised and attention was paid to the criticism in the report of the European Commission against Racism and Intolerance (ECRI, 2013). In the Parliamentary discussions about, and the expert statements during the preparation of the legal reform, two central frames were visible (see also Himanen, 2021, pp. 7–10). The first frame connects internal immigration policing to security and crime, while the second addressed fundamental rights and non-discrimination. In the bill, the government states that the main aim of internal immigration policing is the prevention of irregular immigration. Irregular migration is presented as a part of a wider continuum of crimes that include ‘smuggling, human trafficking, labour exploitation, and procuring’ (HE, 2014, p.  9). Likewise, the Ministry of the Interior argues that the Schengen Agreement and the abolishing of border controls requires the compensation of this loss of control by enhancing internal immigration controls (HE, 2014, p.  3).  The Parliamentary Ombudsman is along the Chancellor of Justice the main rule-of-law institution in Finland. The primary task of the Ombudsman is the oversight of legality of the actions of public officials and institutions. It has the power to prosecute, reprimand, give opinions and recommendations. 3

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Thus, the framing is connected to the criminalisation of migration and questions of societal security (Aas, 2011). In the Parliament, some MPs questioned the need to restrict the rights of foreign nationals through police controls. For example, an MP from the Green party wondered whether immigration control operations—in which police officers try to single out undocumented migrants from groups of people by asking for papers in public spaces—were necessary and useful in a ‘modern’ society. Several parliamentarians defended the practice of ethnic profiling. Representatives of the right-wing populist party (True) Finns employed what they perceived as ‘common sense’ arguments: when the police are looking for a suspect, they should be able to use all available tips and descriptions, without the fear of being accused of ethnic profiling. One MP from the governing Conservative party argued for practices that include ethnic profiling as a tool for the police: it makes sense, on the point of view of the efficiency of the police work, that control of foreign nationals is directed towards those humans, who look like foreigners based on external marks. (PTK, 2014, p. 4)

This citation vividly exemplifies the intertwining of whiteness and Finnishness that has been identified as a central characteristic of the ‘racial welfare state’ (Schclarek Mulinari & Keskinen, 2022). It is effectively upheld by parts of the political elite, as well as by the institutional practices of the police, despite the stricter regulations concerning ethnic profiling in the legislative reform. This can be understood as colour-blind racism, which refers to the reproduction of racialising practices and structures under the ideological banner of colour-blind ideologies (Bonilla-­ Silva, 2018), that is, claiming not to see race or treating people equally as ‘humans’ while simultaneously creating racialised hierarchies on basis of euphemisms, such as ‘look like foreigners’. To conclude, the law was a compromise between security-oriented rationality and thinking based on non-discrimination norms. The reform resulted in increased legal regulation of internal immigration policing, but also enhanced the powers of the police and border guards to conduct immigration controls. The concerns raised by legal supervisors and international bodies on the reasonableness of the stops and checks, police

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accountability and efficiency of the immigration controls were not followed through. The central actors in this phase were governmental authorities responsible for the preparation of the law (Ministry of the Interior, Minority Ombudsman), the government and MPs from different political parties. Experts, who were mostly public officials and belonged to the white majority, dominated the proceedings and minority communities targeted by ethnic profiling were in practice excluded from the policymaking process: for example, no racialised minority or antiracist NGO were consulted during the administrative or the legislative process (Himanen, 2021, p. 12). The main frames in the discussions were related to (1) the criminalisation and securitisation of irregular migrants and (2) human rights and non-discrimination.

7.6 Heightened Media Focus on Police Stops and Ethnic Profiling Large-scale media coverage of cases suspected to include ethnic profiling and broader public discussions about police stops have only become prevalent in the years following the legislative change. This is most likely due to the fact that the topic of ethnic profiling became gradually more familiar to a wider audience, who do not have personal experience of ethnic and racial profiling, following the outcries of the Ombudsman and the legal reform. After the legislative change, personal witness stories have spread through social media and new research results have been covered by news media. In this phase, the discussions have shifted from a focus on administrative and legal regulations to the everyday lives and experiences of those targeted by racialising police practices. In addition to the non-discrimination frame, adopted by human rights advocates, a new frame of everyday racism has emerged in public debates when addressing the topic. In the autumn 2015, the number of asylum seekers increased rapidly in Finland, following the Summer of Migration in Europe (Bojadzijev, 2018). The arrival of 32,000 asylum seekers would not be a huge number in international comparison, but in Finland it meant that the numbers

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were ten times higher than in previous years. Questions of migration, security and the future of the nation were high on the political agenda and in social media discussions, as well as in the activities of extreme right street patrols (Keskinen, 2018). In the spring and summer of 2016, the number of asylum seekers had decreased, but politicians and the media expressed worries over the increase of undocumented migrants. In this situation, issues related to internal immigration controls by the police and border guards again became a topic of media coverage. In April 2016, more than 1000 persons were reported to have been stopped in the Helsinki Metropolitan area in such control actions and asked for identity documents. According to the police, the control of foreigners has not increased as such, but several intensive surveillance raids have been conducted after each other.—We are just doing routine controls. This has been going on for a long time, [chief inspector] Sinivuori says. The operative leader of the intensive surveillance raids, chief inspector Henri Helminen says that the focus of the controls has now shifted from the border checkpoints to the inland areas.—The situation has clearly changed during the last year, as we have received so many more foreigners. There is now a volume [of foreigners] in the interior too. (YLE 20.4.2016)

As the citation shows, the security and border control frame that characterised the Parliamentary discussions around the legislative change of the Aliens Act, resulting in the ban on ethnic profiling, is also typical for the police actions and their legitimation in public. However, social media debaters and representatives of the Non-Discrimination Ombudsman questioned the validity of the police stops. The latter had been contacted by several persons stopped by the police and pointed out that the police were not allowed to use ethnic profiling in their controls. According to the law, the police have the right to check if a foreigner is legally residing in the country. The recent intensive immigration controls have, however, attracted condemnation on social media. – The police need to ensure that they do not use ethnic profiling. It is completely old-­ fashioned to make judgements on the basis of skin colour in today’s Finland. We have Finnish citizens with varying skin colours, says c­ onsulting

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officer Robin Harms from the Non-Discrimination Ombudsman’s office. (YLE 21.4.2016)

The Ombudsman’s representative is again framing the issue as a question of equal treatment and raising concerns of how assumptions of white Finnishness can lead to discriminatory effects. The Ombudsman also asked the police to give an account of the operations and their legality. Even according to this account provided by the police, the raids targeting a large group of people only found a few persons residing illegally in the country. In July 2016, ethnic profiling and immigration policing dominated the news headlines following the identity check of two family members of a famous rap artist. Two police officers in civilian clothes, representing the Immigration Unit of the Helsinki Police Department, stopped and demanded identity documents from two Black women in Helsinki city centre on a Friday night. They were patrolling in the city centre to conduct control of street level sex work and internal immigration control. The younger woman, who is a Finnish citizen, refused to show her passport. The situation escalated into a physical struggle and, as a result, both women were handcuffed. The events became public through a social media post by James Nikander, the son and brother of the stopped women and a popular Finnish rapper, with the artist name Musta Barbaari (Black Barbarian). Nikander regarded the events as humiliating and demanded the police respect human rights. The social media post was widely circulated, followed by a public outcry, and mainstream media covered the story for a week. The events led to a police investigation both against the police officers and the stopped women. The prosecutor decided to drop the case against the police, arguing that the police had a legal right to conduct the identity check and the women were obliged to follow the orders of the police. The charges against the two women, however, resulted in a conviction of resisting the police officers and a fine (HS 12.12.2017). In these processes, the defence attorney’s argument that the police conducted illegal ethnic profiling, when stopping the two women, was not considered valid. However, the women also made a complaint to the National

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Non-Discrimination and Equality Tribunal of Finland,4 which concluded that the police were guilty of ethnic profiling and of breaching the prohibition on discrimination in the case of these two women (YLE 1 February 2019). The Police Department had admitted that the skin colour of the women was one of the reasons for the identity check. The police officers justified the identity check stating that, based on their experience, foreign women practice street prostitution in this urban area, especially in the evenings and early mornings. They denied discriminating against the women but admitted that their actions were partly influenced by the fact that the women were Black. The tribunal ruled that the officers practised ethnic profiling and discrimination and gave Helsinki Police Department a conditional fine of 10,000 euros. However, the Helsinki Administrative Court later annulled this conditional fine. In the vote about the decision, two of the three judges in the Court were in favour of annulling the fine. They argued that the police had a legal duty to control foreigners and prostitution, thus the actions had an acceptable aim. They also argued that the police have the right to use physical appearance as one reason for the stops and that other matters were decisive for the identity check in the case at hand. The Court largely followed the reasoning of the police, which Helsingin Sanomat describes in the following way: Control of street prostitution is targeted at persons, who spend time in these areas without an easily understandable reason, the police continued. The Police Department emphasised that the dispute has broader implications for how the police can conduct controls of foreigners and prostitution in future. According to the Department, there are no surveillance methods that would allow the selection of persons residing illegally in the country from a mass of people without directing targeted and premeditated surveillance methods at them. (HS 26.4.2021)

The case was finally settled by the Supreme Administrative Court, which ruled in favour of the arguments presented by the National  The Tribunal is a judicial body appointed by the Finnish government, the task of which is to give legal protection to those suspecting discrimination and to supervise on matters related to the non-­ discrimination and equality legislation. 4

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Non-Discrimination and Equality Tribunal of Finland (YLE 8.9.2022). It stated that the police could not present other reasons for stopping the women and was guilty of ethnic profiling. The decision and the conditional fine that the Tribunal had issued now became legally valid. The decision-making process can be interpreted as a struggle between the non-discrimination frame, promoted by the Ombudsman and other human rights authorities for more than a decade, and the security and criminalisation frame, upheld by the police but also several politicians, as the previous section shows. The decision by the Supreme Administrative Court was at least a temporary victory for the non-discrimination frame and a challenge to the dominant position of the security and criminalisation frame, which has allowed for practices including ethnic and racial profiling to be part of policing. The decision by the Supreme Administrative Court did not result in broad public attention, but the Non-Discrimination Ombudsman immediately commented on its importance. Future years will show what kinds of actions the Finnish police will take to address the implications of the decision. Even other incidents related to police stops and identity controls have featured in media and raised concerns of ethnic and racial profiling. In the winter of 2018, the police performed identity checks and other control acts in East-Helsinki at a shopping centre called Puhos, mainly consisting of small shops run by racialised minority entrepreneurs. The shopping centre is also a vibrant meeting hub for many who belong to racialised minorities due to the many restaurants and cafés, as well as a mosque, located in the building. The organisation Badbaado, working with youth activities, collected feedback from persons stopped in the raid and criticised the police for targeting only racialised minorities. They also mentioned previous experiences of the police focusing selectively on stopping cars that were driven by racialised minority persons around the Puhos shopping centre. The police denied using ethnic profiling and stated that the over 200 persons they conducted identity checks on included both ‘foreigners and Finns’ (HS 19.2.2018). Moreover, researchers have brought questions of ethnic and racial profiling to the public sphere. When the only academic study on ethnic and racial profiling (Keskinen et  al., 2018) was published in spring 2018, showing that ethnic profiling is commonly experienced by racialised

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minorities in city centres and busy traffic hubs, its results were widely covered by media. The media discussions largely focused on the experiences of ethnic and racial profiling by people belonging to racialised minorities, while questions of police practices or institutional racism, also covered in the research report, were less frequently addressed. While the research results did not lead to any immediate actions by policy makers, they have often been referred to when questions of ethnic and racial profiling in the security sector have become the target of public interest. To conclude, the public discussions after the legal reform have been more extensive than before or during it. When discussing ethnic profiling, the focus has more often been on individual cases and the scope of actors involved in the discussions has broadened, compared to the previous two phases. The police have been a central actor in the debates reproducing the security and legality frame and, to some extent, supported by legal authorities. However, the police actions have been critically evaluated by other authorities, such as the National Non-Discrimination and Equality Tribunal of Finland and the Supreme Administrative Court. The Non-Discrimination Ombudsman, journalists, civil society organisations and researchers have raised issue concerning ethnic and racial profiling. The struggle between the non-discrimination frame and the security frame has continued to characterise the public discussions, and gradually a framing grounded in the everyday experiences of racialised minorities has gained foothold in the debates, largely due to the impact of social media and its interplay with news media.

7.7 Police Racism in Spotlight and the ‘Disciplining’ of the Roma During the third phase, a shift towards connecting police stops and ethnic profiling to questions of racism and racialising practices within the police has taken place. Everyday experiences of racism have been highlighted and questions about police racism have been raised in media. However, the police have been able to counteract such interpretations and reinstalled its framing of the topic—at least so far.

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The most widely covered news about police racism took place in June 2017, when the discussion in a social media group by the police reached the headlines of both national and international media. The news article from which the media attention sprung reported ethnic profiling in police stops, as well as providing examples of widespread racist language and disrespectful postings about asylum seekers spread in a Facebook— group comprised of 2800 police officers. The group was informal but brought together over one third of Finnish police officers. The verbal abuse and racism in the group had taken place for several years, without the moderators of the group taking action against the racist behaviour. The examples of racism were grave, including for example claims of African people’s genetic heritage being the reason for their problems all over the world and scornful comments on the suicide of an asylum seeker (Pietarinen, 2018). The racism of the police was publicly discussed and largely condemned, but no profound actions followed. An investigation of the texts in the Facebook-group was initiated, but the prosecutor evaluated that there were not enough grounds for raising charges against the police officers. Two police officers received notices about their behaviour, but overall the message from the police to the public was that there was ‘zero-tolerance’ towards racism and hate speech in the police (HS 5.7.2017). In June 2020, discussions about police violence were addressed in connection with the Black Lives Matter demonstrations in Finland and internationally. Some news items focused on ethnic profiling and racism in the Finnish police, but this was not the main topic of the media coverage of the demonstrations. The Finnish BLM-activists and groups organising Afro-Finns wanted to place questions of structural racism on the political agenda in Finland, but the campaign’s focus was on schools, workplaces and other areas of society, and less so on the police. Nevertheless, inspired by the Black Lives Matter demonstrations, the National Broadcasting Company conducted investigative journalism about complaints and reports of offences against the police during 2018–2020. The journalists also provided space for witness statements and videos by racialised minority persons subjected to police stops and brutal treatment (YLE 8.5.2021). The witness statements and videos included racist abuse and threats of deportation. The journalists also

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interviewed police officers, who confirmed that similar language usage took place within the police and that the witness statements were not exceptional. The journalists also examined the results of the complaints and reports of offence to the accused police officers, finding that they rarely lead to actions and, when they do, the result is usually a warning. Furthermore, the Helsinki Police Department was investigated about its control measures towards the Roma minority. The department admitted collecting information about the Roma during 2013–2015 and, to some extent, until 2017, making notes on an internal platform about the movements, vehicles, weapons and groups of Roma people in the Capital area. Members of the Roma community were stopped while driving (see also Keskinen et al., 2018) and their personal details were registered in the internal platform. The Helsinki police denied that the action, titled KURI 1 (Discipline 1), included ethnic profiling, arguing instead that it was necessary for the preventive work related to conflicts and violence among different Roma families. One Roma organisation was cited questioning the police logic and argumentation. Following the news, the National Police Board in Finland asked the Helsinki Police Department to provide a report on the matter. When the department’s report was submitted, the National Police Board decided to declare it secret. However, the Helsinki Police Department published the report and strongly argued for its view in the public sphere. At this point, the news coverage mainly reported the arguments of the police department and their conclusion that the practice was not about ethnic profiling. The Non-Discrimination Ombudsman initiated an inquiry about the registering practices and concluded that they were directed towards a large part of the Roma community and created an assumption of discrimination. The Ombudsman advised the Ministry of Interior and the National Police Board to continue to investigate these practices and discuss the matter with the Roma community (Non-Discrimination Ombudsman 2021). A repeated pattern characterises the cases discussed above. At first, the newsworthiness is found in accusations against the police concerning racist speech or actions. The frame at this point is related to racism and ethnic profiling. After an investigation by the police themselves—the National Police Board or a local police department—the matter is settled

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by stating that the case was not about racism or that it was a problem of a few ‘bad apples’ among the police, after which the case is laid down and the media attention disappears. In the end, the police frame of justified practices and non-discriminatory behaviour—a postracial denial of racism (Goldberg, 2009)—is widely circulated by the media. No further questioning takes place, until the next case involving suspicions of racism is announced. However, an exception to this general trend is posed by the investigation and statement by the Non-Discrimination Ombudsman, who critically investigated the registering practices titled KURI1. The Ombudsman’s clear stand about an assumption of discrimination being created may have effects on police practices in future. Nevertheless, the statement was not widely covered by media and did not lead to further public debates. It is remarkable that the media coverage of ethnic and racial profiling has increased over time and, more recently, has also been connected to racism. Although the framing of the actions presented by the police has often proven to be stronger in media than the framing by those criticising the police, its hegemony has been challenged on several occasions.

7.8 Conclusions The three phases of the public discussions show a gradual intensification of the debate, a large part of it taking place after the legal reform that introduced the ban on ethnic profiling to the Aliens law. Before and during the legal reform, the discussions were dominated by the Minority Ombudsman and other authorities, as well as by politicians in the Parliament and international actors, such as ECRI. After the legal reform, the public discussions have developed into debates, in which the police, represented by the National Police Board of Finland and by local departments, argue their case against the accusations of ethnic profiling and racism. The actors in this later phase have also multiplied, as journalists, social media debaters, racialised minority organisations, researchers and individual complainants have become more visible in challenging police actions. Although the news has made references to earlier similar

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incidents, the media interest has died out after a while and the framing of the police has remained strong. The frames of the public debate have, to some extent, changed during the three periods. The focus in the beginning was on the human rights and non-discrimination frame, which was contrasted to the security and immigration control frame. After the legal reform, the non-­discrimination frame has continued to be strong, but it has partly been replaced with a frame that focusses more explicitly on the issue of racism. The police framing of the matter has sought to build legitimacy through the security frame, but also needed to respond to the criticism of racism, which has largely resulted in a postracial denial of racism (Goldberg, 2009) frame. The only media covered case of racial profiling that has focused on specific persons has been the stopping and handcuffing of the family members of the rapper James Nikander. The case was widely circulated in media, but it has led to a prolonged legal process, the results of which are yet to be seen. The public interest towards the case has decreased during the years and with the complicated turns of decisions. While the case was interpreted as ethnic profiling by the National Non-Discrimination and Equality Tribunal of Finland, the decision was overruled by a higher administrative court, before finally being ruled as discriminatory ethnic profiling by the Supreme Administrative Court. The reform of the Aliens law and the following media debates have led to a few changes in police practices. The National Police Board has developed new guidelines for the control of foreign nationals. Since 2018, no large-scale immigration control raids in public spaces have taken place. This does not necessarily mean that the frequency of the controls would have declined: internal immigration policing is still conducted as part of other police work, notably traffic controls, by smaller operations such as during inspections of private businesses (e.g. restaurants), as well as controls by the Border Guard. However, the monitoring of police acts or other forms of external accountability measures have not been developed, nor called for in public discussions, which makes it hard to evaluate the actual change of practices. Although new demands have been placed on the police to ensure non-discriminatory treatment, it seems that radical changes in police practices have yet to take place.

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The Finnish debates exemplify well the difficulties of addressing racial profiling and racism in the police in a racial welfare state context, where trust towards the police and authorities in general is very high and the colour-blindness ideology is dominant. The legitimacy of police actions is high and their role in enforcing order is taken for granted by many members of Finnish society. Our analysis has shown that the hegemony on which the social order largely rests is, however, not without frictions. Criticism towards racialising practices in police stops and racism within the police force has intensified during the studied period. The police has also had to extend its framing from a mere security frame to include also a postracial denial of racism, when confronted by criticism about racism more frequently. The racial welfare state has proven to be an enduring structure, but the range of actors challenging some of its building blocks has increased in recent years.

References Aas, K. F. (2011). Crimmigrant’ bodies and Bona Fide travellers: Surveillance, citizenship and global governance. Theoretical Criminology, 15(3), 331–346. Balibar, E. (2004). We, the people of Europe? Princeton University Press. Barker, V. (2013). Nordic exceptionalism revisited: Explaining the paradox of a Janus-faced penal regime. Theoretical Criminology, 17(1), 5–25. Bojadzijev, M. (2018). Migration as social seismograph: An analysis of Germany’s ‘Refugee Crisis’ controversy. International Journal on Politics, Culture and Society, 31, 335–356. Bonilla-Silva, E. (2018). Racism without racists (5th ed.). Rowman & Littlefield. D’Angelo, P., & Kuypers, J. (2010). Doing news framing analysis: Empirical and theoretical perspectives. Routledge. ECRI (European Commission against Racism and Intolerance). (2013). Report on Finland (fourth monitoring cycle). 9 July 2013. Egharebva, S. (2005). An investigation into African Immigrants' experiences with the police in Finland. International Journal of Police Science & Management, 7(1), 44–61. Fassin, D. (2013). Enforcing order: An ethnography of urban policing. Polity Press. Goldberg, D. (2002). The racial state. Blackwell.

168 

S. Keskinen and M. Himanen

Goldberg, D. (2009). The threat of race: Reflections on racial neoliberalism. Wiley-Blackwell. Grönfors, M. (1979). Ethnic minorities and deviance: The relationship between Finnish gypsies and the police (Sociology of law series no. 1). University of Helsinki. Haller, M., Saarikkomäki, E., & Solhjell, R. (2020). “We are seen as a threat”: Police stops of young ethnic minorities in the Nordic countries. Critical Criminology, 27(2), 347–361. Hautaniemi, P. (2004). Pojat! Somalipoikien kiistanalainen nuoruus Suomessa. Nuorisotutkimusverkosto. HE. (2014). Hallituksen esitys eduskunnalle laiksi ulkomaalaislain muuttamisesta (The government proposal for a law to change the Aliens Act) HE 169/2014 vp. Himanen, M. (2021). An ambiguous ban on ethnic profiling: Reforming immigration law enforcement at the juncture of non-discrimination norms and migration. Nordic Journal of Studies in Policing, 8(2), 1–18. https://doi. org/10.18261/njsp.8.2.5 Hübinette, T., & Lundström, C. (2014). Three phases of hegemonic whiteness: Understanding racial temporalities in Sweden. Social Identities, 20(6), 423–437. Jackson, J., Hough, M., Bradford, B., Pooler, T., Hohl, K., & Kuha, J. (2011). Trust in Justice: Topline results from round 5 of the European Social Survey. Project report. European Social Survey, London, UK.  Available online: https://eprints.bbk.ac.uk/id/eprint/5712/1/5712.pdf%20Read%20 8.10.%202014. Accessed 17 March 2022. Kamali, M., & Jönsson, J. (2018). Neoliberalism, Nordic welfare states and social work. Routledge. Keskinen, S. (2011). Troublesome differences – dealing with gendered violence, ethnicity and race in the Finnish welfare state. Journal of Scandinavian Studies in Criminology and Crime Prevention, 12(2), 153–172. Keskinen, S. (2018). ‘The ‘Crisis’ of white hegemony, Neonationalist femininities and antiracist feminism’, Women’s Studies International. Forum, 68(May– June), 157–163. Keskinen, S., Aminkeng Atabong, A., Himanen, M., Kivijärvi, A., Osazee, U., Rousku, V., & Pöyhölä, N. (2018). The stopped—ethnic profiling in Finland. In SSKH Notat 1/2018. University of Helsinki. Keskinen, S., Skaptadóttir, U., & Toivanen, M. (Eds.). (2019). Undoing homogeneity in the Nordic region. Migration, difference, and the politics of solidarity. Routledge.

7  Human Rights, Criminalisation of Migrants and Racism… 

169

Loftsdóttir, K., & Jensen, L. (Eds.). (2012). Whiteness and Postcolonialism in the Nordic region: Exceptionalism, migrant others and national identities. Ashgate. Pietarinen, K. (2018). Rasismi rehottaa poliisien salaisessa Facebook-ryhmässä. Longplay. 3 June 2017 https://www.longplay.fi/sivuaanet/rasismi-­rehottaa-­ poliisien-­salaisessa-­facebook-­ryhmassa. Accessed 3 December 2021 PTK. (2014). Täysistunnon pöytäkirja (Minutes of the plenary session, Finnish Parliament), 147/2014 vp. 3 February 2015. Pulma, P. (2006). Suljetut ovet. Romanit Pohjoismaiden etnopolitiikassa 1500-luvulta EU-aikaan. SKS. Saari, K. (2009). Poliisin ja etnisten vähemmistöjen välinen suhde 2000-luvun Suomessa  – kertovatko suomalaistutkimukset kahta ristiriitaista tarinaa? Oikeus, 38(4), 402–419. Saarikkomäki, E. (2017). Trust in public and private public policing. Young People’s encounters with the police and private security guards. University of Helsinki. Schclarek Mulinari, L. (2017). Slumpvis utvald. Ras-/etnisk profilering i Sverige. Civil Rights Defenders/Kriminologiska institutionen, Stockholms universitet. Schclarek Mulinari, L., & Keskinen, S. (2022). Racial profiling in the racial welfare state  – examining the order of policing in the Nordic region. Theoretical Criminology, 26(3), 377–395. Schierup, C., Hansen, P., & Castells, M. (2006). Migration, citizenship, and the European welfare state: A European Dilemma. Oxford University Press. Tervonen, M. (2010). “Gypsies”, “Travellers” and “Peasants”: A study on ethnic boundary drawing in Finland and Sweden, c.1860–1925. European University Institute. UL. (2004). Ulkomaalaislaki (Aliens Act), 301/2004. Verloo, M., & Lombardo, E. (2007). Contested gender equality and policy variety in Europe: Introducing a critical frame analysis. In M.  Verloo (Ed.), Multiple meanings of gender equality: A critical frame analysis of gender policies in Europe (pp. 21–49). Central European University Press. Vuorensyrjä, M., & Fagerlund, M. (2018). Poliisibarometri 2018. Kansalaisten arviot poliisin toiminnasta ja Suomen sisäisen turvallisuuden tilasta. Poliisiammattikorkeakoulu. Weiste-Paakkanen, A., Lämsä, R., & Kuusio, H. (2018). Suomen romaniväestön osallisuus ja hyvinvointi : Romanien hyvinvointitutkimus Roosan perustulokset 2017–2018. THL. Yuval-Davis, N., Wemyss, G., & Cassidy, K. (2018). Everyday bordering, belonging and the reorientation of British immigration legislation. Sociology, 52(2), 228–244.

8 Police Identity Checks in Belgium: A Critical Media Content Analysis Ludovic De Vocht, Antoinette Verhage, and Sofie De Kimpe

8.1 Introduction Performing an identity check is a daily activity for many police officers. Although it seems a less intrusive practice in comparison with body searches, the impact on the subject of the identity check can be significant. The way in which the check is carried out is hence crucial, both in terms of legitimacy of policing and in terms of legal certainty (Saudelli,

L. De Vocht (*) Vrije Universiteit Brussel, Brussels, Belgium Ghent University, Ghent, Belgium e-mail: [email protected] A. Verhage Ghent University, Ghent, Belgium e-mail: [email protected] S. De Kimpe Vrije Universiteit Brussel, Brussels, Belgium e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 J. de Maillard et al. (eds.), The Politicization of Police Stops in Europe, Palgrave’s Critical Policing Studies, https://doi.org/10.1007/978-3-031-35125-9_8

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2021). Surprisingly, in Belgium, the practice of police identity checks and the need for high-quality decision-making in this respect have not been at the core of public attention for many years. Only recently have we seen the media pay attention to identity checks, often from a problematising point of view, for example in cases where citizens have gone through negative experiences after becoming the subject of identity checks. These negative experiences fuel public debate. The potential problematic nature of identity checks is partly due to the broadness of Belgian regulation (Saudelli, 2021). This is also why police research has been studying the difficulties of performing identity checks before the media attention increased (Easton et al., 2009; Meerschaut & De Hert, 2007). Different studies (Goossens, 2006; Meerschaut & De Hert, 2007; Saudelli, 2021) suggest that the current regulation on identity checks does not provide a clear guideline on how to perform identity checks and how to properly handle the rather broad discretionary powers that the regulation itself holds. In their report of 2018 on ethnic profiling, the Belgian branch of Amnesty International stated, on the basis of interviews with police officers, that ethnic profiling is an issue in Belgium and that this was partly based on the fact that police officers have ample room for discretion when it comes to deciding who to control and when. Amnesty points to a grey zone that, on the one hand, police officers use in deciding on identity checks and, on the other, the fact that identity checks are not being registered (Amnesty International, 2018). In general terms, it is up to police officers to decide when, where and how to perform identity checks. This room for manoeuvre has certain advantages as it allows police officers to make tailor-made decisions but can also lead to problematic situations. The role of the media in this debate is an important one as the media coverage can have a crucial impact on public debate and policy discussions. This became clear during the Black Lives Matter movement that was reported upon widely in the media (e.g. Haeck, 2021). Unless we are physical witnesses of police practices, people are reliant on the media to form opinions on police and criminal justice as a whole. Based on mediated stories, involving different stakeholders, a positive or negative perception of the police is formed regarding their organisation and actions (Snacken & Verfaillie, 2009; Verfaillie, 2020). As such, we can

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potentially trace back the societal developments by looking at the original reports of incidents relating to identity checks. In this paper, we aim to describe the concerns on identity checks in Belgium and how they became part of the public and political agenda, looking at the different actors in the debate. The role of the media will be discussed, aiming to grasp the way in which Flemish media, the Dutch-­ speaking part of Belgium, represented and framed the discussion on identity checks. What was the role of the media in this debate? Which incidents fuelled the discussion? What is the dominant discourse used in the media and how has this evolved over the years? In the following paragraphs, the legal context of identity checks in Belgium and its place within police work will be sketched. Secondly, we take a look at the broader impact of identity checks on citizens and describe what is currently known in academic research on the subject. Thirdly, we study the way incidents relating to ID-checks are presented by Flemish media. By doing a media content analysis, with an additional eye for the used discourse, certain incidents within public debate on identity checks can be mapped.

8.2 Belgian Identity Checks Legal Context ID-checks are the most common police practice in Belgium (Saudelli, 2021). They are regulated by article 34 of the Law on the Police Function1 (LPF hereafter). The LPF as a whole describes the general and specific functioning of the Belgian police, including regulations on body searches, detainment and the use of restraint. Regarding ID-checks, the LPF stipulates how long a person can be detained when they refuse to co-operate with an ID-check or when they are not able to show their identity card. As part of article 1 and 2 of the Royal Decree of the 25th of March 2003 concerning identity cards,2 every Belgian above the age of 15 is required  Law of August 5 1992 on the Police Function, B.S., 22/12/1992.  Royal Decree of March 25 2003 on the Identity Cards, B.S., 28/3/2003.

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to have an identity card and must be able to present that card if asked by the police. The cases in which the police, proactively or reactively, have the justifications to check someone’s identity, are also regulated by article 34 of the LPF. Even though a legal framework to check identities exists, practical modalities are not offered by the legislator, which makes it unclear how police officers should perform an ID-check. Police officers have a lot of discretionary power when it comes to identity checks (Goossens, 2006; Meerschaut & De Hert, 2007). In paragraph 1 of article 34 of the LPF, the much-discussed reasonable grounds of an ID-check can be found. Those grounds state that: They [the police officers] can also check any person’s identity if they, based on behaviour, material clues or circumstances of time and place, have reasonable grounds to believe that the person is under investigation, that he tried or prepared to commit an offence or that he could disturb or has disturbed the public order (art 34 § 1 Law on the Police Function Police, 1992, own translation3).

These reasonable grounds are not further clarified or explained in this law. This lack of clarity implies a relatively large scope for police officers to make use of personal interpretations, meaning broad discretionary powers. Saudelli (2021) therefore concludes that the current legislation does not offer sufficient tools for the selection of suspicious behaviour. Apart from the room for discretion that is offered by legislation, Belgium currently does not have a formal practice of registering identity checks. This implies that conclusive data on how often identity checks are conducted is lacking, nor do police officers have any insight into their own practices. To fill this void, in 2017 an attempt was made at introducing mandatory registrations of ID-checks, with a project running in the city of Mechelen. Although the goal of these mandatory registrations is to combat ethnic profiling, the system itself does not work properly. The  Art. 34.§ 1. De politieambtenaren controleren de identiteit van ieder persoon wiens vrijheid wordt benomen of die [1 een feit strafbaar met een administratieve of strafrechtelijke sanctie]1 heeft gepleegd. Zij kunnen eveneens de identiteit controleren van ieder persoon indien zij, op grond van zijn gedragingen, materiële aanwijzingen of omstandigheden van tijd of plaats redelijke gronden hebben om te denken dat hij wordt opgespoord, dat hij heeft gepoogd of zich voorbereidt om een misdrijf te plegen of dat hij de openbare orde zou kunnen verstoren of heeft verstoord. 3

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data is not being used and not every identity check is registered properly (De Jaegere, 2020). Even though we know little about the quantity of identity checks, recent Belgian research does offer insights on how they are conducted and how police officers think about performing identity checks (Saudelli, 2021; Van Leeuwe, 2021; Van Praet, 2020). However, a knowledge gap still exists regarding the impact of police controls on citizens and the way that policy is implemented by the police or internal control organs (Amnesty International, 2018). In the following paragraph we discuss the current findings in regard to police stops in Belgium.

Research on Police Controls Research on police stops or police controls in Belgium is often focused on identity checks (see Amnesty International, 2018; Saudelli, 2021; Van Praet, 2020). This is a narrower research object than stop and searches (stop and frisk in the United States) and traffic stops, which are often the focus of Anglo-Saxon literature (Aston et al., 2019; Bowling & Phillips, 2007; Bowling & Weber, 2011; Bradford & Loader, 2016; Delsol & Shiner, 2006; Morrow et al., 2017). In Belgium, there is no general stop and search act, so identity checks are, regulatorily speaking, isolated from body searches, while in practice they do often occur together (Saudelli, 2021). But, the finality of performing identity checks is different from body searches, so they are often separately studied. The scarce but very recent Belgian primary studies that were carried out on the topic come to a number of similar conclusions (Saudelli, 2021; Van Praet, 2020). A first well-documented problem is selectivity. As a result of the earlier mentioned discretionary powers, police officers need to make choices on a daily basis. Checking identities is often a personal approach that can change according to experience within the police force. Saudelli (2021) observed that police officers are guided by pragmatism, police culture, gut feeling and experience. She also questions why pragmatism is so prevalent in conducting identity checks. A possible conclusion is that police training, the legal framework and the goals and priorities of the police organisation are of lesser importance, while the

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individual assessment gains a more prominent place. Gut feelings or police intuition on what is ‘suspicious behaviour’ appears to boil down to ‘different’ behaviour. Different behaviour is based on an image of what a normal citizen does or does not do that is not prohibited by law. Any deviations from that image lead to criminalisation processes with regard to behaviour that does not fit the dominant ideas of normality (Saudelli, 2021). Police selectivity becomes a problem when a group of citizens are disproportionately stopped and checked more than other groups, if not based on objective criteria. Article 34 § 1 LPF allows proactive checks based on suspicious behaviour, physical evidence and/or circumstances of time and place. Race, ethnic origin, complexion, sex or religion can be taken into account if they are justified by one of the main grounds stipulated by article 34. If the selection is solely based on one of those characteristics, it may be regarded as a form of discrimination. There we find recent critiques of organisations such as Amnesty International (see further), stating that there are accounts of ethnic profiling within Belgian police. Besides the selection, the process of checking and interacting with a citizen can also have effects. Saudelli (2021) and Van Damme (2017) note that police officers use various personal strategies to achieve a hassle-­ free interaction with citizens. In line with procedural justice theory, it is assumed that a respectful and correct attitude paired with a transparent explanation of the reason for the ID-check can prevent citizens from becoming recalcitrant or the situation from escalating into an arrest or even violence. However, if citizens react rudely or disregard the authority of the police officer, a power imbalance arises and the officer’s attitude may change accordingly. A legitimate police force is recognised by citizens and is allowed to use its authority and power (Van Damme, 2015). If citizens feel that the police are legitimate, they see police work as to be respected and to be obeyed (Hough et al., 2010). The police need citizens as they are the eyes and ears on the street when the police are not there. They need people to report crime and give information during investigations (Monjardet, 2000). Only if the people trust the police will they then be prepared to co-operate. Therefore, it is in the complete interest of the police to have

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sufficient legitimacy with all citizens. Van Leeuwe (2021) also studied police interactions with citizens and tried to grasp the extent of procedural justice in these interactions. He concludes that, although the majority of interactions showed (high levels of ) procedurally just behaviour, there are also procedurally unjust interactions between police and citizens. Although this is not the majority of interactions (in 29% of all ID-checks, at least one procedurally unjust behaviour was noted), these negative experiences may very well have a larger impact on the relations between police and citizens as they weigh more on the relationship. Besides the actual interaction between police and citizens, media also has a role in the perception of identity checks and the functioning of police, allowing for a different discourse to circulate and impact people without them having a direct interaction with police.

8.3 Media Content Analysis After this short overview of research in Belgium with regard to ID controls, the next part of the paper will go into the role of the media and their discourse on identity checks by the police. Firstly, we discuss the central ideas behind media content analysis and how this method fits as a tool to better understand media discourse and its connection to police, society and politics. Secondly, we explain the search engine ‘GoPress Academic’ that was used to find the specific news reports. Finally, the selection criteria for the news articles are discussed.

A Critical Media Content Analysis If academic researchers want to understand contemporary news media and representations of crime and justice, Greer (2010) argues that we need to take into account the way media changed itself and the relationship between them, the public and the police or government. Following cultural criminology’s ideas of media consumption and criminal justice, a constant interaction, or even a loop, exists between consumers, media and the ones journalists are reporting on. Indeed, Ferrell et  al. (2015)

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argue that, ‘The mediated nature of contemporary culture not only carries along the meaning of crime and criminality; it circles back to amplify, distort and define the experience of crime and criminality itself ’ (p. 155). Media itself contributes to our collective understanding of crime but is also influenced by the same interaction. An example from the UK, described by Greer (2010), is adversarial press reporting, which is critical of the performance of police and the government, leading to upset with media audiences. Stories are framed as success-failure narratives, adding on to the idea that there is a permanent crisis in criminal justice. As a consequence, people are then asking for accountability from the police and, if that is not provided, they are encouraged to produce their own evidence of the functioning of the police. The newly created ‘evidence’ can then be re-used by the media to report further on the perceived problematic police practices. In this part of the paper, we will try to identify these potential loops by means of media content analysis. Media content analysis is centred on primary messages of the media. This can include many types of media (e.g. films, news, magazines, images). In this paper, we will focus on news media as these are easy to consult and because we assume that they are the main channel of communication in this domain. While different authors (Berger, 1998; Neuendorf, 2017) argue that a media content analysis requires a quantitative research design (e.g. counting representative sampled amounts of words or appearances), we approach media content analysis from a qualitative approach. A qualitative content analysis demands that the researcher thoroughly relies on their interpretation of texts. A small sample of content allows them to really dive into what is written (Macnamara, 2005). Furthermore, analysing discourse, even if not as thorough as a critical discourse analysis, helps us better understand the complex interaction between social realities, power relations and language itself (van Dijk, 1993). This paper focuses on the media reporting and debates surrounding ID-checks. While research on police topics using a form of discourse analysis is scarce, there is a lot of research on the role of media as an active mediator in public debate (Leung, 2019; Maeseele & Raeijmakers, 2016; Ručman, 2013; Tobias & Joseph, 2020; Van Haelter & Joye, 2020). Having media as a vessel and sometimes a representative shows its

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multi-faceted character. Based on the topic of ID-checks, that would assume that media is a stakeholder within the debate, but also could induce societal change because of its role within establishing power relations. Media decides who to give a platform to and whose voice is heard during news reporting (Ručman, 2013). Understanding the basics of media content and discourse analysis will help in uncovering small details of our media cases and may help the reflection process that comes along with drawing out the discourses used by the stakeholders.

GoPress Academic The newspaper articles are found through GoPress Academic. This search engine has access to more than 33 million articles and news feeds, ranging from Belgian and international newspapers to magazines and Twitter posts. One of the benefits of GoPress is the ability to read articles that are usually locked behind a paywall and the fact that it collects a large amount of sources. Within the software, articles are found in the three primary languages of Belgium: Dutch, French and German. We decided to focus on the Dutch-speaking newspapers, as the linguistic nuances in French and German are rather difficult to process in a discourse analysis as non-­ native speakers. We could also argue that a deeper-lying political discrepancy exists between Flanders and Wallonia, respectively the Dutch and French-speaking parts of Belgium, which is also noticeable in the media coverage and how each side of the linguistic border is framed by the media (Boonen & Hooghe, 2013; Sinardet, 2008). Considering these reasons, we limit ourselves to the Dutch-speaking newspapers in Belgium. This limitation also means that the results in GoPress will mostly reflect events in Flanders. As mentioned above, Twitter posts are also retrievable through GoPress. We opted to not include news reports on social media, as they can include personal opinions and do not necessarily reflect the discourse found in traditional newspapers. Furthermore, we decided to not include columns and editorials, as it again reflects a more personal discourse and perspective than the reporting of general news articles. This leaves us with articles written in (digital) newspapers. More precisely, we collected data from

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seven newspapers: De Morgen, De Standaard, Het Nieuwsblad, Het Laatste Nieuws, Het Belang van Limburg, Gazet van Antwerpen and Metro. One more important fact that we need to consider is that Belgium has a national news agency called Belga. Belga covers many types of information, such as written press, audio-visual reports and online media (Belga, n.d.). Its news and pictures are also used abroad, although the agency’s focal point is delivering domestic news and reporting international news through translations in Dutch and French (European Stability Initiative, 2010). Because Belga is the largest press agency in Belgium, newspapers often rely on the articles written by Belga to use on their own website for a fast and reliable publication of news items. This is also true in our case, as the search results from GoPress often include the same articles with the same headlines. It is still interesting to explore these articles, as journalists may add information that was not in the original Belga article.

Selection Criteria As discussed in the previous sections, the research focuses on media discourses surrounding the topic identity checks within a police control in Belgium. We define police control as ‘any vehicle or person that is stopped and subjected to a search or control, not including border controls and customs’. This definition made sure we would not include reports of airport identity checks and other non-police related identity checks. Further we opted to only include articles with over 300 words. To show the relevance of each event, a three-day relevancy criteria was used. In other words, the ongoing media debate must be at least three days, starting from the first report until the last. This is necessary to exclude news reports that did not spark any debate or were just minor news events that did not require any follow-up reporting. GoPress technically allows you to look up articles starting from 1985, but this research opted for the period from the 1st of January 2001 until the 30th of May 2022. In the following section the results of this media analysis will be reported.

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8.4 If it Rains in the Media, it Drizzles in Politics Police, media and politics have a longstanding and rather interesting relationship. In Belgium we have the loosely translated proverb ‘if it rains in Paris, it drizzles in Brussels’, stating the ever-present interest in French politics and its decisions ultimately inspiring Belgian politics. This kind of relationship is comparable to how media can instigate a wave of political debate, and how politics are trying to manage stories coming from news articles. The next paragraph discusses the general findings in GoPress Academic. Afterwards three heavily mediatised cases that relate to identity checks, focusing on the discourse used by the different stakeholders, will be discussed. The significance of (some of the) stakeholders with regard to defining the exact problem of identity checks will be analysed. Lastly, we show that the political reaction that follows these stories results in policy changes and organisational police changes.

General Findings As stated above, Dutch-speaking news articles are the subject of this study, and therefore Dutch keywords were used in GoPress Academic. Table  8.1 shows the initial search and its results. The middle column reports the articles that fitted the criteria except for the three-day relevancy. At first, a general search was performed on the keyword identiteitscontrole (En: identity check). During the first round of searches, a substantial number of articles also included reports on identity checks Table 8.1  GoPress keyword and results in number of articles (2001–2022) Keyword(s) Identiteitscontrole Identiteitscontrole AND politie Identiteitscontrole AND politie AND etnisch profileren

Results (w/o relevancy)

Results (incl. relevancy)

1.042 636 17

119 99 12

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relating to alcohol consumption, gambling and airport security. As stated before, non-police related reports are excluded from this research and as such left out of the results. Therefore, we conducted a second search, now adding politie (police) to the keywords. As expected, the results showed less articles and were indeed much more relevant for this study. However, those articles still included reports on identity checks in countries other than Belgium, which are not relevant in this study and were as such excluded. Keeping in mind that the terminology of ethnic profiling has become common during the last few years and often relates to identity checks, we added etnisch profileren (ethnic profiling) to the search results. This did not result in a large amount of news reports (n = 17). One of the possible reasons may be that the concept is rather new to the media, especially in comparison to more general terms such as racism and discrimination. A different possibility could be that there are simply not many media-discussed cases of ethnic profiling in Belgium. The latter possibility is discussed further on.

Stakeholders During the first round of readings of the news reports, we identified four influential organisations that had a major voice in the debate and reported on problematic police practises. We then further investigated their role within the Belgian debate on identity checks. To better understand the context in which ID-checks are mediatised in Belgium, this study briefly examines those reports.

Human Rights Watch In 2016, Human Rights Watch (HRW) reported on Belgium’s counterterrorism measures taken by the government after the attacks in Paris and Brussels. New regulations and laws had been enacted to combat the terrorism threat present at the time. Those new regulations included restrictions on travelling, the suspension of passports and identity cards and prolonged solitary confinement for prisoners accused or convicted of

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terrorism-related offences. HRW concluded that some of those laws and regulations threatened fundamental rights, which the Belgian government denied. Regarding the police, HRW found that there were instances of abusive and discriminatory behaviour during counterterrorism operations, which also included stop and searches (Human Rights Watch, 2016).

Amnesty International As stated above, in 2018, Amnesty International published a report on the current police policy aimed at preventing ethnic profiling in Belgium. In a qualitative research design, they performed interviews with police officers, civil servants at the Ministry of Internal Affairs, the Standing Police Monitoring Committee (Comité P, which is the external oversight body covering all officials with policing powers), Unia (see further) and people responsible for different police training tracks. Amnesty International observed that, while most police officers do recognise the severity of the issue, a lack of concern exists on a national level. Police training lacks specific tools to prevent ethnic profiling and the discretionary powers of article 34 § 1 LPF were also shown to lack clear guidelines.

Unia Unia is an independent public institution that fights discrimination and promotes equal opportunities in all public domains, including the police. As the news reports show, Unia is one of the more active stakeholders and voices during debates on police functioning. In 2020, they funded the research of Van Praet in collaboration with the National Institute of Criminalistics and Criminology (NICC) on the identification and tackling of police selectivity abuse in Belgium. One of the main conclusions was that management of a police zone has a strong impact on police practices. Improvements at that level should be made to enhance the relationship between police and the population (Unia, 2020; Van Praet, 2020).

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Committee on the Elimination of Racial Discrimination The Committee on the Elimination of Racial Discrimination (CERD) is part of the United Nations and consists of independent experts that analyse legislative and policy measures taken by countries, specifically if there are issues relating to racism and discrimination. The 2021 Concluding Observations report included a number of police-related issues, ranging from intensified police violence during the COVID-19 pandemic to persistent racial profiling and the violent policing of anti-discrimination demonstrations. Relating to identity checks, the Committee found that Belgium must actively combat and end any practice of ethnic profiling. This should include new legislation, specific guidelines or instructions for identity checks to prevent profiling, a form including the reason for a check providing information to the citizens and the enhancement of the current training programmes on ethnic profiling (Committee on the Elimination of Racial Discrimination, 2021).

Cases of Identity Checks in Belgium The analysis of the relevant articles found on GoPress resulted in three cases, based on the previously mentioned criteria that received media attention for several days and, in some cases, weeks. Those cases are important because after those events, we saw a major change in the political debate at the time. You can see those events as certain flashpoints that changed or aimed at changing police practices and policies. Those cases are chronologically as follows: (1) the citizen patrols of the Arabic European Liga, (2) the identity check of Stéphanie Djatto and (3) the stop and search of ZouZou Ben Chikha. Case 1: Arabic European League: First Form of Registering Identity Checks Initially as a movement that organised pro-Palestine demonstrations, and later because of its so-called ‘citizen patrols’, the Arabic European League (AEL) drew media attention to their operations. In October 2002, a

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leaked police note from the police of Antwerp stated that they were working on a project called ‘Integrated project Moroccans’, which would be a focused action against street criminality in Antwerp. However, according to the AEL, that police action would be strongly aimed against Moroccan youth. Later, the city council would rename the action to ‘Global action plan street criminality’, where the mayor explicitly denied that the police action was focused on immigrant youth. The leader of the AEL, Dyab Abou Jahjah, said that the action would be a manhunt on Moroccan youth and that a different name does not change anything about police behaviour (wer, 2002). In the 1990s, there were already claims that the Belgian police were racist and acting disproportionately against minorities, but it was not until the actions of the AEL that the subject got considerable media attention. As a reaction against the planned police actions, the AEL organised citizen patrols, which in Flemish media are referred to as burgerwacht or in French the garde civique. This practice traces back to private militia groups that were created by the middle class after the Belgian Revolution in 1830. In 2002, these citizen patrols were less militarised and had a more communal and peaceful character, clearly distinguishable from their 1830-counterpart. Citizens patrolled the neighbourhood and reported possible police violence and misconduct during identity checks. They would also physically walk beside the police, filming police controls and handing out flyers to bystanders, asking them to speak up if the police showed any form of unfair and racist behaviour (wer, 2002; Willemse, 2002). The mayor of Antwerp responded that the AEL could not hinder the police whatsoever and that filming is strictly forbidden. Three weeks later, Prof. Dr. Dirk Van Daele was asked to explain the legal issues regarding those citizen patrols and stated how it could quickly be interpreted as a private militia. Furthermore, Paul Pataer, chairman of the League on Human Rights, was very critical in his opinion on the citizens patrols. He called it ‘totally senseless and unwise’ (Willemse, 2002). The AEL was warned. On November 16, 2002, the first AEL patrol took place. They did use cameras and handed out flyers, but the police let it all happen. No major incidents were reported (domi, 2002). For a whole month, the AEL patrols were discussed in the newspapers. However, because several

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politicians outside of Antwerp doubted the legality of these patrols, the slightly neutral discourse changed to a very negative discourse. The citizens patrols were being condemned. Even the prime minister, Guy Verhofdstadt, said that controlling police practices is the task of the government and no one else’s (psr, 2002). Nevertheless, the debate took a different turn again. On December 17, 2002, Het Laatste Nieuws reported that the city council of Antwerp did not find anything wrong with the current AEL patrols. They said that the AEL adjusted their operations according to the ‘rules’ of democracy (Wilri, 2002). While the patrol debate was largely concluded, media attention concerning racism within police was not and would continue for years to come. Case 2: Stéphanie Djato in Jette The second case is the identity check of Stéphanie Djato on the May 31, 2012. This case of alleged police brutality in relation to an identity check led to demonstrations and riots in Sint-Jans-Molenbeek. The identity check started at a tram station in Jette, where the police asked Ms. Djato to take off her niqab and show her identity card. Niqabs and other face coverings are illegal in the public domain in Belgium. Belga (2012) reported that the woman would not co-operate in taking off her niqab and was taken back to the police station in Molenbeek. Allegedly, she tried to headbutt one of the officers in the car. At the police station, the identity check continued and Ms. Djato was once again asked to take off her niqab. She refused again and it came to a clash with the police officers. According to the spokesperson of the police, one of the officers suffered a broken nose and several broken teeth, while another officer was left with several bruises. Eventually, police were able to take off her niqab and saw that she had suffered injuries as well and was brought to the hospital. Later, the woman was released by the police under strict conditions. The following day, all major Flemish newspapers reported the case, not only because of what happened inside the police station, but also of what happened outside. Protests continued for three days. An interesting interview published by De Morgen, two days after the incidents, reported that it was the radical Islamist organisation ‘Sharia4Belgium’ that asked their

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members to protest outside the police station, to support their ‘fellow sister’ (Maeckelbergh, 2012). However, the spokesperson and leader of Sharia4Belgium, Fouad Belkacem, denied that Ms. Djato was a member of the organisation. He said it was logical that Sharia4Belgium would protect her as they are the only organisation that opposes the ban on burqas. The whole week, Molenbeek was in a heightened state of alert, as mayor Philippe Moureaux condemned the demonstrations. One day later, on the second day of June, a press conference was organised by Fouad Belkacem. There, he gave his own version of the events in Jette: Three officers ripped her niqab and underwear. She was practically choked and she defended herself against the servants of the devil. Next, the police officers went completely insane and cuffed her. She stood there naked in front of everyone and they all laughed at her. (jdb, 2012)

Three years later, on the December 22, 2015, Ms. Djato was sentenced to 18 months in prison and had to pay various damages for the police officers she assaulted (De Morgen, 2015). Case 3: ZouZou ben Chikha in Ghent The third case is the identity check of Belgian actor ZouZou Ben Chikha. He was stopped and searched by the police of Ghent on the December 13, 2015. According to Mr. Ben Chikha, this was in a rather harsh and disrespectful way, never having heard the reason for their stop and search. He felt humiliated and said it was not the first time that this had happened. He also claimed that the police officers never apologised for their actions (rdc, 2015). The original article in De Standaard stated that Mr. Ben Chikha’s ‘Tunisian roots were the reason for the harsh interaction with the police of Ghent’ (rdc, 2015), something that at that point was not clear. Soon, the term ‘ethnic profiling’ was attached to this case and the police were under great pressure to put out a response. In the next few days, three different parties commented on the event. An official police response followed in the media: ‘The police thought Mr. Ben Chikha was acting suspiciously, looking inside several cars. He had a bag and was wearing a hood. The officers judged this as “suspicious”

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and a stop and search ensued. Before stopping him, they never saw that the man had a migration background’ (jvt et  al., 2015). They further clarified that their stop and search was part of the ‘STROP-actions’, which is a specific measure taken by the police of Ghent to perform identity checks in ‘difficult’ neighbourhoods. ‘Those stop and searches are based on experience and the judgment of the police, there are no specific criteria’ (jvt et al., 2015). The second party was Unia, the Interfederal Center for Equal Opportunities. They used the case of Mr. Ben Chikha as an example to point out the existing racism within police that can lead to physical violence. They specifically ask the head of the police to give more attention to racism, as it is too often minimalised (Lesaffer, 2015). The third reaction came from Minister of Internal Affairs, Jan Jambon. After a full week of public debate, minister Jambon, who is responsible for the Belgian police force, gave a radio interview that was reported by De Standaard: If police officers have crossed the line, then we must deal with that (…) but if we are looking for a particular profile, one of foreign origin, it is more than logical that we stop and search someone who meets that criterium and acts suspiciously. It is evident that they should be checked and investigated first. (jvt, 2015)

The debate was actively sparked by underlying assumptions in the media that, because of his skin colour, a trustworthy actor with Tunisian roots was unlawfully stopped and searched by the police. This is also seen in the tenses used to describe the events of the identity check: ‘The actor would have been harshly treated by the police of Ghent. It’s not the first time that ZouZou Ben Chikha was confronted with ethnic profiling’ (jvt et al., 2015). A conditional verb, stating uncertainty, is used when talking about the violence claims, while a past perfect tense, stating certainty, is used when talking about the reason for the stop and search, being his ethnicity. This difference in discourse is an example of how different words change meaning and shape reality as such.

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8.5 Discussion and Conclusion News reports on police controls tend to show what Stretmo (2014) describes as ‘critical discursive moments’: certain images and reports show that the media influences the construction of social problems. We can see this in the case of ZouZou Ben Chika. Mr. Ben Chikha is a well-known Belgian actor, and the idea that someone relatively famous can be confronted with at least questionable police practices can stir the public. Also, in the same period, we saw an increase in the number of articles mentioning the term ethnic profiling, which is striking, as the concept does not really appear in the media before 2015. Arguably, this can be seen as a good evolution, because compared with articles written around the early 2000s, claims of racism then have now become seemingly claims of ethnic profiling. Ethnic profiling is a well-understood concept in academic research and has been since before 2015. The media picked up this new concept, one that is much more precise in defining problematic identity checks than simply stating that the police was acting in a racist manner. In the case of the political reactions, we find deflective statements against alleged police violence and racism or outright defensive positions of the minister towards their police organisation. Parallels can be drawn with the more and more professionalised communications by political parties, described by Greer (2010). The ‘rotten apple’ metaphor fits political and police narratives perfectly, as minister Jambon deflected accountability in the case of Mr. Ben Chikha, by saying that if there were troublesome practices by individuals within his police force, he would take action against those individuals. In other cases, as reported by Amnesty International (2018) and Saudelli (2021), police officers would say that acts of racism and ethnic profiling are merely the result of rotten apples within its organisation, not reflecting institutional racism in any way and showing critical flaws in discretionary powers and training. It is difficult to draw linear connections between events, the mediated debate and policy changes. In the case of Ms. Djatto, attention was drawn to Sharia4Belgium, not because of the identity check, but because of the radical statements by its leader. As expected, the political discussion

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afterwards was not about the niqab-issue, but about Sharia4Belgium being a self-proclaimed radical Islamic group aimed at deconstructing democracy in Belgium. In the case of the AEL patrols, it seems that they were rather revolutionary in their idea behind filming the police as a way to encourage accountability, but the time was not right for organisational changes, as privacy-related discussions held more importance than the possibility of the police organising race-focused actions. The fact that the initial idea behind the patrols was not really the point of interest for the media may be because of the reputation that AEL had as a resistance group with undemocratic practices and demonstrations. Interestingly enough, body-worn cameras are now more and more being used by Belgian police officers, to increase the transparency of their police practices, showing a potential shift in willingness to account for their actions. If something should be clear from this contribution, it is that the media can be the starting point for debate. Having an accessible channel and, if used correctly, media can be successful in changing our social reality. The case of ZouZou Ben Chikha shows a story that resulted in more questions than answers, which in turn activated Amnesty International to begin its profound research on ethnic profiling, that still holds major academic value today. Even though we still do not know—and probably never will—if the identity check of Mr. Ben Chikha was the result of ethnic profiling, it really did not matter for the public debate in the end. Ethnic profiling is now a concept and practice to pay attention to. Following the incident of Mr. Ben Chikha, the increased attention to ethnic profiling leads to some political initiatives, of which the earlier mentioned pilot project in Mechelen on the mandatory registration of identity checks is an example. Another example is a hearing within the commission of Internal Affairs where the results of the report by Amnesty International and the emergence of ethnic profiling as a whole were discussed (Kamer van Volksvertegenwoordigers, 2019).4 Following the hearing, Groen-Ecolo, the green party coalition within the government, proposed a bill to make registrations and the recording of motivations for identity checks mandatory. The bill is based on all the current Belgian  Verslag van de commissie voor Binnenlandse zaken houdende etnisch profileren van 21 maart 2019, Parl.St. Kamer 2018–2019, nr. 3683/1 4

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academic research on identity checks, the report of Amnesty International and the results of the trial project in Mechelen (Kamer van Volksvertegenwoordigers, 2021).5 To this day however, the bill remains a proposition, as the parliamentary discussions on identity checks have subsided. What did however change in recent years, is the police’s awareness of ethnic profiling, proved by the recent action framework ‘professional profiling’ and some local forces introducing new trainings to professionalise identity checks. The action framework offers a template on how to perform identity checks, from the first step of selecting a person to the reflection afterwards (Lokale Politie, Zone Brussel Noord, 2020). The framework and training are by no means new, but they do however combine the knowledge on the positive and negative effects of identity checks into one singular working document. Doing so, the police acknowledge societal demands for a more transparent and procedural just police. Question remains to what extent the action framework may actually impact citizens and their perception of identity checks. The concerns about identity checks in Belgium are present in both media, NGO and academic publications. There is academic evidence for identity checks having problematic aspects, such as the broad discretionary powers of police officers and the alleged cases of ethnic profiling, but we also see deflective political reactions that lean towards it being not as problematic as reported by other stakeholders. As we currently lack systematic registration of identity checks, all actors (media, academics, NGOs and the police) have a blurred and limited vision on this police practice. The media content analysis gives us insights about how media report police identity checks but does not give any conclusive answers as to the extent to which police identity checks are in general terms problematic. After all, only problematic cases are reported; political strategies and adversarial journalism heavily decide what is said and what is reported in the media.

 Voorstel tot wijziging van de wet van 5 augustus 1992 op het politieambt, met het oog op de invoering van een registratie-en motiveringsplicht bij identiteitscontroles, Parl.St. Kamer 2020–2021, nr. 1777/1 5

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In future research, it would be interesting to investigate the connection between media articles and the legitimacy of police. How are people influenced in their opinion of the police by the media and does it affect the functioning of police? Can the police do something about the aftermath of discursive moments, such as Stretmo (2014) described? How is trust in police being influenced by mediated reports of identity checks? Answering these questions could provide more foundations for our still growing research on police identity checks in Belgium.

References Amnesty International. (2018). Je weet nooit met mensen zoals jij. Politiebeleid ter preventie van etnisch profileren in België. https://www.amnesty-­ international.be/sites/default/files/bijlagen/amn_rapport_etnisch_profileren_web_ok_0.pdf. Aston, E., Murray, K., & O’Neill, M. (2019). Achieving cultural change through organizational justice: The case of stop and search in Scotland. Criminology & Criminal Justice, 21(1), 40–56. https://doi.org/10.1177/1748895819839751 Belga. (2012, May 31). Onlusten in Sint-Jans-Molenbeek na politiecontrole van vrouw in niqab. Belga. (n.d.). Over Belga. Retrieved April 24 2022, from https://www.belga.be/ nl/over-­belga/ Berger, A. (1998). Media research techniques. SAGE Publications. https://doi. org/10.4135/9781452243160 Boonen, J., & Hooghe, M. (2013). Politieke preferenties, breuklijnen en houdingen ten opzichte van politieke partijen: Een studie bij kiezers in Vlaanderen en Wallonië. Res Publica, 55(2), 177. Bowling, B., & Phillips, C. (2007). Disproportionate and discriminatory: Reviewing the evidence on police stop and search [article]. Modern Law Review, 70(6), 936–961. https://doi.org/10.1111/j.1468-­2230.2007.00671.x Bowling, B., & Weber, L. (2011). Stop and search in global context: An overview. Policing and Society, 21(4), 480–488. https://doi.org/10.1080/1043946 3.2011.618735 Bradford, B., & Loader, I. (2016). Police, crime and order: The case of stop and search. In B.  Bradford, B.  Jauregui, I.  Loader, & J.  Steinberg (Eds.), The SAGE handbook of global policing (pp. 241–260). SAGE Publications.

8  Police Identity Checks in Belgium: A Critical Media Content… 

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Committee on the Elimination of Racial Discrimination. (2021). Concluding observations on the combined twentieth to twenty-second periodic reports of Belgium. https://documents-­dds-­ny.un.org/doc/UNDOC/GEN/ G21/111/85/PDF/G2111185.pdf?OpenElement. De Jaegere, A. (2020, June 10). Politiezone Mechelen-Willebroek registreert al drie jaar controles in strijd tegen etnisch profileren: “Cultuuromslag”. vrt NWS. https://www.vrt.be/vrtnws/nl/2020/06/10/project-­mechelen­willebroek/ De Morgen. (2015, December 22). 18 maanden cel voor vrouw die niqab weigerde af te doen en politie rake klappen gaf De Morgen. https://www.demorgen.be/nieuws/18-­m aanden-­c el-­v oor-­v rouw-­d ie-­n iqab-­w eigerde-­a f-­t e­doen-­en-­politie-­rake-­klappen-­gaf~bcd722c5/ Delsol, R., & Shiner, M. (2006). Regulating stop and search: A challenge for police and community relations in England and Wales. Critical Criminology, 14(3), 241–263. https://doi.org/10.1007/s10612-­006-­9013-­1 domi. (2002, November 16). Eerste AEL-patrouilles in Antwerpen. De Standaard. https://www.standaard.be/cnt/dst16112002_011. Easton, M., Ponsaers, P., Demaree, C., Vandevoorde, N., Enhus, E., Elffers, H., Hutsebaut, F., & Moor, L. G. (2009). Multiple community policing: Hoezo? Academia Press. European Stability Initiative. (2010). Communicating Europe manual: Belgium. https://www.esiweb.org/pdf/enlargement_debates_manual_belgium.pdf. Ferrell, J., Hayward, K., & Young, J. (2015). Cultural criminology: an invitation. SAGE Publications Ltd, https://doi.org/10.4135/9781473919969 Goossens, F. (2006). Politiebevoegdheden en mensenrechten in België. Een rechtsvergelijkend en internationaal onderzoek. (Publication Number LIRIAS 1847533) [Doctoral Dissertation, KU Leuven]. Lirias. Greer, C. (2010). News media criminology. In E. McLaughlin & T. Newburng (Eds.), The Sage handbook of criminological theory (pp.  490–513). SAGE Publications. https://doi.org/10.4135/9781446200926.n26 Haeck, B., (2021, April 2021). De Belgische Black Lives Matter-erfenis. De Tijd. https://www.tijd.be/opinie/commentaar/de-­belgische-­black-­lives-­ matter-­erfenis/10299954.html. Hough, M., Jackson, J., Bradford, B., Myhill, A., & Quinton, P. (2010). Procedural justice, trust, and institutional legitimacy. Policing: A Journal of Policy and Practice, 4(3), 203–210. https://doi.org/10.1093/police/paq027

194 

L. De Vocht et al.

Human Rights Watch. (2016). Grounds for concern: Belgium’s Counterterro responses to the Paris and Brussels attacks. https://www.hrw.org/sites/default/ files/report_pdf/belgium1116_web_6.pdf. jdb. (2012, June 2). Vrouw in nikab: 'Gehandeld uit zelfverdediging'. De Standaard. https://www.standaard.be/cnt/dmf20120602_003 jvt. (2015, December 21). Jambon over ethnic profiling: ‘Logisch dat mensen met bepaald profiel eerst gecontroleerd worden’. De Standaard. https://www. standaard.be/cnt/dmf20151221_02031538 jvt, mtm, & sln. (2015, December 14). Politie: ‘Wij viseren geen mensen met een migratieachtergrond tijdens onze controles’. De Standaard. https://www. standaard.be/cnt/dmf20151214_02020080 Law of August 5 1992 on the Functioning of the Police. (1992, December 22). https://www.ejustice.just.fgov.be/cgi_loi/change_lg_2.pl?language=nl&n m=1992000606&la=N Lesaffer, P. (2015, December 15). Gelijkekansencentrum laakt racisme bij politie. De Standaard. https://www.standaard.be/cnt/dmf20151214_02021307. Leung, L.-C. (2019). Deconstructing the myths about intimate partner violence: A critical discourse analysis of news reporting in Hong Kong. Journal of Interpersonal Violence, 34(11), 2227–2245. https://doi.org/10.1177/08 86260516660298 Lokale Politie, Zone Brussel Noord. (2020, 8 juli). ‘Ondertekening handelingskader professioneel profileren’. https://www.politie.be/5344/nl/nieuws/ ondertekening-­handelingskader-­professioneel-­profileren Macnamara, J. (2005). Media content analysis: Its uses, benefits and best practice methodology. Asia-Pacific Public Relations Journal, 6(1), 1–34. Maeckelbergh, B. (2012, June 2). Nikabvrouw verschuilt zich achter Sharia4Belgium. De Morgen. Maeseele, P., & Raeijmakers, D. (2016). Nieuwsmedia, democratisch debat en ideologische culturen. In S.  Joye, D.  Biltereyst, & S.  Van Bauwel (Eds.), Media, democratie en identiteit: de rol van media in een democratische samenleving (pp.  8–22). Academia Press. https://hdl.handle.net/10067/1307 470151162165141 Meerschaut, K., & De Hert, P. (2007). Identiteitscontroles in rechtsvergelijkend perspectief. Moet controle op kleur worden gemeten. Orde van de Dag  Criminaliteit en Samenleving, 40, 11–20. Monjardet, D. (2000). Police and the public. European Journal on Criminal Policy and Research, 8(3), 353–378. https://doi.org/10.1023/A:1008 781130862

8  Police Identity Checks in Belgium: A Critical Media Content… 

195

Morrow, W. J., White, M. D., & Fradella, H. F. (2017). After the stop: Exploring the racial/ethnic disparities in police use of force during Terry stops. Police Quarterly, 20(4), 367–396. https://doi.org/10.1177/1098611117708791 Neuendorf, K.  A. (2017). The content analysis guidebook (2nd ed.). SAGE Publications. psr. (2002, November 20). Verhofstadt vindt AEL-patrouilles totaal onaanvaardbaar. De Standaard. rdc. (2015, December 14). Zouzou Ben Chikha ‘vernederd’ door Gentse politie. De Standaard. https://www.standaard.be/cnt/dmf20151213_02019088 Royal Decree of March 25 2003 on the Identity Cards. (2003, March 28). https:// www.ejustice.just.fgov.be/cgi/article_body.pl?language=nl&caller=summary &pub_date=03-­03-­28&numac=2003000227 Ručman, A. B. (2013). Crime news discourse in Slovenia: Critical reflection two decades after transition to ‘democracy’. Crime, Law and Social Change, 59(1), 21–37. https://doi.org/10.1007/s10611-­012-­9388-­8 Saudelli, I. (2021). Mag ik uw identiteitskaart zien? VUB Press. Sinardet, D. (2008). Vlaamse en Franstalige media over Franstaligen en Vlamingen Wederzijdse representaties van de ‘andere’in politieke debatprogramma’s. Media, cultuur, identiteit: Actueel onderzoek naar media en maatschappij, 51–69. Snacken, S., & Verfaillie, K. (2009). Media, public opinion and (criminological) research. In H. Eisendrath & J. P. Van Bendegem (Eds.), It takes two to do science. The puzzeling interactions between science and society (pp. 159–181). VUB Press. Stretmo, L. (2014). Governing the unaccompanied child – Media, policy and practice. Doctoral dissertation, University of Gothenburg. http://hdl.handle. net/2077/36106. Tobias, H., & Joseph, A. (2020). Sustaining systemic racism through psychological gaslighting: Denials of racial profiling and justifications of carding by police utilizing local news media. Race and Justice, 10(4), 424–455. https:// doi.org/10.1177/2153368718760969 Unia. (2020). Position paper: Police selectivity. https://www.unia.be/ files/Documenten/Publicaties_docs/Position_paper_Selectivite_Policiere_ Unia_-­_EN.pdf Van Damme, A. (2015). The impact of police contact on trust and police legitimacy in Belgium. Policing and Society, 27(2), 205–228. https://doi.org/1 0.1080/10439463.2015.1045510

196 

L. De Vocht et al.

Van Damme, A. (2017). How to measure procedurally (un)just behavior during police-citizen interactions. Policing: An International Journal, 40(3), 587–600. https://doi.org/10.1108/PIJPSM-­09-­2016-­0140 van Dijk, T.  A. (1993). Principles of critical discourse analysis. Discourse & Society, 4(2), 249–283. https://doi.org/10.1177/0957926593004002006 Van Haelter, H., & Joye, S. (2020). Vluchtelingen in beeld: een kritische discoursanalyse naar de representatie van Syrische vluchtelingen in Vlaams televisienieuws. Tijdschrift voor Communicatiewetenschap, 48(2). https://doi. org/10.5117/2020.048.002.004 Van Leeuwe, A. (2021). Politionele selectie binnen proactieve identiteitscontroles: (procedureel) rechtvaardig? Master’s thesis, Ghent University, Ghent. Van Praet, S. (2020). Identifying and tackling problematic or abusive forms of police selectivity. An action research on the problematic practices and/or mechanisms of police district of Schaerbeek-Evere-St-Josse (PolBruNo).. https://nicc. fgov.be/upload/publicaties/rapport_43c-­p olice_selectivity-­s vp-­ eng-­202007.pdf Verfaillie, K. (2020). Police stops as a public issue in Belgium: A media content analysis. Abstract from the European Society of Criminology. Kamer van Volksvertegenwoordigers. (2019). Verslag van de commissie voor Binnenlandse zaken houdende etnisch profileren van 21 maart 2019, Parl.St. Kamer 2018–2019, nr. 3683/1. Kamer van Volksvertegenwoordigers. (2021). Voorstel tot wijziging van de wet van 5 augustus 1992 op het politieambt, met het oog op de invoering van een registratie-en motiveringsplicht bij identiteitscontroles, Parl.St. Kamer 2020–2021, nr. 1777/1. wer. (2002, October 31). Abou Jahjah vreest voor ‘klopjacht’ op Marokkanen. De Standaard. https://www.standaard.be/cnt/dst31102002_011. Willemse, F. (2002, November 20). AEL één stap van privé-militie. Het Laatste Nieuws. Wilri, W. (2002, December 17). Meerderheid ziet geen kwaad in AEL-­ patrouilles. Het Laatste Nieuws.

9 Police Stops in Norway: Public Controversies and Minority Status Helene O. I. Gundhus and Randi Solhjell

9.1 Introduction In this chapter, we analyze incidents and events contributing to publicize the issue of police stops in Norway. What are the processes and contextual aspects making police stops controversial in Norway? How have these events changed legislation, leadership, and training related to the practice of police stops? The incidents we analyze highlight, in particular, controversies about police stops in Norway reflecting tensions between the police and minorities. There have been ongoing debates about police disproportionately stopping, controlling, and searching ethnic minorities, due to skin color or other external characteristics, since the 1980s. This critique is mainly based on ethnic minorities’ reported claims and experiences, as the police do not have any obligation to register controls and offer statistical data and, as we will see, there is need for more research on police stops. The

H. O. I. Gundhus (*) • R. Solhjell University of Oslo, Oslo, Norway e-mail: [email protected]; [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 J. de Maillard et al. (eds.), The Politicization of Police Stops in Europe, Palgrave’s Critical Policing Studies, https://doi.org/10.1007/978-3-031-35125-9_9

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critiques of discriminatory practices have, therefore, depended on civil society organizations gathering experiences from ethnic minorities (e.g. Antirasistisk Senter, 2018), and evaluations after high-profile situations (e.g. NOU, 2009). Drawing on this, The European Commission against Racism and Intolerance (ECRI) has, since 2008, stated clearly the need for more statistical research on police discrimination in Norway. This chapter is structured as follows. We will first give a brief background on what is meant by police stops and the controversies related to the term. Further, we have identified key processes making police stops a public issue. First, we will look at the public controversies in terms of information gathering about experiences of racial profiling and ethnic discrimination by the police. This has led to calls for transparency when it comes to discriminatory practices, where for example the idea of a “receipt” system has been debated in the Norwegian parliament. In addition, the death of Eugene Ejike Obiora at the hands of the police on 7 September 2006, also known as the Obiora case, together with racist cartoons at the same police station, created intense public debate about institutional racism within the police and lack of control mechanisms. This led to further debate on police reform, the need for control mechanisms, and aspects of trust in the police. Finally, the extended use of territorial control and identity checks of non-citizens from 2010–2019 is important to understand the public debate and experiences of young ethnic minority men in Norway. In analyzing the context of these events, we explore the significance of civil society organizations, such as the Organisasjonen mot Offentlig Diskriminering Center For Social Justice (OCSJ), public sector agencies, such as The Equality and Anti-Discrimination Ombud (Likestillings- og diskrimineringsombudet,  LDO), and of media discourses to mobilize changes in law enforcement, policy documents, training, and education. In the conclusion, we argue that events like the Obiora case and global movements such as Black Lives Matter will continue to stir public debate due to the nature of police-citizen encounters. These incidents are meetings where many minorities need to justify their belonging to a given society (Solhjell et al., 2019).

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9.2 Background: Police Stops in Norway In Norway, there is a single national police service, which is responsible for all areas of law enforcement and other policing tasks—including border control. The country is divided into 12 police districts, each headed by a chief of police.1 There is also an internationally exceptional organization of the Prosecution Authority, which is organized on three levels: the highest is the Director of Public Prosecution; then comes the Regional Public Prosecution Offices; and the lowest is the Prosecuting Authority in the Police. The Prosecuting Authority in the police are employed in the police organizations and are led by the police chiefs in the police districts. They supervise investigations and prosecutions by the police in the region in addition to prosecuting serious cases before the courts. The National Police Directorate (NPD) allocates resources (budgets and staff) to all districts and also to the five special agencies directly under its control. The Ministry of Justice and Public Security draws up the framework regulations. It also prepares the overall budget and draft legislation when Parliament has to be involved. First, in order to understand the controversies in Norway, we need to identify what is meant by the umbrella term “stop and search” in the Norwegian context. There is no overall stop and search regulation, but multiple laws with different purposes: traffic security; immigration administration; law and order; and investigation. The mandates are also widely different, from the principle of sufficient grounds, to suspicion of criminal activity, to identity checks of potential foreigners. There are different rules on who can determine a control: a police officer; a prosecuting authority in the police; a police chief; and the courts. The requirements for the documentation of the different regulations are few, depending on the legal basis for the inspection. It is only mandatory to make a record if a person is controlled under the Criminal Procedure code. For instance, in searches, this is stated in Criminal Procedure code § 199, second paragraph. The police have debated over  In addition, there are five special agencies. The National Police Immigration Service, The National Criminal Investigation Service, The Norwegian Police University College, The National Authority for Investigation and Prosecution of Economic and Environmental Crime, and the Central Mobile Police Service. 1

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years what this means in practice and where to record it. However, an instruction was given to Oslo Police Districts in the autumn of 2020 by the state attorney: it shall always be registered as a case in the Criminal Case database if a criminal procedural search has been carried out, regardless of whether a finding has been made, regardless of whether the suspicion was based on a misunderstanding and regardless of whether the searched person so wishes. It is not enough to record it in a police operational register. There are some exhortations for documentation in the Police Act, however no obligations.2 In day-to-day activity, where a police officer stops and controls a person, for whatever reasons, there are therefore seldom formal reporting mechanisms. However, if a person is found to be of interest in criminal procedures, there are formal reporting systems. The same procedure exists for immigration controls that reveal non-citizens, meaning persons without the legal permission to stay in the country. Two legal bases are particularly challenging in terms of ethnic profiling. First, the Penal Code § 162 General ID control serves any police purpose and can be applied to anyone with a factual reason decided by the police. There are no procedural requirements, but they can be recorded in police operational systems for documentation. Second, the Immigration Act §21 is for immigration control purpose. Time, place, and situation are reasons for a control if the person has a legal residence permit. The control is only recorded if the person does not have a legal right to stay. Immigration law §21 and criminal code §162 are also the most diffuse legal bases, opening up the potential for police abuse and misconduct, and the source of most complaints. They have become controversial legislation since there is a low threshold for conducting the police stop, and without any mandatory recording of the stop. In practice, this means that the police have wide discretionary freedom to carry out stops and intervene in people’s lives, with seldom any requirement to record the

 Section 7-1 of the Police Instructions states that a record shall be kept “… of all significant matters and information concerning the arrangement and performance of the police service…”. Section 7-6 says that one should report on information or matters that may be of importance to the police in general or of interest in the performance of services in individual cases. It is encouraged to record a stop, but there are no absolute requirements. 2

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incidents. As we will show, this lack of documentation has raised several debates about trust in the police. The most important regulations of breaches of anti-discrimination legislation by the police are claims from the public made to a special agency investigating violations in the police. The Norwegian Equality and Anti-­ Discrimination Ombudsman (LDO) represents the interests of those who are discriminated against and shall also prevent discrimination. It has a statutory responsibility to monitor whether Norwegian law, policy, and administrative practice comply with The UN International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). ICERD therefore obliges Norwegian authorities to make consistent efforts to prevent and deal with racism and discrimination. As we will see, the dominant frame for criticism of police stops in Norway is tightly connected to human rights and fundamental freedoms. The Ombudsman advises national authorities and works to promote equality and non-discrimination, and, as we will show, undertakes knowledge exchange and close dialogue with NGOs in civil society. It is also expected that the state develop and implement policies and measures to promote increased inclusion, participation, and equality for groups that are exposed to discrimination and insufficient inclusion. The Ombudsman is in charge of the Equality and Anti-­Discrimination Tribunal, which was established in 2018. The Tribunal is an independent administrative body which handles complaints about breaches of anti-discrimination legislation. Having a case heard by the tribunal is an alternative to going through the courts, and it is free of charge. The Tribunal receives complaints and makes final, legally binding decisions on harassment and discrimination cases. It can also award compensation. However, recent research concludes that it is a higher threshold for processing cases than in the previous two-instance enforcement structure. There are several reasons. The most important is that advises from Ombudsman is reduced and there is a lack of free legal aid in a complex legislation, leading to the process becoming an “enforcement labyrinth” (Strand & Hellum, 2022). The use of stop powers is a common police method and frequently used by the Norwegian police. For instance, police stops can lead to searches and in turn lead to arrests (Sollund, 2007). The stop of the person can also lead to searches of the police register. In the presentations of

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the incidents that have led to public debate, we will see that the lack of documentation of the police stop practice, and also the grey zones where police stop and talk to citizens, might be understood quite differently by the citizen and the police. Moreover, the laws that have initiated the most debates are those that are either general, for instance ID checks authorized in Penal Code §162, or aimed at assumed foreigners, such as Immigration Code §21, where the police are the decision makers, not the prosecutors. In this regard, it is important to note that there is no general obligation to carry ID cards in Norway, but the police have to believe what you say, otherwise they can ask for documentation. The police have also repeatedly been criticized for requiring identification papers, even though citizens are not obliged to carry them.

9.3 Unsystematic Knowledge on Racial Profiling and Ethnic Discrimination One of the main controversies in Norway when it comes to police stops is the lack of knowledge and statistical data on stop and search situations conducted by the police. This absence of registration and documentation has fueled a public debate about disproportionate over-control of ethnic minorities. The European Commission against Racism and Intolerance (ECRI), tasked to review member states’ legislation and suggest action, concluded in their second country report in 1999 that there is a need to raise awareness among police in Norway about discrimination, as “foreign” appearance seemed to guide police stops in the streets (ECRI, 1999). Since then, civil society organizations, such as OCSJ and The Norwegian Centre against Racism including the youth branch Agenda X, and, more recently, the African Student Association and Arise, who initiated the Black Lives Matter demonstration in Oslo in 2020, have shared experiences of racial profiling of ethnic minorities. The lack of detailed research on police practice has been a particular recurrent theme, as documented by LDO (2020) and ECRI’s six county reports on Norway (ECRI, 1997–2021). This is part of the general framing of police stops in a fundamental rights context, preventing unlawful police stops. To be

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lawful, fair and effective, police stops must be used within the boundaries of the law. The activity must respect both equal treatment and personal data protection requirements. It is also recommended that, during police stops, details of the activity should be recorded and stored. Furthermore, in 2008, the ECRI (2009, p. 7) requested that the Police Directorate carry out research to identify racial profiling. However, the Norwegian authorities did not initiate this in-depth study. Instead, there are several active civil society organizations that regularly address the issue that police disproportionately stop and search young, minority men in Norway. This topic has been raised for decades and, most recently, has been high on the public agenda after the killing of George Floyd in the United States and the Black Lives Matter Movement.3 OCSJ has been an active civil society organization since it was established in 1992 and disseminates information, publishes reports on discrimination, and is active in official political decisions, for example white papers, such as controlling police misconduct in handling minorities. As early as 1994, OCSJ, managed to put the potential existence of racial profiling on the political agenda in Norway and push for systematic knowledge. The background was that OCSJ, in 1993, managed to collect over 5000 signatures from people who had experienced both police and customs control as profiling and harassing. These signatures were then handed over to the president of the parliament, Kirsti Kolle Grøndahl. Some years later, OCSJ’s initiative was developed into a written statement by the Norwegian parliament and was supported by the Norwegian Labor Party and the Socialist Left Party (Norwegian Parliament, 2002–2003). This was an attempt to push for systematic knowledge that could follow the recording and monitoring of stop and search practices in Norway, especially when it comes to ethnic minorities. The statement included a review of what was available in England and Scotland in learning from countries that had tested a receipt system. In the report, it was proposed that everyone who is checked by the police, regardless of background, should receive a receipt and documentation of the check they were subjected to. The receipt should contain information about the time,  For instance the Socialist Left party proposed to the parliament in 2020 to investigate the use of ethnic profiling in the Norwegian police, which did not go through. 3

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place, type of check, and the service number of the police officer who performed the check. The White Paper also presented a plan to carry out a pilot project in two cities. However, a receipt scheme or the pilot projects were never conducted. The Conservative Party and eventually the Progress Party claimed that the results from other countries who had tested the receipt system were less positive and that it would be costly, bureaucratic, and hinder the police in doing “real police work” (NTB, 2004). Secondly, there were legal aspects of person sensitive data when it comes to recording ethnicity (Norwegian Parliament, 2003–2004). On the latter, legal experts in the police argued that the receipt system runs into the problem of registering ethnicity, which is a discriminatory problem (Personal Data Act, 2018). On the former, the police union agreed that it would increase bureaucracy and mistrust. Although the receipt system was not tested, the Police Directorate commissioned research on the claims of racial profiling in 2003. This was due to documentation and suggestions from the Norwegian government’s plan of action against racism and discrimination (2002–2006) and a report on racism and discrimination in the police by the Ministry of Justice (Norwegian Parliament, 2002–2003). The research was conducted by criminologist Ragnhild Sollund with the aim of providing recommendations for measures against over-control of ethnic minorities (Sollund, 2007). The evaluation drew on fieldwork within the police and interviews with youth and civil society organizations, such as OCSJ, primarily in Oslo. Contrary to the expectations of civil society, the recommendations were not to implement a receipt scheme, but to look more closely at education, training, and occupational ethics. The idea of implementing a receipt scheme has been a recurrent proposal from civil society organizations and political parties involved in revealing ethnic profiling. Both the Center Against Ethnic Discrimination and the Anti-racist Center were active in proposing this in order to document what they claim is a disproportionate practice. Common to debates in other European countries discussed in this book, the argument is that, without documentation, the mistrust will not be solved. This can also be linked to the fundamental rights framework that highlights recording as a way to monitor and control and to make the practice more accountable.

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On the other side, the police union claims that a receipt scheme will increase mistrust, since it will make it more difficult to talk informally with citizens and argues that dialogue is an important trust-building measure. The police union also argue that the Police Act (1995) in general prohibits random control making a receipt system redundant. However, due to a lack of transparency in registering stops with no outcome, this governance is based on trust. It is argued that wide discretionary tools are given to the police due to their high professional educational competences, which will be further discussed below. Almost two decades after the first parliament discussion on introducing a receipt system, in November 2021, a radical shift occurred in the political landscape of governing the police’ stop and search practices. OCSJ’s efforts to implement a receipt system was supported by the Socialist Left, the Green party, Red, and the Labor party. As a test, Oslo Police District was selected as pilot on a receipt system in 2022 (Lindvåg, 2021). This can be seen as the result of a combination of coinciding factors. First, the majority of socialist-green parties in (supporting) the government (2021–) and the Oslo City Council enabled the vote in favor for such a system and offering Oslo to be a place for testing it. Second, a Black Lives Matter demonstration in Oslo (June 2020) during the pandemic demonstrated the popular demand for change in an otherwise high-trust society (Ugelvik, 2016). Third, push from within the police force, especially in Oslo, where policing a plural society and having police officers with minority background enabled a recognition of the problems. At the leadership level, former Norwegian police director, Benedicte Bjørnland, in November 2021, expressed concern on how young ethnic minorities experience being controlled “over and over again” and she supported the need to pilot the receipt system (Grindem, 2021a). This recent development is a change in official rhetoric from the police, admitting there is a problem with suspicion and control of ethnic minorities and the support for testing a system that can document and build knowledge to gain better trust between the police and ethnic minorities. At a police union level, however, there remains skepticism about bureaucratization (Grindem, 2021b). At the time of writing, the Oslo Police District is tasked by the Oslo City Council, specifically the Department of Employment, Integration, and Social Services, to lead a working group

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that will present knowledge and suggestions on best practice concerning police stops from an anti-discrimination perspective. The working group consists of five representatives from the Oslo Police District and three from outside, where the latter consist of representatives from OCSJ, the civil society organization Minotenk and the author Solhjell.

9.4 High-Profile Cases and Police Criticism: The Death of Eugene Ejike Obiora At the same time that Sollund conducted her research in Oslo and some other process oriented research was planned in Trondheim (Berg et al., 2007): the tragic death of Eugene Ejike Obiora at the hands of the police in the city of Trondheim on 7 September 2006 occurred, also known as the Obiora case. Obiora was a Norwegian citizen with Nigerian background who, preceding his arrest, was denied a social benefit application and was “acting threateningly”, according to the staff who decided to call the police. Four police officers were involved in the incident and used an arrest technique reserved only for emergency situations. Obiora lost consciousness and was taken to the hospital by the police officers, where they attempted resuscitation but he was pronounced dead. The Norwegian Bureau for the Investigation of Police Affairs, an independent agency that is administratively under the Ministry of Justice and professionally under The Director of Public Prosecutions, conducted an investigation the same year. They concluded that Obiora died of strangulation, meaning lack of oxygen due to several factors: pressure on the throat; resisting arrest; and lying face down for some time (Norwegian Bureau for the Investigation  of Police Affairs, 2007). The case was dropped and no charges were issued against the four police officers involved. This led to massive protests and media attention, where one of the police officers involved was publicly named and shamed. The specific arrest technique used, prone arrest (lying face down), received considerable media and political attention. For instance, in a public statement by the Ombudsman in 2010, it was concluded that the police and justice sector, specifically the National Police Directorate and

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the National Police University College, should take responsibility for the lack of direction and teaching when it comes to the medical dangers of lying face down (Norwegian Parliamentary Ombud, 2010). In addition, at the time of the investigation, all of the specialized personnel in the Bureau for the Investigation of Police Affairs had a police background and, thus, the issue of “closing ranks’ and treating police affairs informally without integrity and accountability was publicly discussed” (Filstad & Gottschalk, 2011). The death of Obiora and surrounding media and public attention, through demonstrations in both Trondheim and Oslo in the wake of his death, sparked a focus on racism in the police (Pollack & Allern, 2014). Citizen surveys, initiated by the National Police Directorate in 2008, also confirmed that ethnic minorities, especially the age group 18–35 in urban areas of Norway had lower levels of trust in the police (TNS, 2008). In the young group with ethnic minority status, 65% reported that they had an average or high degree of trust in the police, while the reference group reported 79% and the general population reported 83%. In annual surveys regarding the public’s perception of the police and general safety, the focus on immigrant background varies and are not as specifically focused as the survey conducted in 2008, in which an entire chapter was dedicated to the subject (The  Police, 2014–2021). The Police Directorate funded research on the use of force, and arrest in particular, conducted by Anders Lohne Lie, an arrest technique teacher at the Norwegian Police University College (Lie, 2010). Lie and Lagestad (2011) also published a new curriculum on arrest techniques taught at the College to avoid potentially life threatening situations due to stop and hold situations.4 Moreover, Dahl and Myhrer (2009), two legal scholars at the College, also emphasized that more than technical skills were necessary, namely an understanding of the ethical boundaries for when, why, and the legitimacy of different actions (based on the Norwegian Police Law paragraph 6). In other words, there was a real change in police education as a result of these other scholars’ work, both  Although less discussed publically, there was the Agoncha-Kohn case 8. oktober 2004, where, similar to Obiara, Agoncha-Kohn was arrested after the police had used pepper spray against him and placed a hood on his head that eventually led to his death from suffocation an hour later. 4

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in technical and ethical (legal) training of police officers and police students. From 2011, the bachelor’s degree program has also worked hard to integrate police stops skills and knowledge, both in theory and practice. The aim was to improve dialogue, communication, and procedural justice skills. The Obiora case, therefore, had some reform effects on education and training. The debate in the aftermath of Obiora case also led to several projects organized by the National Police Directorate on the topic Policing diversity. One highly relevant initiative in this context was a project to increase trust between ethnic minorities and the police. It was implemented in the larger cities in Norway: Bergen, Oslo, Trondheim, and also in a smaller city, Drammen, with a predominance of ethnic minority population. The Police Immigration Service was also part of the project. A group at the Police University College evaluated the project (Egge et al., 2010), highlighting different dialogue and trust-building measures to restore and improve relations between the police and ethnic minorities. An important finding was that police offices were afraid of initiating dialogue with the ethnic minority population and were uncertain about their own abilities in these meetings. One of the suggestions was to train the police to behave with more confidence in their own skills and initiate contact not only in conflict situations. Another was to introduce diversity coordinators in all police districts. Training courses in Oslo Police District entitled “Streets of Oslo” (from 2009) and the recent “Fair police” (from 2018) are the outcome of these efforts, alongside increased diversity in police students recruits and increased recruiting of diversity coordinators in Oslo Police District. The diversity coordinators, according to the National Police Directorate, are an effort to encourage dialogue with minority populations and act to prevent crime against minority groups (The  Police, 2019). However, there is still a lack of diversity coordinators in police districts outside Oslo. Not until 2022 was a police officer from Oslo Police District hired to implement the “Fair Police” training course in all the 12 police districts. This has been recommended by ECRI for several years and, as we will see, also by the committee for evaluation of control mechanism, which was set up in the aftermath of the Obiora case (NOU, 2009).

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Control Mechanisms and Trust after Obiora To scrutinize the need for a general reform after the Obiora case, a Norwegian Official Report (Norges offentlige utredninger,  NOU) was commissioned in 2008. This is a report published by a committee appointed by the Norwegian parliament to explore control and accountability mechanisms in the police. The NOU was led by Liv Finstad, Professor of Criminology at the University of Oslo, and entitled “A responsible police—openness, control and teaching” (NOU, 2009). The purpose of the report was to investigate more broadly the control mechanisms in the police, especially in light of the lack of independence and quality of the Norwegian Bureau for the Investigation of Police Affairs, as well as the internal police complaint systems. It was a great shock among parts of the Norwegian population that the police officers were not convicted for murder, particularly those criticizing police for being racists. In addition, parliament saw the need to review the stop, hold, and arrest situation in the police based on the Obiora case. The report included a study of critical media images of the police (Allern & Pollack, 2009). The analysis identified two sharply different media discourse after the Obiora case, namely the “racism” and the “police” discourses. The first discourse was shaped by Obiora’s family and friends, their lawyer and Norwegian-African organizations, anti-racism youth groups and workers union in Trondheim. The police discourse is represented and maintained by the police, the police union, and involved lawyers and the main message is that the police only do what they are supposed to do. The death of Obiora is regrettable, but nothing criminal happened. The authors (2009) argue that the racism discourse dominates the public debate due to the nature of journalism that reflects critical perspectives on the police and their role as public law enforcers, emphasizing abuse of power or other problems. The decision not to investigate the case as a criminal case is seen as a sign of institutional racism. The point Allern and Pollack (2009) make is that, when such mediated discourses emerge, the single case is linked to commonalities with similar single cases. The making of these connections reinforces the racist dimension by focusing on such patterns. Allern and Pollack (2009) argue that

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the case was to become something else and more than an isolated police scandal, which primarily affected involved parties and people within the police as an institution. It also became a political scandal, a breach of norms that could be linked to politicians’ lack of control in terms of handling institutional racism. The discourse of racism affects the view of how control mechanisms in the police manage claims of discrimination, particularly ethnic discrimination. They conclude that how the control mechanisms, such as the Norwegian Bureau of Police Affairs, deal with claims of discrimination is affecting public trust in the police. However, the outcome of the report was that the police need to encourage internal debate and organizational learning, rather than a huge reform of the control of the police.

9.5 Identity Checks and Territorial Control of “Foreign Criminals” The police’s control of migration is an area where their legitimacy is under strong pressure from both civil society organizations, ECRI and LDO. Migration control at and within the national borders have increasingly become part of the everyday police practice in Norway (Gundhus, 2017). While the Police Immigration Service is tasked with registering asylum seekers and forcibly deporting foreign nationals without a residence permit, the police districts are tasked with police stops where they ID-check foreign nationals, initiating deportation cases and investigating cases involving foreign nationals. The Immigration Act (2008, §21) requires that an immigration control can take place when there is reason to assume that the person in question is a foreigner and that the time, place, and situation give reason for such control. The Act gives police officers legal competence to assess whether there is a legal ground for carrying out an immigration control. The police may require information that is necessary to establish identity and to clarify the legal right to stay in Norway. The controlled person is obliged to present the necessary documentation, but is not obliged to carry this with him/her, but the police have repeatedly been criticized for

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requiring to see identification papers. Police officers’ discretion to decide who to stop is, therefore, wide and the threshold is low.5 In addition, the target set for deportation of non-citizens increased from 2200 in 2015 to 9000  in 2018. In 2010, the Director of Public Prosecutions issued an instruction to strengthen police immigration control on Norwegian territory (RPOD, 2010–2011). Together with increased target figures, this has led to the police conducting more immigration ID checks, both in public space and in relation to the suspicion of crime (Hammer et al., 2020). The scholarly crimmigration debate, namely the hybrid police controls between punishment and border controls and between immigration control and crime control (Johansen et al., 2013, p. 20), is found in public debates. In particular, the discretionary power to use immigration law, in combination with performance indicators for deportation, has led to public debates about racial profiling in the police. Especially after the influx of asylum seekers in 2016 and 2017, Oslo Police District received an increase in complaints from people experiencing a disproportionate amount of police stops (Babic & Ogre, 2018). The police districts that received the complaints concluded that this was due to police stops targeting non-citizens and so-called foreigners. The police control at McDonalds in Grorud where Immanuel Osei (20) and Samai Hassan (19) were controlled, searched, and photographed by the police without any explanation (Aspeli & Giæver, 2018) got a lot of media attention, as did experiences of police racism documented in a report from the Anti-­ Racist Center (2018). The increase in police stops due to deportation targets was also observed by ECRI (2021). This especially applies to criticisms of the over-control of ethnic minority youth. Furthermore, the issue of police immigration control in Norway has attracted scholarly debate in the last decade. Topics include police categorization, classification, and overgeneralized perceptions of people and  Immigration act § 21 is in principle a provision that shall take into account the immigration administration (“enforcement of the provisions on aliens’ entry and stay in the realm”), but Police Directorate has stated that the provision can be used for more than immigration administration: “It is pointed out in this context that internal immigration control must not be exercised only as an administrative control, but must be incorporated into the overall activities that the police carry out to combat crime”. 5

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vulnerable groups (e.g. Boysen & Viblemo, 2018; Gundhus & Jansen, 2020; Gundhus & Egge, 2013; Hammer et al., 2020) and experiences of discrimination and stigmatization (Haller et  al., 2018; Solhjell, 2019; Solhjell et al., 2019; Saarikkomäki et al., 2020). For instance, Hammer et  al. (2020) study of police officers in the immigration control unit found they referred to their own “gut feeling” or “intuition” as important elements in the exercise of discretion. Skin color was seen as an indication, alongside other signs, of how police officers envisioned a “criminal foreigner” to look, behave, or dress. The findings from this study correspond to those of Solhjell et al. (2019) interviewing young ethnic minorities in the Nordic countries and their experiences of being selected in police stops. Specifically, they referred to social markers that included clothing and styles, hanging out in groups in public spaces, their ethnicity, neighborhoods where they lived and gender (male) as reasons for suspicion. These social markers are often debated by civil society organizations and in public debates with young ethnic minorities that feel targeted for the wrong reasons. Moreover, what the police might define as the familiar look of a suspected criminal can also be seen as typifying and racializing the police gaze (Schclarek Mulinari & Keskinen, 2020, p. 8). Scholars in the Nordic countries have made the connection between the historical backdrop of racial discrimination toward ethnic and national minorities and racial profiling in the region (Barker, 2012; Schclarek Mulinari & Keskinen, 2020). However, the findings from Norway reveal that the figure of the “crimmigrant” other is important in triggering police stops and law enforcement in response to migration (Franko, 2019). It legitimizes and justifies the suspicious gaze that identifies potentially criminal migrants (Gundhus and Jansen 2020). Discursive and coercive operational practices are therefore co-constitutive in conceptualizing and pursuing security in the policing of migration in Norway. This preemptive approach has unintended consequences for migrants’ situation. They become more disproportionately exposed to police control. The use of penal power leading to the social production of the “crimmigrant” other also justifies these practices in a welfare state (Franko, 2019). Applying immigration law to target potential criminals goes beyond the intention of the law and has led to criticisms of the police using racial profiling.

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Overall, the consequence is that, despite citizens in general having high levels of trust in the police in Norway (Thomassen & Kääriäinen, 2016), there are some groups that have, over three decades, been voicing mistrust as to the lawfulness of police stops. This can be illustrated by Ugelvik’s (2016) observation of low-trust policing in a high-trust society in studying an immigration detention center in Norway. Notwithstanding overall legitimacy of the police, pockets of mistrust (in the case of detaining immigrants in prison-like places) may affect all other aspects of policing. We see that the convergence of crime and migration control is the expression of a new way of exercising social exclusion by the police. This means that social control is differently practiced toward those defined as members and nonmembers. The same violation or petty crime can lead to non-response from the police if the person is a Norwegian citizen, and punishment and deportation if the person is an European Economic Community (EEC) citizen.

9.6 New Initiatives and Concluding Remarks Criticism of the police has continued during the pandemic, including civil society demands for receipts schemes in control situations. The Black Lives Matter Movement, after the killing of George Floyd in 2019, led to widespread publicity and a substantial protest movement in larger Norwegian cities in 2020. In Oslo, on 5 June 2020, 12–15,000 people gathered outside the Norwegian parliament in a “We can’t breathe” demonstration (Fjeld et al., 2020). In line with the international protesters, an 8 minute and 46 second silence was held in memory of George Floyd’s death. The organizers campaigned for the following changes: (1) implementation of a receipt system, (2) review of section 6 of the Police Act on the use of force, and (3) prohibition on strangulation (throat grip). A petition for an obligatory documentation system for the use of stop and search power in the police was submitted to the Ministry of Justice on 15 June 2020 with 18,000 signatures and the online appeal had more than 29,000 signatures (change.org, 2020), but the senders have not received a response. However, the media and political attention also led to the Chief of Oslo Police District, Beate Gangås, a former Equality and Anti-Discrimination Ombudsman, inviting various civil society

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organizations and representatives to the Oslo Police District to share their experiences of discrimination and work to transform relations between police officers and ethnic minorities. The intention was both to calm the pressure and initiate change. A similar initiative was conducted by the Norwegian Police University College on 28 August 2020, to achieve a more balanced intake of students from a variety of ethnic backgrounds (less than 10% of students are identified with an ethnic minority background) and discuss teaching and research at the college with input from civil society and the Ombudsman. A further issue around police stops, that of drug users, has been recently debated (NOU, 2019). They seldom file complaints to the police. This was revealed in hearings during the drug reform process in 2021, and it was the police that announced their overly coercive use of stop and search. In April 2021 also, a case from the Eastern Police District received a lot of attention in the media after the police physically searched a boy on the street for drugs while friends filmed the event and spread it on social media (Hagfors, 2021). The Special Unit for Police Cases opened an investigation and The Director of Public Prosecutions requested a principle investigation of the legality behind police control practices in drug related controls. The Director of Public Prosecution also reacted with a circular instruction stating that it is not allowed to search a suspected drug user with the aim of uncovering an unknown seller of the drug, search the mobile phone to reveal the extent of the drug use, or conduct drug testing in the form of a blood or urine test to confirm suspicion of drug use alone. Investigations into drug sales must be aimed at those suspected of sales, it states, and it is not allowed to search for user doses (Director of Public Prosecutions of Norway, 2021). This circular will be further controlled and followed up by the prosecutors in the police organization, to ensure that the search is carried out so that it is exclusively aimed at the offense being investigated, the selling of drugs, not the use of drugs. In addition, the introduction of a receipt system continues to be discussed while awaiting the outcomes from the working group in Oslo Police District in 2022. In contrast to the public discussions in Finland, the topic is therefore highly politicized in the Norwegian context. The police admit to a certain degree the need for changes of the police occupational culture, practice,

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and training to reduce disproportionate control. In conclusion, the main areas of concern—namely knowledge on stop and search and the police use of discretion in targeting certain groups—is likely to continue being debated in Norway as none of these issues has been “solved”. There is a clear need for a requirement to register police stops, particularly in cases where the police have a low threshold, such as ID checks. However, as Hoel and Bjørkelo (2017) argue, there is also a need for ethical dialogue between the police and targeted groups and experience based learning on motives and intentions for stop and search in the police force.

References Allern, S., & Pollack, E. (2009). Criticism of the Police in the News. Discourses and Frames in the News Media’s Coverage of the Norwegian Bureau for the Investigation of Police Affairs (Appendix 5 of Official Norwegian Reports, (NOU) 2009: 12, Et ansvarlig politi. Åpenhet, kontroll, læring, Issue. Antirasistisk Senter. (2018). “Vi vil ikke leke med deg fordi du er brun”: En undersøkelse av opplevd rasisme blant ungdom. Aspeli, I., & Giæver, H. (2018). Kamerater ransaket av politiet på McDonalds: − Ydmykende, krenkende og flaut [Buddies ransacked by the police at McDonalds  - Humiliating, offensive and embarrassing. VG. https://www. vg.no/nyheter/innenriks/i/a27bWM/kamerater-­r ansaket-­a v-­p olitiet-­ paa-­mcdonalds-­ydmykende-­krenkende-­og-­flaut Babic, E., & Ogre, M. (2018). Krever at politiet begrenser såkalte tilfeldige kontroller [Demands that the police limit so-called random controls]. NRK. https://www.nrk.no/osloogviken/krever-­at-­politiet-­begrenser­sakalte-­tilfeldige-­kontroller-­1.13908837 Barker, V. (2012). Nordic Exceptionalism revisited: Explaining the paradox of a Janus-faced penal regime. Theoretical Criminology, 17(1), 5–25. https://doi. org/10.1177/1362480612468935 Berg, B., Lauritsen, K., & Valenta, M. (2007). Tillit på prøve: undersøkelse om etikk, mangfold og etnisk diskriminering i Sør-Trøndelag politidistrikt. Boysen, K., & Vilma, T. (2018). The changing influx of asylum seekers in 2014–2016: Norway’s response (Kristiansand, Issue. https://www.udi.no/globalassets/global/european-­migration-­network_i/studies-­reports/norways-­ respons-­to-­emn-­report-­changing-­influx.pdf

216 

H. O. I. Gundhus and R. Solhjell

change.org. (2020). We can’t breathe  - vi får ikke puste! Arise. https://www. change.org/p/stortinget-­we-­can-­t-­breathe-­vi-­f%C3%A5r-­ikke-­puste Dahl, S., & Myhrer, T.-G. (2009). Å kunne vurdere, forklare og beklage: seminar med praksisveiledere om makt og etikk i 2008 og 2009. Director of Public Prosecutions of Norway. (2021). «Påtalemyndighetens legalitetskontroll med tvangsmiddelbruk – relevant etterforskingsformål og forholdsmessighet – særlig om ransaking i narkotikasaker» [The public prosecutions’ legality check with the use of coercive force - relevant investigative purpose and proportionality  - especially about searches in drug cases]. Oslo: Norway ECRI. (1997–2021). Country monitoring in Norway. https://www.coe.int/en/ web/european-­commission-­against-­racism-­and-­intolerance/norway ECRI. (1999). Second Report on Norway. https://rm.coe.int/second-­report-­ on-­norway/16808b5974 ECRI. (2009). Report on Norway: Fourth monitoring cycle. https://rm.coe.int/ fourth-­report-­on-­norway/16808b597a ECRI. (2021). Country report on Norway: sixth monitoring cycle. https://rm.coe. int/6th-­report-­on-­norway-­/1680a17dd8 Egge, M., Berg, M., & Johansen, N. B. (2010). En god dag på jobben: evaluering av prosjektet «Trygghet og tillit». https://phs.brage.unit.no/phs-­xmlui/bitstream/handle/11250/175074/En%20god%20dag.pdf?sequence=1 &isAllowed=y Filstad, C., & Gottschalk, P. (2011). Performance evaluation of police oversight agencies. Policing and Society, 21(1), 96–109. https://doi.org/10.108 0/10439463.2010.540653 Fjeld, J., Janssen, M. R.-N., Sæthre, Ø., Langsem, B., Jor, B. L., Monsen, Ø. N., Sletten, J., Andersen, Ø., & Rønning, M. (2020). Tusenvis demonstrerer i Oslo [Thousands demonstrate in Oslo]. Dagbladet. https://www.dagbladet. no/nyheter/tusenvis-­demonstrerer-­i-­oslo/72537492 Franko, K. (2019). The Crimmigrant Other: Migration and Penal Power. London: Taylor & Francis. Grindem, K. (2021a). Bjørnland: - Viktig å utrede behovet for en form for kvitteringsordning [Bjørnland: - Important to assess the need for a type of reciept system]. Police Forum. Grindem, K. (2021b). Vil ha kvitteringsordning: - Folk opplever at de blir overkontrollert av politiet [Want reciepts - People experience an over control by the police]. Police Forum. https://www.politiforum.no/vil-­ha-­kvitteringsordning %2D%2D-­folk-­opplever-­at-­de-­blir-­overkontrollert-­av-­politiet/218204

9  Police Stops in Norway: Public Controversies and Minority… 

217

Gundhus, H. O., & Jansen, P. T. (2020). Pre-crime and Policing of Migrants: Anticipatory Action Meets Management of Concerns. Theoretical Criminology, 24(1), 90–109. https://doi.org/10.1177/1362480619873347 Gundhus, H. O. I. (2017). Discretion as an Obstacle: Police Culture, Change, and Governance in a Norwegian Context. Policing: A Journal of Policy and Practice, 11(3), 258–272. https://doi.org/10.1093/police/pax012 Gundhus, H. O. I., & Egge, M. (2013). Grenser for forebygging?: “De unge fremmede” og kriminalitetsforebyggende politiarbeid. In N.  B. Johansen, T. Ugelvik, & K. F. Aas (Eds.), Krimmigrasjon? Den nye kontrollen av de fremmede (pp. 210–225). Universitetsforlaget. Hagfors, C. L. (2021). Politiet kroppsvisiterte mindreårig gutt utendørs – brukte lommelykt i skrittet [Police body searched a minor boy outside - used flash light in the groin]. VG. https://www.vg.no/nyheter/innenriks/i/bnxA8q/ politiet-­kroppsvisiterte-­mindreaarig-­gutt-­utendoers-­brukte-­lommelykt-­i-­ skrittet Haller, M. B., Solhjell, R., Saarikkomäki, E., Kolind, T., Hunt, G., & Wästerfors, D. (2018). Minor harassments: Ethnic minority youth in the Nordic countries and their perceptions of the police. Criminology & Criminal Justice., First online. https://doi.org/10.1177/1748895818800744 Hammer, D., Gundhus, H. O. I., & Sveaass, N. (2020). Den gode fangen: politiets utlendingskontroll i lys av skjønnsutøvelse og legitimitet. Nordic Journal of Studies in Policing, 7(3), 264–285. 10.18261/issn.2703-7045-2020-03-06. Hoel, L., & Bjørkelo, B. (2017). Kan det være godt politiarbeid? Nordisk politiforskning, 4(2), 187–210. https://doi.org/10.18261/issn.1894-­8693-­ 2017-­02-­06 Johansen, N. B., Ugelvik, T., & Aas, K. F. (2013). Globalisering, staten og de fremmede. In N. B. Johansen, T. Ugelvik, & K. F. Aas (Eds.), Krimmigrasjon? Den nye kontrollen av de fremmede. Universitetsforlaget. LDO. (2020). Diskrimineringsretten 2020. https://www.ldo.no/globalassets/_ ldo_2019/03_ombudet-­og-­samfunnet/rapporter/diskrimineringsrett/ldo_ diskrimineringsrettsrapporten_2020-­web.pdf Lie, A. L. (2010). Politiets bruk av fysisk makt [The police’ use of phsycal force]. Lie, A. L., & Lagestad, P. (2011). Arrestasjonsteknikk. Gyldendal Akademiske. Lindvåg, A.  W. H. (2021). Oslo tester ny metode mot etnisk profilering: Kvittering når politiet stopper deg [Oslo testing new method against ethnic profiling: Reciept when the police stops you]. Vårt Land. https://www.vl.no/ nyheter/2021/12/03/oslo-­t ester-­n y-­m etode-­m ot-­e tnisk-­p rofilering-­ kvittering-­nar-­politiet-­stopper-­deg/

218 

H. O. I. Gundhus and R. Solhjell

Norwegian Bureau for the Investigation of Police Affairs. (2007). Investigating Obiora-case https://www.spesialenheten.no/fagartikler/10-­ar-­med-­spesialen heten/ Norwegian Parliament. (2002–2003). Kvitteringar frå politiet ved visitasjon og annan kontroll [Reciept from the police during visitations and other controls]. Oslo Retrieved from https://www.regjeringen.no/contentassets/f22bba9 ff312427c82427982ddf40fb2/nn-­no/pdfs/stm200220030046000dddpdfs.pdf Norwegian Parliament. (2003–2004). Innstilling fra justiskomiteen om kvitteringar frå politiet ved visitasjon og annan kontroll [statement from the justice committee regarding receipt from the police during visitations and other controls]. (127). Oslo. Retrieved from https://www.stortinget.no/globalassets/pdf/ innstillinger/stortinget/2003-­2004/inns-­200304-­127.pdf Norwegian Parliamentary Ombud. (2010). Ansvaret for politiets maktbruk i forbindelse med pågripelser – særlig knyttet til bruken av mageleie [Responsability for the police’ use of force during arrest - especially regarding face down] https:// www.sivilombudet.no/uttalelser/ansvaret-­for-­politiets-­maktbruk-­i-­forbindelse-­ med-­pagripelser-­saerlig-­knyttet-­til-­bruken-­av-­mageleie/ NOU. (2009). Et ansvarlig politi: Åpenhet, kontroll og læring [A responsible police: Openness, control and learning]. NOU. (2019). Rusreform  – fra straff til hjelp [Drug reform  - from punishment to help]. NTB. (2004). Fr.p. dropper politikvitteringer [Progress Party let fall police reciepts] Aftenposten. https://www.aftenposten.no/norge/politikk/i/alKod/ frp-­dropper-­politikvitteringer Personal Data Act. (15. juni 2018). LOV-2018-06-15-38. Norway. Police. (2014–2021). Politiets nasjonale innbyggerundersøkelse [The police’ national citizens survey 2014–2021]. https://www.politiet.no/aktuelt-­tall-­og-­fakta/ tall-­og-­fakta/innbyggerundersokelsen/ Police. (2019). Annual report 2019. Oslo. Retrieved from https://www.regjeringen.no/contentassets/80197702ddb144e8a016a040e656751f/arsrapport­2019-­pod.pdf Police Act. (1995). https://app.uio.no/ub/ujur/oversatte-­lover/data/lov-­19950 804-­053-­eng.pdf Pollack, E., & Allern, S. (2014). Criticism of the Police in the News. Nordicom Review, 35(1), 33–50. https://doi.org/10.2478/nor-­2014-­0003 RPOD. (2010–2011). Politiets utøvelse av utlendingskontroll på territoriet, herunder i grenseområdene. The Police Directorat.

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Saarikkomäki, E., Birk Haller, M., Solhjell, R., Alvesalo-Kuusi, A., Kolind, T., Hunt, G., & Burcar Alm, V. (2020). Suspected or protected? Perceptions of procedural justice in ethnic minority youth’s descriptions of police relations. Policing and Society, 31(4), 1–16. https://doi.org/10.1080/1043946 3.2020.1747462 Schclarek Mulinari, L., & Keskinen, S. (2020). Racial profiling in the racial welfare state: Examining the order of policing in the Nordic region. Theoretical Criminology. https://doi.org/10.1177/1362480620914914 Solhjell, R. (2019). Hele skolen trenger ikke den oppmerksomheten. Nordisk politiforskning, 6(2), 156–168. https://doi.org/10.18261/issn.1894-­8693-­2 019-­02-­06 Solhjell, R., Saarikkomäki, E., Haller, M.  B., Wästerfors, D., & Kolind, T. (2019). “We are Seen as a Threat”: Police Stops of Young Ethnic Minorities in the Nordic Countries. Critical Criminology, 27(2), 347–361. https://doi. org/10.1007/s10612-­018-­9408-­9 Sollund, R. (2007). Tatt for en annen: En feltstudie av relasjonen mellom etniske minoriteter og politiet. [Mistaken for someone else: A field study of relations between ethnic minorities and the police]. Gyldendal Akademisk. Strand, V. B., & Hellum, A. (2022). Håndhevingslabyrinten – Om individuelle klagere i diskrimineringsvernets nye håndhevingsstruktur 2(39): 145–155. Nytt Norsk Tidsskrift, 2(39), 145–111. https://doi.org/10.18261/nnt.39.2.5 The Immigration Act. (15 May 2008). On the entry of foreign nationals into the kingdom of Norway and their stay in the realm. LOV-2008-05-15-35. Norway. Thomassen, G., & Kääriäinen, J. (2016). System satisfaction, contact satisfaction, and trust in the police: A study of Norway. European Journal of Policing Studies, 3(4), 437–448. TNS. (2008). Politiets nasjonale innbyggerundersøkelse [Police national citizens survey]. https://kudos.dfo.no/files/42a/42a7fb78069f6b2c6b9d4b1c2d1b 4a7231300e787d6d52f3ddeeb50a60af0d96/Politiets%20nasjonale%20 innbyggerunders%C3%B8kelse%20-­%202008.pdf Ugelvik, T. (2016). Low-Trust Policing in a High-Trust Society - The Norwegian Police Immigration Detention Centre and the Search for Public Sphere Legitimacy. Nordisk politiforskning, 3(2), 181–198. https://doi.org/10.18261/ issn.1894-­8693-­2016-­02-­08

Part III Political Debates, Limitation and Extensions of Police Powers

10 The Power of a Stooshie: Learning the Lessons of Stop and Search in Scotland for Implementing Organisational Change in Policing Megan O’Neill

10.1 Introduction According to the Oxford English Dictionary, ‘stooshie’ is a Scottish word for ‘A disturbance, uproar, row, fracas’ (OED online, 2022). This word was used (informally) on multiple occasions to describe the chain of events which led to dramatic and comprehensive reform of the police practice of stop and search in Scotland. This chapter will explore the stop and search stooshie in Scotland by considering how what was once a taken-for-granted aspect of policing became a highly politically charged topic involving multiple agencies, actors, numerous investigations, reports, 82 recommendations from scrutiny groups and eventually a change in legislation and a statutory code of practice. While there are indeed lessons from this story that could usefully inform practice elsewhere, it must also be acknowledged that what transpired in Scotland

M. O’Neill (*) School of Humanities, Social Sciences and Law, University of Dundee, Dundee, Scotland, UK e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 J. de Maillard et al. (eds.), The Politicization of Police Stops in Europe, Palgrave’s Critical Policing Studies, https://doi.org/10.1007/978-3-031-35125-9_10

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was not necessarily a complete success and, in retrospect, could have perhaps been achieved more effectively and with less internal strife. Changing the working practices of police organisations, as well as the internal culture, is a challenge that has faced police leaders and researchers for decades (see, e.g., Chan, 1997, Sklansky, 2007). It is not unusual for external pressure to be one of the motivating factors for the change efforts, which can disrupt years of accepted practice. The experiences of the newly created Police Scotland in relation to its policies and practice in stop and search is one such story of externally motivated and wide-­ reaching organisational change. While Police Scotland has found itself in the centre of a number of controversies since its creation in 2013 (Terpstra et al., 2019), the reform of stop and search is viewed by some as ultimately a success story. This is perhaps quite a surprising outcome considering that at the start of the stop and search stooshie, Police Scotland was regarded by many as having some of the worst practice in this area in the UK (Murray, 2014), if not further afield. This is based on the volume of searches being conducted as well as weak recording and governance practices (Murray & Harkin, 2017). How this fledgling organisation moved from a position of being the exemplar of what not to do (in relation to both stop and search practice as well as to reacting to external challenge) to one of being a role model is worth examining in detail. This chapter will explore the main events in the stop and search reform journey, including the role of the various organisations involved in how this public controversy unfolded, and the processes by which Police Scotland came to implement significant organisational change in this area of policy and practice. The role of senior police leaders will have a particular focus. It will consider some of the academic literature on organisational change and reflect on how the Police Scotland experience corresponds to this. It will then offer the main lessons to be gleaned for other policing organisations which may be considering wide-ranging reform or change of current systems and practices. These lessons stem from a reflection of the stop and search reform process through the lens of organisational justice. Although mindful that isolated case studies can have limitations (Schafer & Varano, 2017), stop and search reform is an issue faced by other policing organisations and therefore there is merit to a close consideration of the Scottish experience.

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10.2 Methods Material for this chapter is drawn from an analysis of published literature and media reports, the findings of an evaluation of a stop and search pilot in Fife Division, in-depth key informant interviews with two senior officers involved and reflections on my own experiences in this process. The interviews were conducted away from police premises and not audio recorded in light of the sensitivity of the subject matter and in order to protect participants’ anonymity. Therefore, the chapter is developed from multiple sources of information. The interviews provide insight and context to events and processes that are already in the public domain. There were very few strategic-level officers involved in Scotland’s stop and search reform, all known to each other and (for the most part) at the time of writing still employed by the organisation. The number of available and willing participants was very small.

10.3 Background In 2013, the existing eight police forces in Scotland were merged into a single service, Police Scotland. Sir Stephen House, formerly the chief constable of Strathclyde Police, was appointed as the first chief constable of the new police force. His style of leadership was one that prioritised a performance management structure, based on detailed quantitative analyses of various metrics, such as number of arrests, rates of crime, etc., to judge the effectiveness of the new service. This structure was one that had been used in his former police force, Strathclyde Police, and so this became known as the ‘Strathclydisation’ of Scotland’s policing (Fyfe, 2019). Along with other aspects of the merger, one key informant believed this performance management approach caused significant ill-feeling from officers, especially those from outside the Glasgow region and led to an overall drop in staff morale. Officers no longer were able to exercise their own discretion or have local policing autonomy but instead had to work to achieve specific targets, most of which encouraged an

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enforcement-orientated style of policing rather than an engagement-­ based one (Fyfe, 2019). One of the primary metrics on which operational managers were judged was the number of stop searches conducted in an area and the percentage of those which resulted in the discovery of an item of interest (Murray, 2014). This technique reflects one that had been used in the legacy Strathclyde Police, which covered the greater Glasgow area. From the mid-1990s onwards, Glasgow was regarded as one of the worst cities in Europe for violence in general and knife-related crime in particular (Murray & Harkin, 2017). Many techniques were implemented to address this, one of them being large volume stop and search. Most of these searches (about 70%) were conducted without statutory grounds, referred to within Police Scotland as ‘consensual’ searches. Officers were instructed to go to high-crime areas and search as many people as possible. The assumption (not grounded in research evidence) was that this would both discover illegal weapons and deter would-be offenders from carrying knives or other dangerous items in the future. In effect, stop and search could not fail as both discovery of an item and lack of discovery of an item were viewed as signs of success (Murray, 2014; Mulholland and Black, 2019). All the data that the officers had to record was the number of searches conducted and where the search took place. This practice resulted in a stop and search rate that was seven times higher than that of the London Metropolitan Police. In 2010, the rate of searches per 1000 people in Strathclyde was 168 (Murray, 2014). The other seven police forces in Scotland had their own approaches to stop and search and methods for recording them, some of which, according to one key informant, were more robust than others. The rates in the other forces in 2010 ranged from 40 per 1000 people in Lothian & Borders Police to 10 per 1000 people in Grampian Police (Murray, 2014). Regardless of previous practice, upon amalgamation divisional commanders in the other areas of Scotland were instructed to implement the Strathclyde model of stop and search, which meant high-volume of searches, most of which were non-­ statutory (HMICS, 2015). Stop and search in Scotland had been a neglected area of research and oversight for a number of years. Prior to 2014, the only analysis conducted of the practice was a governmental report by Reid Howie and

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Associates in 2001 (Reid Howie, 2001). This suggested that police officers in Scotland were disproportionately searching young people rather than those of ethnic minority backgrounds (which is the main area of debate for stop and search in England and Wales). It was the then-PhD student, Kath Murray, who used Freedom of Information requests in 2013 and 2014 to assess practice in the eight legacy forces in Scotland as well as existing practice in the new Police Scotland (Murray, 2014, 2015). Murray revealed the extent of the overall rates of search as well as the disproportionate focus on young people. She also demonstrated how most of the recorded searches, about 70%, were not based in statutory grounds (Murray, 2014). Thus, while Scotland was not only demonstrating an overall disproportionate use of stop and search in relation to age (i.e. children and young people) rather than on visible ethnic minorities, it was also conducting most of these searches without basis in statute. Murray’s studentship was part-funded by the Scottish Government and so she approached Police Scotland and relevant civil servants with the findings of her initial 2013 analyses (Murray, 2017). There was no discernible change to existing policy or practice as a result of these meetings. In January 2014, Murray made her findings public, and had informed Police Scotland of her intention to do so. It is at this point that the stop and search stooshie commenced. Rather than working with Murray to produce a collective approach to the media, Police Scotland adopted a defensive, and at times aggressive, position and implemented a media campaign to highlight (what they viewed as) the benefits of stop and search for public safety in advance of Murray’s publications. Murray has examined these events in a separate publication so they will not be repeated here (Murray, 2017). What is worth mentioning is that this was an important moment where Police Scotland could have chosen a less aggressive path which may have avoided much of the subsequent public scrutiny and criticism that they subsequently endured. Instead, Police Scotland asked Murray to delay the release of her findings by a few days and in the intervening period, launched what can be described as a pre-­ emptive strike. This included articles in the media and a public relations event which featured the father of a knife crime victim to promote the value of stop and search. At the same time, the Scottish Police Authority (SPA), the main oversight body for Police Scotland, had started its own

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investigation into stop and search practice in the service. Her Majesty’s Inspectorate of Constabulary for Scotland (HMICS) launched an investigation later in 2014. The Scottish and national media took up the story and published ongoing developments for the next two years. Murray and Harkin (2017) have explored the political reasons as to why a police practice which had been so neglected in the past by politicians, governance groups and the media was now regular headline news. They argue that a particular conflation of events led to a situation where a previously ‘cold’ climate for policing suddenly became ‘hot’. Prior to the creation of Police Scotland in 2013, there was very little oversight of or challenge to policing practice in Scotland. Murray and Harkin (2017) suggest this was based on a perception of Scottish policing being ‘consensual’ in contrast to that practiced in the London Metropolitan Police. This enabled an environment where stop and search was able to grow largely unchecked for two decades, due to a lack of oversight as well as a lack of statutory limits on the practice (unlike in England and Wales with the Police and Criminal Evidence Act 1984). It was only when the Scottish National Party established the merger of the existing eight police forces that policing was launched into a sharp political and media spotlight (Murray & Harkin, 2017). This coincided with Murray’s PhD research on stop and search as well as the SPA’s investigation into the practice, which eventually made 12 recommendations for change in Police Scotland.1 Scottish and national media sources were by this time primed for any stories which would criticise the new police force, having already questioned the choice of chief constable (Sir Stephen House from Strathclyde Police) and the suspected inability of the new SPA to effectively hold the organisation to account (Murray & Harkin, 2017). Thus, Police Scotland found itself in 2014 in a situation where a policing technique which they largely regarded as an effective method of crime reduction, and which rarely gained any external scrutiny, was now being openly and relentlessly challenged. As the controversy developed over the coming months the service became fixed in an ever-deepening crisis. Something needed to change, but what and to what extent?   Currently available at: https://polstops.eu/wp-content/uploads/2020/11/1.-SPA-Stop-and-­ Search-Report-published-30-May-2014.pdf. The motivation behind the review is not indicated. 1

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10.4 Incremental Change The initial reaction of Police Scotland to Murray and her research findings can be contextualised within organisational change literature. Organisations are considered to experience different types of change processes at different times, depending on the situation at hand. Police Scotland’s early approach to the stop and search stooshie, after their initial defensive reaction which they presented to the media, was to implement a process of incremental change. In an incremental change approach, an organisation adjusts its policies, practices and mechanisms around existing core values, rather than directly challenging them (Dunphy, 1988). In this model, change is usually slow and performed in such a way as to allow staff time to adjust to the new methods. In the case of Police Scotland, the organisation did not initially attempt to address the issue of whether (large volume) stop and search ‘worked’, nor to reduce the disproportionate focus on young people. There was also no consideration of ending the practice of non-statutory searches. Instead, it primarily sought to find ways to make the practice more accountable and acceptable to its critics. As far as the organisation was concerned, stop and search clearly ‘kept people safe’ and so the main focus was to tighten up recording processes and also to end the performance measures on stop and search for which it had been so heavily criticised (see, e.g., SPA, 2014). For example, in response to the report from the SPA in 2014, Police Scotland conducted an internal review of its own practice in the use of consensual searches. It presented its report which included 18 recommendations for change to the Cabinet Secretary for Justice in March 2015.2 None of these recommendations suggested an end to the tactic, but rather better methods of communicating about it to the public in general and to young people in particular, better systems of monitoring its use and a commitment to consider the findings from the Fife Pilot evaluation (to be discussed below). The reason Police Scotland was so reluctant to amend stop and search practice and to end the use of non-statutory searches for was that during  https://www.scotland.police.uk/spa-media/1qzdreym/stop-and-search-update-report-for-the-­ cabinet-­secretary-for-justice.pdf?view=Standard 2

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the 1990s when large volume stop and search was introduced in Strathclyde to address the high murder rate and use of knives, the tactic seemed to be successful. Murder rates and rates of ‘knife crime’ fell dramatically in the intervening years. As Murray’s (2014) report demonstrated, there was heavy use of non-statutory searches to achieve this. As one of the key informants indicated, in the minds of senior leadership (many of whom came from the legacy Strathclyde force) and other officers in the new Police Scotland, stop and search clearly had a direct link to a reduction in violence based on their lived experience. What was not considered in this assessment was the corresponding drop in the use of crack cocaine and the fall in overall crime being seen in many other Western countries (Tonry, 2014) which may also have been contributing factors, as well as other public sector initiatives in Glasgow happening at the same time to address the problem (for a fuller analysis of the trends, see McVie et al., 2018). The incremental change approach to stop and search can be best illustrated by ‘The Fife Division (Police Scotland) Stop and Search Pilot’. The pilot was to be a test-run of a revised approach to stop and search, designed to improve: (1) the data on which stop and search was based, (2) police accountability and (3) public confidence in policing, especially in relation to stop and search (O’Neill & Aston, 2018). The pilot was launched mid-2014 and introduced several changes to stop and search practice in the Fife Division of Police Scotland in order to achieve these aims. These included an enhanced database which recorded the names and addresses of those who were searched (this had not been standard practice in some areas previously), checks on the database entries to ensure they were done correctly, checks on the corresponding records in officers’ notebooks of searches, consultation with partner organisations, telephone surveys of people who had been stopped recently, a receipt for those stopped and the introduction of an aide-mémoire to officers which detailed legal grounds for stops. The pilot was accompanied by an e-­learning module (online training) which all officers in Fife were to complete as well as detailed staff briefings (O’Neill & Aston, 2018). The independent evaluation of the pilot (O’Neill et al., 2015) found that many officers had not noticed a significant change to their practice, could not remember the online training and, in contrast to practice in the

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rest of Scotland at the time (and the comparator area used in the evaluation), initially conducted more stop searches than they had recorded prior to the pilot.3 While some good practice was introduced (especially in relation to regularly and accurately recording stops in the database) the fundamental issues of disproportionate searches of young people and the over-reliance on non-statutory searches remained. It emerged that neither operational officers nor senior managers had any intention to change their core practice or values. In fact, one senior member of the Fife Division reported to the evaluation’s researcher that the idea was to keep stop and search practice as much as ‘business as usual’ as possible (O’Neill et al., 2015: 77) to avoid backlash from officers. In addition, the intended outcomes of the pilot were vague with no indication of how success was to be measured. The pilot itself was launched before the independent evaluation had begun, which made it impossible to establish a baseline measurement. These factors compounded the difficulty in achieving any meaningful change to practice and reveal management’s intentions to retain existing core values (Schafer & Varano, 2017). In total, the evaluation of the Fife Pilot made 19 recommendations for change in Police Scotland (O’Neill et al., 2015).

10.5 Radical Change in Crisis In contrast to incremental change in organisations, change can also be brought about in times of crisis when external forces compel an organisation to implement radical adjustments to policy and practice. In these cases, the organisation and its external environment are no longer in harmony and there is not room to allow for longer-term incremental change. Radical change alters the worldview of the organisation suddenly and comprehensively (Dunphy, 1988). However, there is a danger with the radical approach in that it can be done at such a speed as to leave staff behind and will thus not alter their cultural orientations in line with the organisation’s new core values (Schein, 1990). I will argue that this was the case for Police Scotland when reforming stop and search.  This was perhaps an initial Hawthorne effect in the pilot.

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Police Scotland entered a period of radical change in 2015. Several key events happened in the period January—March 2015 to create a context of crisis, with February being a particularly explosive month. These external pressures eventually necessitated a rapid alteration to what had been Police Scotland’s stance to the stop and search stooshie, which saw it drop its hitherto defensive posture. One of the key events related to the use of non-statutory searches of children. In June 2014, Assistant Chief Constable Wayne Mawson had stated to The Scottish Parliament Justice Committee’s Sub-Committee on Policing that the practice of ‘consensual’ searches of children under the age of 12 would end with immediate effect. However, as one of the key informants mentioned, internal systems, policies and communication mechanisms were not yet in place to support such a significant alternation to existing practice. This includes the stop and search database which was still undergoing redevelopment to make it more robust. In July 2014, an investigative journalist with the BBC applied through a Freedom of Information Request to access Police Scotland’s stop and search records. Police Scotland eventually released the data in January 2015, but with many caveats as to its accuracy. The subsequent BBC report indicates that 356 children under 12 were subjected to non-­ statutory searches after ACC Mawson had promised that they would end (Ellison, 2015). One of the key informants indicated that this number of 356 searches was not accurate due to the existing flaws in the database and the still inconsistent recording processes of the time. A more realistic number would be 18. The rest of the highlighted searches were not of children under 12 and could be explained by things such as input errors or duplication of records. Regardless, the damage was done to Police Scotland’s public image. ACC Mawson attempted to explain the database issues to the Justice Committee’s Sub-Committee on Policing later in February 2015 and revealed that over 20,000 stop and search records were corrupted because someone ‘pushed the wrong button’. Due to human error and a system still in the process of redevelopment, aspects of these stop and search records were accidently deleted and had to be re-­ entered manually. What subsequently became known as ‘Buttongate’ did not help matters (BBC, 2015) and media and political scrutiny intensified.

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While there were other developments in early 2015 that added to this picture, I will focus on two reports from external organisations which added pressure on Police Scotland. In early February 2015, the Scottish Human Rights Commission (SHRC) called for an end to non-statutory searches. In their press release, they stated that searches conducted without statutory grounds were a violation of the right to privacy in the Human Rights Act and in Article 8 of the European Convention on Human Rights (SHRC, 2015). At the end of March 2015, HMICS published the results of its investigation into stop and search. There were 23 recommendations for change, including the establishment of a Code of Practice, the removal of targets for searches (which rank-and-file officers felt were still in place despite public assurances from senior officers to the contrary) and improved recording and public reporting of stop and search data. The HMICS report also recommended a move towards statutory stop and search only and said it had no confidence in the existing stop and search data. It argued that these data should not be used to make decisions on policy and practice within Police Scotland (HMICS, 2015). A final key development at this time was the creation of the Independent Advisory Group (IAG) by the Scottish Parliament, to be chaired by the human rights lawyer and solicitor-advocate, John Scott QC. Other members of the group included representatives of HMICs, Police Scotland, the SPA, the Crown Office and academic experts. Two of the main aims of the IAG was to decide the future of non-statutory search and to develop a code of practice. The IAG reported its findings in August 2015 with ten recommendations for change, including a complete end to non-statutory searches and a draft Code of Practice (Scott, 2015). The heavy and relentless scrutiny from Parliament (as evidenced by the repeated appearances of senior police staff in front of the Scottish Parliament Justice Policing Sub-Committee and the creation of the IAG), independent scrutiny organisations (such as the SPA, HMICS and the SHRC) and the media meant that Police Scotland was constantly in a defensive position. Due to the ‘hot’ political climate at the time (Murray & Harkin, 2017) there were few public voices advocating for the continued use of status quo stop and search, other than those of Police Scotland itself. One researcher who was publicly supportive of non-statutory searches later had his integrity called into question (Hutcheon, 2015).

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According to one of the key informants, this continued pressure had the effect of undermining efforts going on internally to address the known issues. For example, in July 2014 in response to the scrutiny from the SPA and before the crisis month of February 2015, Police Scotland had established a National Stop Search Unit (NSSU). The role of the NSSU was to audit the stop and search records, work to improve the database, advise officers on how to improve practice and generally implement the reform process. Police Scotland had also changed their policies to record names and addresses in the stop and search database in May 2014. Other plans, identified by one of the key informants, were already in place to take measures voluntarily which eventually became mandated (such as moving towards a position of statutory search only and re-training officers on stop and search). However, with an organisation as large and as new as Police Scotland, effectively and quickly communicating the need for change and the methods to be used was difficult, as one of the key informants described. As a result, the planned changes had not been implemented before the crisis period commenced. After the multiple errors and misjudgements during the incremental change approach were revealed publicly in the media (BBC, 2015) and several highly critical evaluation reports were published (O’Neill et al., 2015; HMICS, 2015; SHRC, 2015; Scott, 2015; SPA, 2014), Police Scotland (and the Scottish Government) publicly withdrew their defensive posture and in September 2015 openly accepted the need to end non-statutory searches and to implement a Code of Practice for stop and search. Both of these measures were subsequently embedded in the Criminal Justice (Scotland) Act 2016. This radical change of position, to drop a technique held by many officers as core to their practice, while welcomed by many outside of the organisation, was done without consultation of the staff involved. Senior officers within the organisation, according to one key informant, may argue that the intense political and media scrutiny of the crisis period did not afford them the luxury of consulting staff prior to taking this decision. However, the repercussions of this swift change and lack of meaningful engagement with staff would compound the low staff morale which was still in evidence after the creation of Police Scotland itself, as was reflected by one of the key informants. As will be discussed more fully below, these decisions reflect a

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position (albeit unintended) of organisational injustice towards officers (Cohen-Charash & Spector, 2001).

10.6 Back to Incremental Change Subsequent to this agreement to radically alter existing practice in the crisis period of 2015, Police Scotland recommenced an incremental approach to developing and embedding the new stop and search procedures, which included re-training all officers up to and including the rank of Inspector in code-compliant methods, regular consultation with multiple external partners and oversight agencies (including academic researchers who were now welcomed as advisors) and developing a complex and comprehensive internal governance structure to monitor the progress of reform at multiple levels. It was only in late 2018 that these structures were re-examined with a view to reducing and streamlining systems. Up until this point, external scrutiny from groups such as the IAG, the SPA and HMICS continued, meaning that while stop and search did not appear as prominent a topic in the media, it remained an area of focused and resource-heavy internal activity in order to meet the requirements of these groups and to resolve the 82 recommendations4 for change from the various evaluation reports. This slower approach to internal change was enabled by the IAG, which indicated that there would be a ‘light touch’ review of policy and practice at 6 months5 and a fuller review at 12 months6 after the implementation of the Code of Practice, which commenced in May 2017. This meant that while Police Scotland, and in particular the NSSU, still had a heavy daily workload with stop and search, change was not expected to be as immediate as it had been in 2015. This enabled the NSSU, in  The totals are as follows, SPA: 12 recommendations, HMICS: 23 recommendations, Police Scotland: 18 recommendations, O’Neill et al. (Fife Pilot Evaluation): 19 recommendations, IAG: 10 recommendations. 5  https://www.gov.scot/binaries/content/documents/govscot/publications/research-and-­ analysis/2018/02/six-month-review-code-practice-stop-search-scotland/documents/00531484-­ pdf/00531484-pdf/govscot%3Adocument/00531484.pdf 6  https://www.gov.scot/publications/twelve-month-review-code-practice-stop-search-scotland-­ independent-­advisory-group-stop-search/documents/ 4

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c­ onsultation with external partners (including academic researchers), to develop and test a revised training package for stop and search as well as commence a detailed programme of internal communication and consultation with operational managers and officers. Police Scotland published three detailed ‘Improvement Plans’ between 2015 and 2017 which tracked progress to date with stop and search reform and resolution of the 82 recommendations.7 The internal systems and governance structures were extensive, and perhaps to some extent excessive, but clearly evidenced the seriousness with which the senior and central members of the organisation now regarded the reform process. Police Scotland still maintained that stop and search is an important policing tactic, but now, at least officially, acknowledged that it needed to be based on reasonable grounds and in compliance with human rights, especially for young people (Police Scotland, 2015). Part of my role as an academic advisor during this period involved commenting on the plans for the revised training programme and observing the training in action. The training on the then new Code of Practice engaged with more emotive and reflective topics such as the effect on young people when they are searched by officers, the role of unconscious bias in selecting who to search and the process of events which led to the removal of non-statutory search as a legitimate policing tactic. At the point in the training when the background events are discussed, the officers were encouraged to reflect how they experienced these events and changes. While this opportunity to express their views and air any grievances they may have was to be welcomed, it was not sufficient to allow officers to feel they had a ‘voice’ in the reform process, which would have been in keeping with principles of organisational justice (Aston et  al., 2021; Cohen-Charash & Spector, 2001). In short, organisational justice considers the extent to which members of an organisation perceive that decision-making, distribution of resources and processes of interaction are fair. An element of this for policing is that officers feel they have a voice when decisions or changes are being made or at least that these changes are appropriately communicated to them (Aston et al., 2021).  h t t p s : / / w w w. s c o t l a n d . p o l i c e . u k / a b o u t - u s / h o w - w e - d o - i t / s t o p - a n d - s e a r c h / improving-stop-and-search/ 7

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By the time officers attended the stop and search code of practice training sessions, the key events were now in the past, the change enacted, and their views were coming too late to have any effect on these decisions. The adoption of a radical change approach during the crisis period prevented the reform of stop and search from happening in an organisationally just way, in other words, in a way that took their concerns and values into account when deciding on the future shape of this key technique of policing (Aston et al., 2021). According to one of the key informants, it was accepted among senior and central officers that while they could understand the need to end non-statutory searches and reform the practice overall, this message would be much more difficult to sell to a workforce who feel they were ignored and scapegoated from the start. The open discussion in the training was an attempt to address this imbalance, but it was ultimately a case of too little, too late. The risk with the previous radical change approach in which there was little communication or discussion with the officers who would ultimately enact the new practice, was that those officers who felt that their organisation was unjust were more likely to engage in inappropriate behaviour or misconduct (Wolfe & Piquero, 2011; Cohen-Charash & Spector, 2001). Police Scotland in effect took this risk for the sake of meeting the demands of the external organisations exerting pressure on them to act quickly. The anger of the officers in the training sessions I observed about the way change took place was apparent.

10.7 Discussion: Implications for Organisational Change in Policing The story of the Police Scotland stop and search stooshie is an important one for many policing organisations beyond Scotland’s borders, for both its many successes in this process but also for the lessons from its public as well as its internal failures. Police Scotland’s initial defensive and entrenched position (while perhaps not surprising to those who practice or study policing), enacted as it was in the crucible of an intense political climate, meant that the organisation quickly went from one public

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disaster to another. When it did eventually adopt a process of incremental change, the pace was not quick enough or public enough to stop the ongoing external scrutiny which was only gaining momentum. With all other avenues seemingly closed off, Police Scotland shifted to a position of radical change, which, while meeting the demands of political and media criticism, neglected to account for the concerns of the officers who would be expected to fundamentally alter long-standing practice to accommodate it. This neglect of a core component of organisational justice has meant that the organisation, when shifting back to a process of incremental change, now had the additional challenge of convincing an angry and sceptical workforce that the change, which by that point was now a foregone conclusion, was important and necessary. Overall, the pressure from external bodies on Police Scotland to change its practice, the 82 recommendations which resulted from various investigations and the legislation which now guides this area of work mean that stop and search in Scotland is markedly different from what it was before. For example, there is now a single database in use across the country with mechanisms built in to prevent data entry error. Non-statutory searches are now unlawful, for all age groups. Police Scotland publishes its stop and search statistics very quarter on its website. A Code of Practice has been enshrined in legislation which guides practice for all officers. And the overall rate of recorded searches has dropped to about a tenth of what it was at its peak. These achievements are all the more remarkable for being realised despite not having the cultural support of the officers required to implement them (Aston et al., 2021). This outcome is not unique in processes of implementing change in policing, although the public stage on which it played out is less common. Schafer and Varano (2017) in their study of the FBI National Academy argue that successful change efforts, including in policing, need to have communication, leadership and clarity. Those most affected by change need to know why it is happening, what the implications will be and need to be involved in the process. Both informants I spoke to for this research indicated that internal communication was indeed an issue for Police Scotland in the initial stages of the stop and search reform process, which compounded the difficulties they faced. Clarity was also impeded by the rapidly changing landscape, in terms of both the nature

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of external pressures and internal decision-making. In relation to Schafer and Varano’s (2017) point about leadership in times of change, we can turn to Cockcroft (2017) who examines recent calls for ‘transformational’ leadership in policing in place of ‘transactional’ leadership, especially when cultural change is needed. Cockcroft (2017) problematises this binary conceptualisation of the terms, as well as understandings of ‘police culture’, and proposes instead considering that in policing different leadership styles are needed at different times. Cockcroft (2017) argues that while police forces could perhaps benefit from the more engaged and consultative approach seen in transformative leadership, especially during times of cultural change, policing is a diverse occupation, and some situations function better through a transactional leadership approach. I would argue that the stop and search reform process in Scotland is an example of this where at times the transactional leadership approach was necessary (such as when instructing officers in the new methods for stop and search) but at others, especially at the beginning, a transformative approach would have assisted in bringing officers to a position where they were willing to accept those new methods. A final important element to consider is the effectiveness of top-down approaches to change. Campeau (2017) uses the concept of ‘cultural inertia’ to demonstrate how, even when faced with multiple and dramatic changes to their wider environment, police organisations tend to broadly remain the same or to change very slowly. She argues that older officers use a delicate balance of old and new cultural ‘scripts’ and preserve certain institutional ‘myths’. Newer officers, Campeau (2017) highlights, initially will adopt these to get ahead. However, over time the old scripts will fade as their position in relation to the newer scripts and the changing demographics of the newer officers is precarious. Policing organisations seeking to implement the types of change to practice and policy that was witnessed in Scotland in relation to stop and search should perhaps consider this and the extent to which change on this scale can ever be implemented quickly. Police Scotland presents a good example of this ‘cultural inertia’. While it is true that the official policies and procedures for stop and search did change at a rapid pace, and that the rates of searches fell, there is reason to be concerned about the extent to which officers themselves embraced the new methods and the fore-fronting of human rights

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on which they are based. Not long after the stop and search stooshie had dropped from the media spotlight in 2018, a new controversy took its place. Police Scotland had purchased and piloted a number of ‘cyber kiosks’ in 2016 without any external consultation or consideration for their potential infringement of civil liberties. Cyber kiosks are computer terminals which can be used to scan a data device (such as a phone) for digital evidence. The intention was to speed up the triage process so that, for example, if a victim’s phone has no usable digital evidence on it, it can be returned in a matter of days (rather than months, as was the existing process). Again, there was a media backlash and an investigation from the Scottish Parliament (2019), which eventually led to the formation of independent advisory groups, extensive legal advice and rounds of consultation with the public. All of this could have been avoided, or made easier, if the lessons from the stop and search stooshie had been heeded more widely in the organisation. In particular, the lessons from stop and search in terms of the necessity to consult externally on a practice which has implications for civil liberties and to set up effective and comprehensive oversight mechanisms. However, more recent events give cause for hope. When the COVID-19 pandemic hit in early 2020 and new laws were rapidly enacted to enforce quarantine procedures, Police Scotland established a number of mechanisms to ensure that it not only enforced the new legislation fairly, but also that its methods were open, transparent and accountable. For example, summary bulletins and raw data tables of enforcement activity were published regularly on a dedicated website.8 Police Scotland established an advisory group9 to guide its use and development of the data related to its enforcement activity, which included members of civil liberties organisations, academic researchers, members of the Scottish Police Authority and others.10 The Scottish Government for its part established another Independent Advisory Group to monitor the enforcements of  h t t p s : / / w w w. s c o t l a n d . p o l i c e . u k / a b o u t - u s / c ov i d - 1 9 - p o l i c e - s c o t l a n d - re s p o n s e / enforcement-and-response-data/ 9   This was called the ‘Operation Talla Information, Collation, Assurance and Liaison (OpTICAL) group’. 10  https://archive2021.parliament.scot/S5_JusticeSubCommitteeOnPolicing/Inquiries/Police_ Scotland_submission(3).pdf 8

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the legislation, which reported to it frequently over the course of the pandemic. To my knowledge, no other police service in the UK had this level of governance, consultation and publicly accessible data on its coronavirus legislation enforcement activity. Thus, we can see the influence of the experiences from stop and search and from the cyber kiosk groups here in terms of external accountability and oversights mechanisms. However, once again the speed of change needed to respond to the challenges of the pandemic did not allow for detailed and constructive consultation with officers, which would have been in keeping with the tenants of organisational justice. In summary, while the Scottish stop and search stooshie is a complex story, it does offer a simple overall message: change in policing is difficult, but not impossible. It takes time, good two-way communication, a clear motivation and an achievable outcome. If change is enacted rapidly in a way that does not allow officers to feel they have had a voice in the process, leaders will be creating for themselves a disenfranchised workforce, which in the long term will make change more difficult to fully embed. The challenge for the wider community in which policing operates is to give our policing organisations the opportunity to embrace incremental change, and thus allow them the space they need to build a workforce which understands and accepts the adjustments to their practice and does not undermine what they value as policing practitioners. The ‘hot’ political climate in which Police Scotland was created and in which the stop and search stooshie played out (Murray & Harkin, 2017) brought with it a sense of urgency that was counterproductive to achieving the extent of organisational change that was needed as it did not facilitate an approach based in organisational justice. Acknowledgements  I would like to thank the key informants who gave me many hours of their time to discuss the reform process in Scotland in such detail. I would also like to thank the editors of this collection and the participants of the symposium for their insightful and detailed comments and suggestions.

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References Aston, E., Murray, K., & O’Neill, M. (2021). Achieving cultural change through organisational justice: The case of stop and search in Scotland. Criminology and Criminal Justice, 21(1), 40–56. BBC News. (2015, February 19) Police lost 20,000 records after wrong button pressed. BBC News. http://www.bbc.co.uk/news/uk-­scotland-­31525040 Campeau, H. (2017). Institutional myths and generational boundaries: cultural inertia in the police organisation. Policing and Society, 29(1), pp. 69–84 Chan, J. (1997). Changing police culture: Policing in a multicultural society. Cambridge University Press. Cockcroft, T. (2017). Police culture: Histories, Orthodoxies, and New Horizons. Policing, 11(3), pp. 229–235. Cohen-Charash, Y., & Spector, P. (2001). The role of justice in organizations: A meta-analysis. Organizational Behavior and Human Decision Processes, 86(2), 278–321. Dunphy, D. C. (1988). ‘Transformational and coercive strategies for planned organizational change: Beyond the O.D.  Model. Organization Studies 9(3), 317–334. Ellison, M. (2015, 4 February). Police search hundreds of children despite commitment. BBC News. http://www.bbc.co.uk/news/uk-­scotland-­31022269 Fyfe, N. R. (2019). The challenges of change: Exploring the dynamics of police reform in Scotland. International Journal of Police Science & Management, 21(4), 196–205. https://doi.org/10.1177/1461355719889463 Her Majesty’s Inspectorate of Constabulary Scotland (HMICS). (2015). Audit and assurance review of stop and search – phase 1. Available at https://www. hmics.scot/sites/default/files/publications/HMICS%20-­%20Audit%20 and%20Assurance%20Review%20of%20Stop%20and%20Search%20-­% 20Phase%201_0.pdf Hutcheon, P. (2015, April 26). Police helped academic over pro-stop and search speech. 2015. Available at https://www.heraldscotland.com/news/13211234. police-­helped-­academic-­pro-­stop-­search-­speech/ McVie, S., Bates, E., & Pillinger, R. (2018) Changing patterns of violence in Glasgow and London: Is there evidence of Scottish exceptionalism? LSE blog. https://blogs.lse.ac.uk/politicsandpolicy/patterns-­o f-­v iolence-­g lasgow-­ london/. Mulholland and Black. (2019, June 13). Twelve month review of the code of practice for stop and search in Scotland. Scottish Government. ISBN:

10  The Power of a Stooshie: Learning the Lessons of Stop… 

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9781787819207. Accessible from https://www.gov.scot/publications/twelve-­ month-­review-­code-­practice-­stop-­search-­scotland-­independent-­advisory-­ group-­stop-­search/documents/ Murray, K. (2014) Stop and search in Scotland: An evaluation of police practice. SCCJR Report 01/2014 http://www.sccjr.ac.uk/wp-­content/ uploads/2014/01/Stop_and_Search_in_Scotland1.pdf Murray, K. (2015). Stop and search in Scotland: A post-reform evaluation. Scottish Centre for Crime and Justice Research. https://www.sccjr.ac.uk/wp-­content/ uploads/2015/06/Stop-­a nd-­s earch-­i n-­S cotland.-­A -­p ost-­r eform-­ overview-­22ndJune2015.pdf Murray, K. (2017). ‘Why have we funded this research?’: On politics, research and newsmaking criminology. Criminology & Criminal Justice, 17(5), 507–525. https://doi.org/10.1177/1748895816685766 Murray, K., & Harkin, D. (2017). Policing in cool and hot climates: Legitimacy, power and the rise and fall of mass stop and search in Scotland. British Journal of Criminology, 57(4), 885–905. O’Neill, M., & Aston, L. (2018). Changing Stop and Search in Scotland. European Journal of Policing Studies, 5(4), 129–152. O’Neill, M., Aston, L., & Krause, A. (2015). The fife division (police Scotland) stop and search pilot evaluation findings and recommendations. The Scottish Institute for Policing Research. Available at https://www.sipr.ac.uk/wp-­ content/uploads/2021/10/The-­Fife-­Division-­Police-­Scotland-­Stop-­and-­ Search-­Pilot-­Evaluation-­Findings-­and-­Recommendations.pdf Oxford English Dictionary. (2022). ‘stushie’ definition. Accessed June 2, 2022, from https://www.oed.com/view/Entry/192277?redirectedFrom=stushie Police Scotland. (2015, December). Stop and search improvement progress report for the cabinet secretary for justice. https://www.scotland.police.uk/spa-­media/ aiboitf5/stop-­and-­search-­improvement-­progress-­report-­for-­the-­cabinet-­ secretary-­for-­justice.pdf?view=Standard Reid Howie Associates Ltd. (2001). Police stop and search among White and Minority Ethnic Young People in Scotland. Scottish Executive Central Research Unit, 2002. Accessible from https://www.webarchive.org.uk/wayback/ archive/3000/https://www.gov.scot/Resource/Doc/156644/0042088.pdf Schafer, J.  A., & Varano, S.  P. (2017). Change in police organizations: Perceptions, experiences, and the failure to launch. Journal of Contemporary Criminal Justice, 33(4), 392–410. Schein, E. H. (1990). Organizational Culture. American Psychologist 45(2), 109–19.

244 

M. O’Neill

Scott, J. (2015). The report of the advisory group on stop and search. AGSS. https:// www.webarchive.org.uk/wayback/archive/3000/; https://www.gov.scot/ Resource/0048/00484527.pdf Scottish Human Rights Commission (SHRC). (2015, February 2). Commission calls for end to non-statutory stop and search. https://www.scottishhumanrights.com/news/commission-­c alls-­f or-­e nd-­t o-­n on-­s tatutory-­s top-­a nd-­ search/ Scottish Parliament. (2019). Report on Police Scotland’s proposal to introduce the use of digital evidence triage systems. Published 8 April 2019, SP Paper 512, 1st Report, 2019 (Session 5). Accessible from https://sp-­bpr-­en-­prod-­cdnep.azureedge.net/published/JSP/2019/4/8/Report-­on-­Police-­Scotland-­s-­proposal-­ to-­i ntroduce-­t he-­u se-­o f-­d igital-­d evice-­t riage-­s ystems%2D%2Dcyber-­ kiosks-­/JSPS052019R01.pdf Scottish Police Authority. (2014). Scrutiny review  – Police Scotland’s stop and search policy and practice, May 2014. Accessible from https://polstops.eu/wp-­ content/uploads/2020/11/1.-­SPA-­Stop-­and-­Search-­Report-­published-­30-­ May-­2014.pdf Sklansky, D. (2007). Seeing blue: Police reform, occupational culture and cognitive burn-in. In M. O’Neill, M. Marks, & A.-M. Singh (Eds.), Police occupational culture: New debates and directions. Elsevier Science. Terpstra, J., Fyfe, N. R., & Salet, R. (2019). The abstract police: A conceptual exploration of unintended changes of police organisations. The Police Journal, 92(4), 339–359. Tonry, M. (2014). Why crime rates are falling throughout the Western world. Crime and Justice, 43, 1–63. Wolfe, S. E., & Piquero, A. R. (2011). Organizational justice and police misconduct. Criminal Justice and Behavior, 38(4), 332–353.

11 Contextualising Police Stops in Public Debates: Policy Turning-Points in Germany Hartmut Aden, Alexander Bosch, Jan Fährmann, and Roman Thurn

11.1 Introduction: Stop and Search in Germany and Policy Turning-Points As in other countries, police stops with the aim of identifying an individual are a classical and frequently used police measure in Germany. Identity checks are often the first step in a series of police measures, which The authors would like to thank Mike Rowe, the editors of this book and the other participants of the COST Action on Police Stops (CA 17102) who provided useful comments on previous versions of this chapter. The chapter is partly based on results from the MEDIAN research project on the development of mobile technology for police stops, funded by the German government (Bundesministerium für Bildung und Forschung, BMBF, Förder-Kennzeichen 13 N14799, 2018–2022). Thanks also to Christoph Peterek and Mario Petoshati for their support.

H. Aden (*) • A. Bosch • J. Fährmann • R. Thurn Hochschule für Wirtschaft und Recht Berlin, Berlin Institute for Safety and Security Research (FÖPS Berlin), Berlin, Germany e-mail: [email protected]; [email protected]; [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 J. de Maillard et al. (eds.), The Politicization of Police Stops in Europe, Palgrave’s Critical Policing Studies, https://doi.org/10.1007/978-3-031-35125-9_11

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may involve inspecting identification documents (ID cards, passports or similar), questioning the stopped individuals, searches in police databases for information regarding these individuals, as well as searches of clothes and bags. If the police officers fail to determine an individual’s identity, they may take him or her to the police station for further identification measures. For the understanding of the German policies related to police stops, it is necessary to look at the semi-(de-)centralised structure of the German police system, (re-)established by the allied forces after World War II. This de-centralisation aimed at preventing police agencies from becoming too powerful. In Germany, the 16 states (Länder) therefore have their own police forces and the power to legislate in the area of preventive policing (Gefahrenabwehr)  (Frevel & Groß, 2016). Gefahrenabwehr covers all police measures in situations in which a criminal or administrative offence has not (yet) been committed, thus typically all kinds of police stops that are either suspicion-less or carried out in order to prevent a danger that is not linked to a criminal or administrative offence. Therefore, policy-­ making with respect to police stops is primarily a task of the 16 states. The federal state (Bund) has its own police forces: the Federal Police (Bundespolizei) and the Federal Criminal Investigation Office (Bundeskriminalamt). The Bund has the power to establish a uniform criminal code and criminal procedure for the whole country (Articles 70(1) and 74(1) no. 1 of the German Constitution (Grundgesetz)), including criminal procedural rules for police stops in cases in which someone is suspected to have committed a criminal or administrative offence. According to German constitutional law, any restriction of fundamental rights requires a specific legal base and has to be proportionate, similar to the requirements in the European Convention of Human Rights. In the German fundamental rights system, any police stop is an interference with the fundamental right to “informational self-determination”. This is a specific variation of privacy, which the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) derived from human dignity and the general freedom of action in a 1983 landmark judgement (BVerfGE 65, 1), starting from the idea that everyone should have the right to decide autonomously what happens to his or her personal data (cf. Aden, 2022, 122 f.). Later, this right to “informational self-determination” also served

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as a source of inspiration for the establishment of a fundamental right to data protection guaranteed by Article 8 of the EU Charter of Fundamental Rights, which is binding since 2009. According to the basic idea underlying this fundamental right, public authorities restrict individuals’ right to privacy when they collect personal information about them. During a police stop, information collected on individuals usually includes the name, address, date of birth, the fact that this individual has been at the place where the stop has happened, and potentially more information about the individual’s behaviour. Police stops can also restrict other fundamental rights. As individuals have the legal duty to stay until the end of the follow-up measures of a police stop, the right to personal freedom will usually also be restricted (Article 2 (2) Grundgesetz). Depending upon the follow-up measures, more fundamental rights may be affected. Biased selection criteria for police stops can also violate the fundamental right to non-discrimination (Articles 3 (1) and (3) Grundgesetz). As restrictions to fundamental rights need a legal base, political conflicts about police stops have often taken place in the context of law-making. In this chapter, we use policy turning-points as an umbrella term, covering specific incidents or public debates as well as major legislative acts that have significantly influenced the practice of police stops. Thus, a policy turning-point is more than an incident that influences the political agenda: it necessarily has a significant impact on the practice of police stops. A major policy turning-point that we identify goes back to the 1970s. At that time, the state and federal ministries of the interior drafted a model police act that included additional powers for police stops. This act was both a response to students’ riots in the late 1960s and to terrorist acts committed by the Red Army Faction (RAF). Another turning point was the introduction of the “Schleierfahndung” in the 1990s, which established additional options for police stops without suspicion for the German Federal Police (at that time the German Federal Border Guard) and later for most Länder police forces in reaction to the abolition of EU-­ internal border controls between the participating member states within the Schengen agreements. These turning points significantly increased the discretion that officers have when they select people for stops (cf. Aden et al., 2022, 118).

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More recently, public debates on police stops were often related to the discussion on stricter border controls, starting in 2015 when relatively high numbers of refugees, especially from Syria, entered the European Union and Germany. During the first phase of the COVID-19 pandemic, the police stopped people more frequently in order to monitor compliance with the Infection Protection Act. This will probably remain a provisional practice. The most recent development of the public debate in Germany can be related to the Black Lives Matter (BLM) movement that strongly influenced public debates on police stops beyond the US, including Germany, after George Floyd was killed by a police officer in Minneapolis in May 2020. Academic expertise regarding police stops is predominantly characterised by legal scholarship. The authority of police to stop individuals without specific suspicion has attracted the attention of legal scholars (cf. Waechter, 1999; Cremer, 2013; Pichl, 2014; Assall & Gericke, 2016; Tomerius, 2017; Aden, 2017) including several doctoral students (e.g., Krane, 2003; Keller, 2018). Trans-disciplinary legal and social science research has looked at the impact of legal bases for suspicion-less stops on the practice of police stops (Bosch et al., 2021; Aden et al., 2022). From an empirical perspective, various researchers focused on the spatial aspect of police stops. They analysed how the perception of certain, especially urban, areas has an impact on both the number and the quality of police stops. They claim that “broken windows” and “zero tolerance” policing had a focus on low-income areas and places where migrant communities, youths, drug users or sex workers resided (Belina & Wehrheim, 2011; Hunold, 2011; Ullrich & Tullney, 2012; Hunold et  al., 2016; Kern, 2016; Belina, 2017; de Maillard et al. 2016; Künkel, 2020). The police were more likely to define such spaces as dangerous and to pursue deviant behaviour more intensively with suspicion-less stops. Where officers prioritise a good relationship with the local communities, they may, by contrast, use suspicion-less stops less frequently (de Maillard et  al. 2016 in comparison with France). Another stream of literature on police stops stems from critical policing scholars analysing racial or ethnic profiling practices (e.g., Thompson, 2018; Burkhardt & Barskanmaz, 2019). Martin Herrnkind has shown that racial profiling can be traced back decades in police strategies in

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Germany. Analysing current police strategies, he identified eight different types of profiling. Besides traffic stops or stop and search, profiling can also occur in the context of raids, massive data mining operations, offender-based prediction assessments, group-related special registration or stereotyped investigation strategies (Herrnkind, 2014).

11.2 Public Debates on Police Stops and Policy Turning-Points in Germany Since the 1970s, police stops have become an issue of public debate in Germany. Police officers depend on receiving information from the public, observing situations for a longer time or coming across suspicious individuals during controls and finding evidence regarding dangers or crimes in conversations, based on talks, searches or searches in databases (Aden et al., 2022). Empirical research suggests that police have long-established practices in place to assess situations or individuals they deem suspicious. In doing so, they may (for example) correlate suspicion with factors like age, location, appearance, vehicle or specific behaviour (e.g., Feest & Blankenburg, 1972, 35 ff.; Hunold et al., 2016; Aden et al., 2022). Therefore, it can be advantageous from the point of view of police officers to have the widest possible scope for decision-making. Legal authority attributed to police officers by German police law for police stops at dangerous places allows this. If they do not need to have specific reasons related to behaviour to carry out a stop, officers can use their knowledge gained from experience or suspicions may arise randomly during checks (see Kölbel 2016, § 163b paragraph 18 and Aden et al., 2022 for a critique). However, a wide scope for decision-making carries the risk that prejudice or even racism may enter into the selection decision (e.g., Burkhardt & Barskanmaz, 2019; Phillips & Bowling, 2012, 381 ff.). Thus, critical debates on police stops are closely connected to the debate on racial or ethnic profiling. Racial profiling by the German police has been a recurring part of the German political debate for decades that was frequently brought up by civil society organisations (e.g., Amnesty

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International, 2014). Police authorities, ministries of the interior and police unions mostly denied that racial profiling is a structural problem. Even by 2008, the federal government still claimed that racial profiling practices did not exist in Germany and justified this in an answer to a parliamentary question as follows: The term ´racial profiling´ is known from the USA. [...] In the Federal Republic of Germany, such a measure is prohibited by the Basic Law and the constitutional system. Therefore, neither the Federal Criminal Police Office (BKA) nor the Federal Police make use of such an instrument. (Bundesregierung, 2008, translated by the authors)

This official view did not change until 2020. Following the death of George Floyd on 25 May 2020 due to mistreatment by police officers in the United States, racial profiling practices by the German police became a major topic in the media as well as in politics. Despite the COVID-19 pandemic, many people participated in political demonstrations to raise awareness of racism and racist police practices. Among the protestors were young Black Germans and Germans of Colour, who had not been on the streets in such large numbers before and were now drawing attention to the reality of their lives in Germany under the internationally known slogan Black Lives Matter (BLM). This meant that the movement that had emerged in the USA in 2013 had now arrived in Germany. The German media could not ignore this. Numerous media outlets reported on experiences with racism and especially with racial profiling by the German police. Unlike in the UK or some US police departments, German police authorities do not collect official statistical data on police stops. Even then, the conservative Federal Minister of the Interior, Horst Seehofer, rejected the idea to commission a study on racial profiling by the police demanded by the German BLM movement. He claimed that racial profiling is forbidden in Germany and that it, therefore, does not take place (Kelly, 2021). Meanwhile, several German state governments commissioned studies related to policing and racism (for Berlin: Howe et al., 2022). In reaction to public debates on police misconduct since the 1990s (Aden, 2019), a number of German states where the Green Party (Bündnis

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90/Die Grünen) or the Left Party (Die Linke) were part of the governmental majority have established external police accountability bodies (Polizeibeauftragte) since 2014, where citizens can file complaints about the police. Their authority covers cases of police misconduct in connection with stops and biased selection practices. In addition, in 2020, the Berlin State Parliament passed an anti-discrimination law establishing an ombudsperson where people can complain about discrimination. Citizens affected can make claims for damages against the State of Berlin. Since then, the ombudsperson has received a significant number of complaints related to racial profiling by the police (Liebscher, 2022). According to the annual reports published by the external police accountability bodies of Rheinland-Pfalz, Baden-Württemberg and Schleswig-Holstein, complaints related to police stops have not been a major topic for them thus far (Aden & Bosch, 2022). Further research will have to gather information on the reasons why these bodies only rarely investigate cases of police stops and how this develops with the ongoing establishment of external police accountability bodies in a number of other German states, including Berlin, Bremen, Hessen, and at the federal level.

 odel Police Acts Establishing Far-Reaching Powers M for Police Stops When parliaments introduced the police authority for stops without suspicion since the 1970s, stops as such were mostly not the centre of the political debate, but rather the sources of insecurity which were meant to justify this authority (e.g., public spaces affected by drug trafficking and the perceived need of increased police powers in response to terrorism). In West Germany, federal and state laws that allow police stops have undergone several rounds of amendments since the 1970s. Most of these reforms have led to enhanced powers of police intervention (Aden & Fährmann, 2018, 2021; Albers & Weinzierl, 2010). Germany is characterised by a cooperative variation of federalism (cf. Aden & Frevel, 2017). In order to facilitate cooperation among the state and federal police forces, the Ministers of the Interior enacted a model police act (Musterentwurf) in the 1970s that was updated in the 1980s. Recent

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attempts for another update have not yet led to a result (cf. Aden & Fährmann, 2019a, 2019b). As the federal constitution attributes the legislative powers for policing to the 16 Länder, the implementation of the model police act by the state parliaments for their respective police forces is voluntary. However, the political pressure to implement them is usually high (Gusy, 2017, 17). The original model police act, adopted in 1977, was, inter alia, a reaction to an enhanced need for cooperation perceived by German police forces after terrorist attacks committed by the Red Army Faction (RAF) in the 1970s (Zangel & Pfeffer, 2020, 253; Aden & Fährmann, 2021). At that time, the public debate also dealt with the relationship between police and military, de-militarisation of policing, police special units, police weapons and police surveillance (Busch et al., 1988, 59ff. et passim). The model police act that the Ministers of the Interior agreed upon in the 1970s covered numerous police powers, including identity checks (Funk & Werkentin, 1976). The main aims of establishing the model police act were to increase the effectiveness of police work (from a police perspective), to facilitate cooperation between the de-centralised police forces and to legitimise the existing practice. Other perspectives or conflicting interests, especially civil liberties, only played a minor role in the political debates at that time (Funk & Werkentin, 1976, 411; Wagner, 1987, Einl. B. Rn. 50). In addition to standardisation, the model police act aimed at expanding police intervention powers in areas such as preventive detention and suspicion-­less stops, including the reduction of intervention thresholds. This was a major strategic change in relation to the allied forces’ original idea to limit police powers in Germany. While police tactics and equipment were de-militarised in the 1970s, police agencies were attributed significantly extended powers where the Länder integrated the model police act in their laws. Since then legislation has increasingly extended police powers to situations in which neither a concrete danger has arisen nor a criminal offence has occurred (Busch et al., 1988, 200; Weßlau, 1989, 16 ff). Most of the police powers introduced for combating terrorism in the 1970s (Funk & Werkentin, 1976, 408; Saupe, 2010, 179 f.), including enhanced powers with respect to police stops (Riegel, 1978, 16), are still in force today.

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Thus, the model police act established in the 1970s can be perceived as a policy turning-point for police stops in Germany. While German police officers already had stop and search powers with respect to individuals suspected to have committed a criminal (Straftat) or an administrative (Ordnungswidrigkeit) offence, as well as individuals responsible for a danger to public security, this threshold was considerably lowered in all states, based on the model act, with slight nuances between the states with respect to the extent of the powers for suspicion-less stops (Aden et al., 2022, 118 ff.). From then on, officers had the power to stop people without specific individual reasons in so-called crime-prone, dangerous or endangered locations or at so-called control points, with some variation between the 16 states. In all of these cases, police laws allow stops without any specific suspicion or danger (Wagner, 1987, before § 9 Rn. 1). These additional police powers can therefore be perceived as part of a paradigm shift, as they detached police law from the need to justify their actions based on tangible dangers. Furthermore, due to their wide scope and ambiguity, the norms do not provide a framework for meaningful containment that could prevent officers from using these powers in a disproportionate way (Aden & Fährmann, 2018, 17). These norms have also been criticised for facilitating or even provoking racial profiling (e.g., Burkhardt & Barskanmaz, 2019). Following the Constitutional Court’s 1983 census judgement (BVerfGE 65, 1), a revised model police act was adopted in 1986, opting broad legal bases for police information gathering and data processing. Due to the broad scope of the data processing allowed by these laws, the legal bases passed by the state and federal legislators in the following years did not significantly limit the access to police databases (Aden & Fährmann, 2019a, 2019b; Aden, 2022, 124). Together with the rapid evolution of police technology, this can be perceived as another policy turning-point for police stops. Police officers now have access to a significant amount of information stored in databases and thus, compared to the 1970s, much more information about the individuals whom they stop. This effect has accelerated since the 1990s, with extended and additional databases at the national and EU levels (such as the Schengen Information System). Recent developments, such as the initiatives to make

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EU policing and migration databases interoperable, seek to further extend the amount of information that police officers can access for their daily work (cf. Aden, 2020).

 dditional Police Powers Related to Borders A (“Schleierfahndung”) Another policy turning-point that contributed to extended powers for police stops relates to immigration and the abolition of border controls inside the Schengen area in the 1990s. Typically, in a situation in which policy-makers wish to prevent immigration, an overlap between fighting crime and stopping immigration occurs. While “classical” stops by the border police have mostly disappeared inside the Schengen area, new variations of stops have replaced them. Based on a mix of anti-­immigration and crime-fighting rationales (crimmigration) (van der Woude & van Berlo, 2015), policy-makers opted for additional police authority for police stops near the Schengen internal borders in order to prevent illegal immigration and cross-border crime. As a reaction to the abolition of border controls, in addition to the Schengen Information System being established, police officers at the federal and (most) state levels also gained additional powers for police stops, labelled “Schleierfahndung”. According to this police power, the federal officers may check the identity of individuals without any specific suspicion in the border area up to 30 kilometres from the actual border, and on roads of “significant importance for cross-border traffic”. Based on these powers, officers can ask citizens to present their identification and, if necessary, take them to the police station (Möllers, 2000, 382; Kutscha, 2000, 135). In 1998, the Federal Police (Bundespolizei) gained the authority to stop anybody without a specific suspicion on trains and roads insofar as it could be assumed (based on police experience) that the train or road could be used for illegal entry into Germany (§ 22 para. 1a of the Federal Police Law, Bundespolizeigesetz, BPolG). With this authority, the federal police gained even more powers than they had prior to the abolition of border controls (cf. Waechter, 1999; Krane, 2003; Aden, 2017).

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The police and representatives of the Ministries of the Interior dominated the debates on the impact that the abolition of border controls may have had. They tended to use drastic metaphorical images, such as criminals travelling across Europe on a high-speed train, while criminal investigators would have to follow them on bicycles. Proponents of compensation measures for the abolition of border controls argued that the rapidly increasing mobility of cross-border crime demanded new concepts of security policy and police tactics. They claimed the need for flexible legal instruments that allow the police to act without suspicion, in contrast to individual case-related police measures (Walter, 1999, 33). It was widely assumed that organised cross-border crime, terrorism and illegal entry could not be adequately combatted without physical border controls anymore, a hypothesis that was already contested at that time (Kühne, 1991, 12 ff.; Busch, 1995, 37 ff.). Numerous reports and several court cases show that this power leads to a risk of racial or ethnic profiling (Aden, 2017; Cremer, 2013; Fährmann et al., 2022b, Herrnkind, 2000 and Sect. 11.3 below for court cases).

Contested Police Stops in “Dangerous Places” In 2014, a high number of stops and searches in the City-State of Hamburg gained nationwide attention and influenced further debates on police stops in Germany. Hamburg’s police declared three larger districts of the city “dangerous places”, which then led to public protests, demonstrations and civil disobedience. Two incidents had preceded these protests. Tensions in Hamburg had grown in 2013 over the imminent eviction of squats at the Esso-Häuser (“Esso Houses”). Even more significant was the protest camp of the group Lampedusa in Hamburg, which consisted of about 300 refugees struggling for a permanent right to stay. The police stopped and searched the protesters. The protesters and their supporters publicly criticised the police stops as racial profiling: in December 2013, several thousand people protested in Hamburg in support of the refugees. Shortly thereafter, unrelated to the protests, Hamburg’s police reported an alleged attack on the police station of Hamburg’s St. Pauli district, the Davidwache. In response to this alleged

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attack, the police designated major parts of three districts as “dangerous areas” (Gefahrengebiete). In 2015, the supreme administrative court of Hamburg ruled that “dangerous areas” were unconstitutional (OVG HH 4 Bf 226/12). According to the ruling, the decision on the proclamation of these areas where anybody can be stopped without suspicion cannot be left to the police but is reserved to parliament. Only parliamentary procedure would provide the transparency that is required for such a far-reaching police measure that affects most citizens. Police status reports alone cannot justify the definition of an area as “dangerous”, as they are usually not sufficiently transparent, or even public at all. Hence, the Senate, Hamburg’s state government, prepared an amendment to the relevant article of the Hamburg Law on Police Data Processing (HmbPolDVG) that was passed by the state parliament. However, similar to other German states, policy-­ makers maintained “dangerous places” and stop and search practices without suspicion in Hamburg’s police law (Sicherheits- und Ordnungsgesetz). There, the establishment of “dangerous places” needs to be “based on actual evidence” (§ 13 (1) second sentence, lit. a HmbSOG). This means that despite the broad public debate and the legislative amendment, the Hamburg police can still legally conduct stops without suspicion at so-called dangerous places, similar to the police agencies of the 15 other German states. However, the case shows that police agencies may provoke major public protest if they use their authority to carry out suspicion-less stops in an excessive and disproportionate way.

 igration: A Recurring Policy Agenda Setter for Police M Stops Since 2015 The so-called refugee crisis of 2015 has largely influenced the political agenda for asylum and immigration policy, but to some extent also for police stops. In the following years, the main conservative party (CDU/ CSU) used the metaphor of “zones of different security” in Germany, in order to claim extended and more homogenous police powers in the 16 German states and exerted political pressure upon the states governed by Social Democrats, Green or Left Party majorities. This included pressure

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to permit and use the contested “Schleierfahndung” in all German states. The Conference of the State and Federal Ministers of the Interior decided in 2017 to prepare a new model police act with extended police powers in reaction to newly perceived threats, including terrorism. While this new model act is still under discussion, some German states have already considerably extended the legal powers of their police forces, especially Bavaria with an amended Police Act (PAG-Neuordnungsgesetz) passed in the spring of 2018. According to this amendment, the Bavarian police have the power to intervene if there is only an imminent danger for something to be protected by the police, while the model police act still required a concrete danger. This also includes the power to carry out identity checks. Another Bavarian amendment that was passed one year earlier had abolished the limitation of preventive police detention to 14 days (which was already long, compared to other Länder) and established legal bases for the use of new technologies for policing, including body-worn cameras (Aden & Fährmann, 2019a, 2021).

 he COVID-19 Pandemic and the Reaction to the BLM T Movement: New Policy Turning-Points for Police Stops? In the early phase of the COVID-19 pandemic, some state police forces extended police stops in order to enforce social distancing rules related to the pandemic and some State governments introduced an obligation to carry an ID (Fährmann & Arzt, 2020; Fährmann et al., 2022a). Pursuant to § 1 (1) sentence 2 of the German ID law (Personalausweisgesetz, PAuswG), there is an obligation to present one’s ID card at the request of an authorised authority, for example the police. § 1 (1) PAuswG does not impose an obligation to carry identification (Deutscher Bundestag, 2020). After public criticism, the state governments withdrew the obligation to carry ID from the pandemic rules, as they clearly contradicted higher-ranking federal law (cf. Fährmann et al., 2020). Police stop practices changed during the pandemic. Before the pandemic, frequent identity checks directly concerned only a small group of citizens. During the pandemic, however, the pandemic rules temporally prohibited common

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practices amongst the majority of the population of all 16 states, such as sitting on a park bench. This created challenges for both the police and the broader public (Bosch et al., 2020). However, with rising and falling numbers of infections and rapidly changing policies, police stop practices kept changing during the pandemic. It remains to be seen whether and how changes in police practice during the crisis will affect police checks on individuals in the long term and if this may be the starting-point of another policy turning-point with respect to police stops. The BLM movement has triggered a broad political debate on police stops and racial profiling. While this debate has certainly contributed to raising the awareness for biased selection practices in the context of police stops, it is still too early to say if this might become the starting-point of a new policy turning-point that might open the path for reducing police-­ authority to use suspicion-less stops.

11.3 Evaluation of Stop and Search Practice by Courts In a number of court judgments, biased selection practices for police stops have been identified and criticised, for example, by the Rheinland-­ Pfalz Higher Administrative Court (Oberverwaltungsgericht, OVG). An incident in 2010 that reached this court contributed significantly to enhanced public attention for racial or ethnic profiling by the German police. In December 2010, the Federal Police stopped a 25-year-old Black student, who was a German citizen from Kassel, on a train. Without giving any reason, they asked him to identify himself. He refused to show his ID. The argument that subsequently arose ended up in court. The officer justified the stop with the student’s “skin colour”. The Koblenz Administrative Court ruled in February 2012  in favour of the federal police, arguing that the Federal Police law allows checks regardless of suspicion. The Rheinland-Pfalz Higher Administrative Court examined the case in October 2012. The final assessment led to the result that the request to the student to identify himself had violated the principle of non-discrimination (cf. Amnesty International, 2014). In a 2016

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judgment, the same court emphasised that the pre-selection of individuals checked according to § 22 (1a) of the Federal Police Act has to rely upon plausible grounds. This law enables the Federal Police to stop, question, demand identity documents from and inspect objects in the possession of any person in railway stations, trains and airports. In its 2015 report on Germany, the UN Anti-Racism Committee had expressed harsh criticism of these broad powers to stop and check individuals without specific suspicion (UN-CERD, 2015, 5 f.; see also Cremer, 2013 and Aden, 2017, 57 for a critique). Despite this criticism, this law has not yet been amended. Even if several court judgments claim a more restrictive interpretation of this legal provision, the wording still remains ambiguous. An amendment or abolition could therefore prevent police officers from using this authority in a discriminating or disproportionate way. Other court judgments related to police stops tend to use the assumption that identity checks only constitute a minor restriction of fundamental rights. However, they overlook not only potential biased selection practices that violate the fundamental right to non-discrimination, but also the fact that the selection practice is not influenced by the behaviour of the individuals stopped where the law allows suspicion-less stops (see Tomerius, 2017 for a critical assessment of relevant cases). The Court of Justice of the EU (CJEU) criticised German police stop practices near the former borders inside the Schengen area. In 2010, the Court declared suspicion-less police stops meant to replace former border controls near the internal Schengen borders incompatible with EU law, namely with the Schengen Border Code (CJEU, cases C-188 and 189/10, Melki and Abdeli, judgement of 22 June 2010; see Aden, 2017 for related cases from other member states). In October 2022, the European Court of Human Rights (ECtHR) found that Germany did not establish effective remedies in order to hold the police accountable for the potentially racist motives for stops. In July 2012, two federal police officers had carried out an identity check on the applicant, a German national of Indian origin, and his daughter on a train which had just passed the border from the Czech Republic to Germany. The ECtHR found that the applicant’s allegation of racial motives for his selection had not been sufficiently investigated by the

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German authorities and therefore found a violation of the Convention (ECHR, application 215/19, Basu vs. Germany). This judgment may have a major influence on future police stops policy and practice in Germany: thus far, the ECHR is the highest court that confirmed the existence of racial profiling practices in connection with police stops in Germany. This case is therefore likely to have an impact on future judgments by German courts, and it may also motivate German police agencies to critically evaluate their own stop-and-search practices.

11.4 Conclusion and Outlook This chapter has demonstrated that the German police have had far-­ reaching legal powers for police stops since the 1970s. In the context of combatting terrorism and crime, this remained mostly uncontested. Only since the early 2010s has the relationship between the legal authority to carry out police stops and problematic profiling practices become a topic of broader scholarly and public debates. The debates on police powers tended to be rather regional in the past, following the legislative power of the 16 state parliaments for policing. However, the model police act and the debates on compensatory measures for border controls within the Schengen area set the agenda for introducing and extending police powers for suspicion-less stops. The internationalisation of public debates on police and racism has influenced the debate in Germany in recent years. The BLM movement empowered Germans of Colour to draw attention to discriminatory practices in many areas of public life, especially policing. The coalition agreement for the federal government signed by social democrats, greens and liberals in December 2021 promised to improve initial and permanent police training and to establish an external oversight body for the federal police forces in order to prevent discrimination (SPD et al., 2021, 104). The upcoming years will show if this leads to improved police practices, as well as substantial legislative reform with respect to laws that favour institutional and structural racism.

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References Aden, H. (2017). Anlasslose Personenkontrollen als grund- und menschenrechtliches Problem. Zeitschrift für Menschenrechte, 11(2), 54–65. Aden, H. (2019). Unabhängige Polizeibeschwerdestellen und Polizeibeauftragte. In D. Kugelmann (Ed.), Polizei und Menschenrechte (pp. 170–183). Bonn. Aden, H. (2022). Privacy and Security: German Perspectives, European trends and Ethical Implications. In R.  Iphofen & D.  O’Mathuna (Eds.), Ethical Issues in Covert, Security and Surveillance Research (Advances in Research Ethics and Integrity) (Vol. 8, pp. 119–129). Emerald Publishing. Aden, H., & Bosch, A. (2022). Unabhängige Kontrolle als Schutz vor Rassismus und Diskriminierung? In D. Hunold & T. Singelnstein (Eds.), Rassismus und Diskriminierung in der polizeilichen Praxis. Eine Bestandsaufnahme (pp. 729–742). Springer VS. Aden, H. & Fährmann, J. (2018). Polizeirecht vereinheitlichen? Kriterien für Muster- Polizeigesetze aus rechtsstaatlicher und bürgerrechtlicher Perspektive. Accessed August 26, 2023, from https://www.boell.de/de/2018/12/12/ polizeirecht-­vereinheitlichen. Aden, H., & Fährmann, J. (2019a). Verbesserungspotentiale im Polizeirecht – rechtsstaatlich-bürgerrechtliche Perspektiven auf die Diskussion über einen neuen Polizeigesetz-Musterentwurf. In H.  Schwier (Ed.), Polizeirecht im Wandel (pp. 209–231). Hochschule der sächsischen Polizei. Aden, H., & Fährmann, J. (2019b). Defizite der Polizeirechtsentwicklung und Techniknutzung. Zeitschrift für Rechtspolitik, 52(6), 175–178. Aden, H., & Fährmann, J. (2021). Argumente für einen besseren Musterentwurf für einheitliche Polizeigesetze: Kritische Analyse von Entwicklungen im Polizeirecht aus rechtsstaatlicher und bürgerrechtlicher Perspektive. In M. H. W. Möllers & R. C. van Ooyen (Eds.), Jahrbuch Öffentliche Sicherheit 2020/2021 (pp. 580–615). Verlag für Polizeiwissenschaft. Aden, H., & Frevel, B. (2017). Policing Metropolises in a System of Cooperative Federalism: Berlin as the German capital and a city-state compared to Cologne as the Biggest City in North Rhine-Westphalia. In E.  Devroe, A.  Edwards, & P.  Ponsaers (Eds.), Policing European Metropolises (pp. 229–248). Routledge. Aden, H., Bosch, A., Fährmann, J., & Thurn, R. (2022). Police stops in Germany  – Between legal rules and informal practices. Journal of Organizational Ethnography, 11(2), 116–131.

262 

H. Aden et al.

Albers, M., & Weinzierl, R. (2010). Wandel der Sicherheitspolitik: Menschenrechtsorientierte Evaluierung als Kontrollinstrument. In M. Albers & R. Weinzierl (Eds.), Menschenrechtliche Standards in der Sicherheitspolitik: Beiträge zur rechtsstaatsorientierten Evaluierung von Sicherheitsgesetzen (pp. 9–12). Nomos Verlag. Amnesty International. (2014). Racial/Ethnic Profiling: Positionspapier zu menschenrechtswidrigen Personenkontrollen. Berlin. Accessed August 26, 2023, from https://amnesty-­polizei.de/wp-­content/uploads/2016/05/Racial_ Profiling_Positionspapier.pdf Assall, M., & Gericke, C. (2016). Zur Einhegung der Polizei. Rechtliche Interventionen gegen entgrenzte Kontrollpraktiken im öffentlichen Raum am Beispiel der Hamburger Gefahrengebiete. Kritische Justiz, 49(1), 61–71. Belina, B. (2017). “Vorbild New York” und “Broken Windows”: Ideologien zur Legitimation der Kriminalisierung der Armen im Namen der Sicherheit in der unternehmerischen Stadt. In J. Häfele, F. Sack, V. Eick, & H. Hergen (Eds.), Sicherheit und Kriminalprävention in urbanen Räumen. Aktuelle Tendenzen und Entwicklungen (pp. 28–46). Springer VS. Belina, B., & Wehrheim, J. (2011). “Gefahrengebiete”. Durch die Abstraktion vom Sozialen zur Reproduktion gesellschaftlicher Strukturen. Soziale Probleme, 22(2), 207–230. Bosch, A., Fährmann, J., & Aden, H. (2020). Polizei im Ausnahmezustand: Beobachtungen während der Pandemie. CILIP, 42(3) = no. 123, 20–27. Bosch, A., Fährmann, J., & Aden, H. (2021). Kontrollquittungen und -statistiken – Ein Instrument zur Durchsetzung des Diskriminierungsverbots bei Polizeikontrollen. Zeitschrift für Kultur- und Kollektivwissenschaft, 7(1), 187–218. Bundesregierung. (2008). Bekämpfung von Rassismus bei der Polizei. Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten Sevim Dagdelen, Ulla Jelpke und der Fraktion DIE LINKE, Drucksache16/9061. Accessed August 26, 2023, from https://dserver.bundestag.de/btd/16/090/1609061.pdf Burkhardt, M. & Barskanmaz, C. (2019). Verfassungsrechtliche Bewertung der Vorschrift des § 21 Abs.2 Nr. 1 des Allgemeinen Gesetzes zum Schutz der öffentlichen Sicherheit und Ordnung in Berlin – das Konzept der kriminalitätsbelasteten Orte. Accessed August 26, 2023, from https://kop-­berlin.de/files/175 Busch, H. (1995). Grenzenlose Polizei? Neue Grenzen und polizeiliche Zusammenarbeit in Europa. Westfälisches Dampfboot. Busch, H., Funk, A., Kauß, U., Narr, W.-D., & Werkentin, F. (1988). Die Polizei in der Bundesrepublik. Campus.

11  Contextualising Police Stops in Public Debates 

263

Cremer, H. (2013). Studie “Racial Profiling”– Menschenrechtswidrige Personenkontrollen nach § 22 Abs. 1 a Bundespolizeigesetz Empfehlungen an den Gesetzgeber, Gerichte und Polizei. Deutsches Institut für Menschenrechte. Accessed August 26, 2023, from https://www.institut-­fuer-­menschenrechte. de/fileadmin/Redaktion/Publikationen/Racial_Profiling_ Menschenrechtswidrige_Personenkontrollen_nach_Bundespolizeigesetz.pdf Deutscher Bundestag. (2020). Zulässigkeit einer Ausweismitführpflicht in den Corona-Verordnungen der Länder. Accessed August 26, 2023, from https:// www.bundestag.de/resource/blob/701324/5aba43c707a46a7b66f4591fc0d 9abb4/WD-­3-­093-­20-­pdf-­data.pdf. Fährmann, J., & Arzt, C. (2020). Polizeilicher Umgang mit personenbezogenen Daten in der Corona-Pandemie. Datenschutz und Datensicherheit (DuD), 44(12), 801–805. Fährmann, J., Arzt, C. & Aden, H. (2020). Ausweispflicht per Corona-Verordnung? Verordnungsgeber missachten rechtsstaatliche Grenzen, Accessed August 26, 2023, from VerfBlog, 2020/3/29. Fährmann, J., Aden, H., & Bosch, A. (2022a). Exekutive in der Pandemie: Machtzuwächse, Sachzwänge und Gefahren für Demokratie und Rechtsstaat. In H.-J. Lange (Ed.), Politik zwischen Macht und Ohnmacht. Zum politischen Umgang mit der Corona-Pandemie in Deutschland (pp. 93–122). Springer VS. Fährmann, J., Thurn, R., & Aden, H. (2022b). Kontrollieren, wen sie wollen? Das Polizeirecht als Grauzone proaktiver Polizeikontrollen. Kritische Justiz (KJ), 55(3), 322-335. Feest, J., & Blankenburg, E. (1972). Die Definitionsmacht der Polizei: Strategien der Strafverfolgung und soziale Selektion. Bertelsmann Univ.-Verl. Frevel, B., & Groß, H. (2016). “Polizei ist Ländersache!” – Politik der Inneren Sicherheit. In A. Hildebrandt & F. Wolf (Eds.), Die Politik der Bundesländer: Zwischen Föderalismusreform und Schuldenbremse (2nd ed., pp.  61–86). Springer VS. Funk, A., & Werkentin, F. (1976). Der Musterentwurf für ein einheitliches Polizeigesetz  - ein Muster exekutiven Rechtsstaatsverständnisses. Kritische Justiz (KJ), 9(4), 407–422. https://doi.org/10.5771/0023-­4834-­1976-­4-­407 Gusy, C. (2017). Polizei- und Ordnungsrecht (10th ed.). Mohr Siebeck. Herrnkind, M. (2000). Personenkontrollen und Schleierfahndung. Kritische Justiz, 33, 188–208. Herrnkind, M. (2014). “Filzen Sie die üblichen Verdächtigen!” oder Racial Profiling in Deutschland, Polizei & Wissenschaft (3), 35–58.

264 

H. Aden et al.

Howe, C., Decker, C., Knobloch, L., Can, H., & Bosch, A. (2022). Bericht zur Berliner Polizeistudie. Eine diskriminierungskritische, qualitative Untersuchung ausgewählter Dienstbereiche der Polizei Berlin. ZTG (Zentrum Technik und Gesellschaft) der Technischen Universität Berlin. Hunold, D. (2011). Polizei im Revier. Das Verhältnis von Polizisten und Jugendlichen vor dem Hintergrund des sozialräumlichen Kontextes. Soziale Probleme, 22(2), 231–262. Hunold, D., Oberwittler, D., & Lukas, T. (2016). ‘I’d like to see your identity cards please’  – negotiating authority in Police–Adolescent Encounters: Findings from a Mixed-Method Study of Proactive Police Practices towards Adolescents in two German Cities. European Journal of Criminology, 13(5), 590–609. Keller, N. (2018). “Kriminalitätsbelastete Orte”: Wer hat Angst vorm Kottbusser Tor? CILIP, no. 115, 18–24. Kelly, N.  A. (2021). Rassismus. Strukturelle Probleme brauchen strukturelle Lösungen. Atrium Verlag. Kern, A. (2016). Produktion von (Un-)Sicherheit - Urbane Sicherheitsregime im Neoliberalismus. Westfälisches Dampfboot. Krane, C. (2003). “Schleierfahndung”: Rechtliche Anforderungen an die Gefahrenabwehr durch ereignisunabhängige Personenkontrollen. Boorberg. Kühne, H. (1991). Kriminalitätsbekämpfung durch innereuropäische Grenzkontrollen? Auswirkungen der Schengener Abkommen auf die innere Sicherheit. Duncker & Humblot. Künkel, J. (2020). Sex, Drugs & Control. Das Regieren von Sexarbeit in der neoliberalen Stadt. Westfälisches Dampfboot. Kutscha, M. (2000). “Schleierfahndung” und Aufenthaltsverbot: Neue Polizeibefugnisse in Berlin, Brandenburg und Sachsen. Landes- und Kommunalverwaltung (LKV), 10(4), 134–137. Liebscher, D. (2022). „Nicht immer böse gemeint “Die Polizei verhindere bewusst., dass Vorfälle aufgeklärt werden. Interview in die tageszeitung (taz), 5 January 2022 (Interview: Susanne Memarnia). Maillard, J. d., Hunold, D., Roché, S., & Oberwittler, D. (2016). Different styles of policing: discretionary power in street controls by the public police in France and Germany. Policing and Society, 18(2), 175–188. Möllers, C. (2000). Polizeikontrollen ohne Gefahrverdacht - Ratio und rechtliche Grenzen der neuen Vorsorgebefugnisse. Neue Zeitschrift für Verwaltungsrecht (NVwZ), 19(4), 382–387.

11  Contextualising Police Stops in Public Debates 

265

Phillips, C., & Bowling, B. (2012). Ethnicities, Racism, Crime, and Criminal Justice. In M. Maquire, R. Morgan, & R. Reiner (Eds.), The Oxford Handbook of Criminology (5th ed., pp. 370–397). Oxford University Press. Pichl, M. (2014). Zur Entgrenzung der Polizei – eine juridische und materialistische Kritik polizeilicher Gewalt. KritV | CritQ |Rcrit, 97(3), 249–266. Riegel, R. (1978). Neueste Entwicklungstendenzen im Polizei- und Strafverfahrensrecht. Zeitschrift für Rechtspolitik (ZRP), 11(1), 14–20. Saupe, A. (2010). Von “Ruhe und Ordnung” zur “inneren Sicherheit”. Eine Historisierung gesellschaftlicher Dispositive. Zeithistorische Forschungen/ Studies in Contemporary History, 9(2), 170–187. SPD, Bündnis 90/Die Grünen, & FDP. (2021). Mehr Fortschritt wagen. Bündnis für Freiheit, Gerechtigkeit und Nachhaltigkeit. Koalitionsvertrag. Thompson, V. E. (2018). There is no justice, there is just us! In D. Loick (Ed.), Kritik der Polizei (pp. 197–221). Campus Verlag. Tomerius, C. (2017). “Gefährliche Orte” im Polizeirecht – Straftatenverhütung als Freibrief für polizeiliche Kontrollen? Deutsches Verwaltungsblatt (DVBl.), 132(6), 1399–1406. Ullrich, P., & Tullney, M. (2012). Die Konstruktion “gefährlicher Orte”. Eine Problematisierung mit Beispielen aus Berlin und Leipzig. Sozialraum.de, 4(2) Accessed August 26, 2022, from https://www.sozialraum.de/die-­ konstruktion-­gefaehrlicher-­orte.php UN-CERD (United Nations Committee on the Elimination of Racial Discrimination). (2015). Concluding observations on the combined nineteenth to twenty-second periodic reports of Germany. Accessed August 26, 2023, from https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx ?symbolno=CERD%2fC%2fDEU%2fCO%2f19-­22&Lang=en. van der Woude, M. A. H., & van Berlo, P. (2015). Crimmigration at the Internal Borders of Europe? Examining the Schengen Governance Package. Utrecht Law Review, 11(1), 61–79. Waechter, K. (1999). Die “Schleierfahndung” als Instrument der indirekten Verhaltenssteuerung durch Abschreckung und Verunsicherung. Die Öffentliche Verwaltung (DÖV), 54(4), 138–147. Wagner, H. (1987). Kommentar zum Polizeigesetz von Nordrhein-Westfalen und zum Musterentwurf eines einheitlichen Polizeigesetzes des Bundes und der Länder. Luchterhand. Walter, B. (1999). Erweiterte Befugnisse der Polizei zur Bekämpfung der illegalen Einreise und der grenzüberschreitenden Kriminalität: Eine unabdingbare Notwendigkeit nach dem Wegfall der allgemeinen Grenzkontrollen in Westeuropa. Die Polizei, 90(2), 33–40.

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Weßlau, E. (1989). Vorfeldermittlungen: Probleme der Legalisierung “vorbeugender Verbrechensbekämpfung” aus strafprozeßrechtlicher Sicht. Duncker & Humblot. Zangel, L., & Pfeffer, K. (2020). Die Entwicklung des Polizeirechts und dessen Anwendung: Von den Anfängen bis zur Gegenwart. In J.  Stember (Ed.), Zwischen innovativer Polizeiarbeit und neuem Management (pp.  235–261). Nomos Verlagsgesellschaft.

12 The Politics of “Stop & Search” in the Netherlands: A Process of Juridification Jan Terpstra and Renze Salet

12.1 Introduction “Stop and search” can be seen as an essential, but highly contested aspect of policing. The police have the power to stop and search a person if he or she is suspected of criminal activities. The police may also use stop and search for preventative reasons. However, practices of stop and search may also have a negative impact on the relations with citizens and on police legitimacy (Bradford, 2017). Over the past years, both aspects of stop and search have given rise to vigorous debates about the scope of police powers, the use of these powers, the limits of the preventive state, ethnic profiling, discrimination and the protection of citizens’ rights. This chapter concentrates on the politics of “stop and search” in the Netherlands. What have been the main political debates about “stop and search’ in this country over the past 20 to 25 years, who were the main actors and what were the main discourses, views and other factors that were involved in this process? J. Terpstra (*) • R. Salet Radboud University, Nijmegen, The Netherlands e-mail: [email protected]; [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 J. de Maillard et al. (eds.), The Politicization of Police Stops in Europe, Palgrave’s Critical Policing Studies, https://doi.org/10.1007/978-3-031-35125-9_12

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In the Netherlands, in fact, there has not been one more or less homogeneous political process of “stop & search”, but there have been several ‘streams’ (Kingdon, 1984) of debates and decision-making, each around one specific issue. To understand this complex political process of “stop and search” in the Netherlands over these years, this chapter will focus on four different issues. By investigating these four cases, we can better understand what actors, factors and processes have been involved in this highly varied process of politics. Although there are some links between these ‘streams’ (for instance in the actors involved or because the streams are dependent on the same political climate or agenda), in many respects they can be seen as more or less separate. By investigating these four streams of debate and decision-making, it will be possible to get a more complete view of developments in the politics of “stop and search” in the Netherlands. To a certain degree, these developments can be understood as an important element in the increasing securitization or the rise of the security complex in the Netherlands over the past few decades (Terpstra & Van der Vijver, 2006; Terpstra, 2010; Schuilenburg, 2017). In this chapter, however, we will try to present a somewhat different interpretation of the developments of “stop and search” from the perspective of juridification (Blichner & Molander, 2008; Magnussen & Nilssen, 2013). The first three cases deal with the introduction of new legal powers, especially for police street work. Each of these powers is part of administrative law, not of criminal law. Each of these formal powers has caused a lot of debate and criticism, often over many years, both about their relations to fundamental legal principles and citizen rights, and about more practical issues, such as their feasibility and effectiveness. The three powers discussed here have been the most important in the politics of ‘stop and search’ in the Netherlands over the past decades. The fourth case is also relevant to understand the politics of “stop and search” in the Netherlands, but it has a very different position in this process. It is not so much a top-down issue about the extension of legal powers of the police, but a bottom-up issue about how the police have been treating members of ethnic and social minorities. Over several decades now, in the Netherlands a debate has been going on about equality, fairness, justice and discrimination by the police (reframed over the

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past decade in terms of ‘ethnic profiling’) in their relations with members of ethnic minorities. In this chapter, first we will briefly mention some of the legal aspects of “stop and search” in the Netherlands. Next, we elaborate on the four cases that can be distinguished in the Dutch politics on “stop and search”. In the final sections of this chapter, we come to some conclusions and present the perspective of juridification as a relevant approach for understanding developments in the politics and practice of “stop and search” in the Netherlands.

12.2 Some Notes on Relevant Legal Concepts To understand the politics of “stop and search”, first it is relevant to deal with the legal context of this practice. “Stop and search” as such is not a legal concept in the Netherlands. The Dutch police have several formal powers that may be used in practices of “stop & search” in public places. The most important of these formal powers based on criminal law that are relevant in this context, are: • stop (staandehouding) (in case of rule violation and suspicion of guilt, and for the identification of a person); • arrest (aanhouding) (in case of a suspected person who will be taken to the police station); • search (fouilleren) (search of clothes and objects, both in case of criminal investigation (which means a suspected person) and in case of the risk of danger (both for the person involved, the police officer and others)). In addition, in the Netherlands there are some other formal powers for identity checks and controls. Most of these powers are not based upon criminal law, such as the check of identity of a person (identiteitscontrole), preventive search, control on the basis of the Road Traffic Act or the Alcohol Licensing and Catering Act, and the control of foreigners. In the Netherlands, over the past 20 years, there have not been fundamental or radical changes in most of the formal powers of the police as

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far as it concerns criminal law. More or less in the same line is that in this jurisdiction there have not been any important (political and/or social) debates in relation to these police powers based on criminal law. There have been some fundamental changes in this field, such as the introduction of formal powers to control proactively, that means control without a specific suspicion. This might be called the ‘preventive turn’ in Dutch “stop and search” policy. However, with some minor exceptions, these changes do not concern criminal law, but administrative law.

12.3 Administrative Restraint With the so-mentioned ‘administrative restraint’ (bestuurlijke ophouding), the Dutch mayor has the power to remove groups of people to another location and to require that they stay there for a maximum of 12 hours. This power of deprivation of liberty can only be used in a local situation defined as urgent and against groups of persons who do not comply with rules of public order or with rules that have the ‘aim of reducing public danger’ (De Jong et al., 2017: 85–96). This power can be used without the involvement of the court. According to Rogier et  al. (2004), this administrative power is unique to the Netherlands. The power of administrative restraint was introduced in the year 2000 with a change in the Municipal Act. The main reason to introduce this legal power was the European Championship football that was organized in Belgium and the Netherlands in that year. In the 1980s and 1990s, many European countries were confronted with football hooliganism. The Dutch government wanted to prevent this from also happening at the prestigious Euro 2000 championship. The new power was meant to be used against (potential) hooligans. This was not a completely new issue. On the contrary, for many decades both the national government and local authorities had been struggling with the lack of adequate legal instruments to cope with situations in which large numbers of protestors might cause serious social disorder. For instance, in 1966, a police chief in Amsterdam decided to arrest some hundreds of participants in a protest meeting against the war in Vietnam and to transport them away, in some cases almost 20

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kilometres distant. As a sort of police punishment, the protestors had to walk back to the centre of Amsterdam. The main argument for the police to use this strategy was that there had been no permission for this protest meeting and that other measures did not work. However, this police strategy of preventive arrest was legally not acceptable, as a Commission found after the investigation of how the Amsterdam police had operated in policing demonstrations and social disorder in the ‘hot’ summer of 1966.1 Despite this critical assessment, the practice has still continued for many decades. From time to time, the risk of serious large-scale disturbances has caused the police to arrest large numbers of people without reasonable suspicion and without the intention of starting criminal law procedures. For instance, in 1994, large numbers of protestors were arrested in the city of Utrecht. The same happened in 1997 with a demonstration against the Euro Summit in Amsterdam. After all these years of unlawful practices, the general political consensus was that a legal solution should be created. On the one hand, the unlawful preventive arrest of protestors should be stopped. On the other hand, there was a strong political commitment to create legal means to prevent or stop large-scale forms of serious social disorder. The incident and police practices at the Euro Summit of 1997 meant that the Minister of Justice had to admit in Parliament that these police actions had been unlawful. Because the criminal justice system would not be able to handle large numbers of arrested protestors, the only available option seemed to be in administrative law. The general fear of serious problems with hooliganism at Euro 2000 meant that, in May of that year, the Dutch parliament accepted a change to the Municipal Act, creating the power of administrative restraint (De Jong, 2003). However, this was not the final solution, nor the end of this process. Since the year 2000, several practical problems have meant that the formal power of administrative restraint has been used only very rarely. The few cases in which this power has been used (for instance, in the case of the Ajax fans who were sent back from Rotterdam to Amsterdam by train   Rapport Commissie Enschede (1966), retrieved nieuwe-amstelstraat-de-methode-koppejan-17-juli-1966 1

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on 17 April 2005[Auditteam Voetbalvandalisme, 2005]) often resulted in new debates and criticism about the legal basis of this measure. Legal scientists have generally agreed that there are serious legal problems with the administrative restraint. For that reason, it may be expected that the debate about this formal power will probably go on in the future (De Jong, 2014; De Jong et al., 2017: 98–107).

12.4 Identification Checks In the Netherlands, the first proposals to introduce a citizens’ duty of identification were made in the 1930s. Several times, the government decided not to follow this suggestion, saying that this obligation would mean that every citizen could be seen as ‘a potential criminal’, which was regarded as in conflict with ‘Dutch traditions’ (Meldpunt Misbruik Identificatieplicht, 2014). Soon after the German invasion in 1940, however, the occupation force decided to introduce an obligatory identity card and a general duty of identification. This system was a crucial link in the German suppression of the Dutch population and the deportation of about 107.000 Jewish people from the Netherlands to the Nazi concentration camps. After the war, the duty of identification was repealed. The memory of the war has meant that, for about 40 years, the notion of an identification duty and of personal registration has been a political taboo in the Netherlands (Meldpunt Misbruik Identificatieplicht, 2014). For instance, in 1971, a decision by the government to have a national census created so much resistance, because of the symbolic association with the system of personal registration in the Second World War, that a census was never organized again. However, in 1984, the Minister of Justice presented as ‘his personal view’ that a general duty of identification should be introduced to facilitate the control of crime. This suggestion raised a lot of criticism and disapproval (Meldpunt Misbruik Identificatieplicht, 2014; Böcker, 2002). Still, in the years between 1985 and 1990, from time to time politicians, especially of right-wing parties, proposed to introduce some form of duty of identification. In 1991, the government presented a first draft of a bill on the duty of identification. At the end of this process, the

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Dutch parliament accepted this bill. In June 1994, the Law on the (Limited) Duty of Identification came into force. At different moments in this process, different arguments were used to justify the need for an identification duty. At first, it was presented as an important instrument to fight crime and fraud. Later on, more emphasis was put on the abolition of internal European frontiers as a consequence of the Schengen agreement. Internal control to identify persons should replace the traditional border controls. In the final bill, the control of football hooliganism and of fare dodging were used as the main arguments. Böcker (2002: 68–69) seemed to be right when she concluded that the duty of identification was seen as a solution, but that it remains to be seen for which problem. In the first years of this process, between 1984 and 1994, many actors were involved in the often-heated political, legal and social debates about the duty of identification. However, as the years went on, this had become an issue that only attracted members of parliament and legal specialists. Böcker (2002: 69–70) suggested that this may have been a consequence of both the long duration of the debate and the complexity and opacity of the bill. On the other hand, however, it also looks as if the general social reluctance and resistance against the duty of identification had gradually diminished. As many opponents had predicted, the introduction of the limited identification was the first step towards an extended duty of identification. In 2000, six years after the Limited Duty of Identification Act came into power, a right-wing politician asked the government to investigate if an extended duty of identification could be a solution for the many legal gaps in the existing arrangement. However, the terrorist attacks in New York on 11 September 2001 have drastically changed the political agenda with regard to the politics of security in the Netherlands, and also in relation to the issue of identification. From that point on, the fight against terrorism has been presented as one of the main goals of the duty of identification. As had also been the case in the 1980s, it was not the police, but mainly politicians that supported this policy. Police leaders generally did not believe in the effectiveness of a general duty of identification and often worried about the potential negative implications that

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this might have for relations between the police and especially members of ethnic minorities (Böcker, 2002: 75–80). After the elections of 2001, a new right-wing government came into office in the Netherlands with security as its main policy issue. In December 2003, Parliament accepted the new bill on the extended duty of identification. This new identification legislation was intended to promote the reduction of crime, facilitate effective law enforcement and prevent and reduce terrorism. Once again, many legal organizations raised objections against this bill, as well as some of the small political parties in Dutch parliament (Meldpunt Misbruik Identificatieplicht, 2014). The government had promised that the police would only be allowed to stop and ask citizens for their ID if this would be ‘reasonably necessary’, in other words if there was a concrete and legitimate reason to do so.2 However, soon after the Extended Identification Act came into force in 2005, it was revealed that police officers imposed ID-fines on a mass scale (despite the fact that police leaders did not believe in the effectiveness of this new power). In the first 12 months, the police imposed about 70.000 ID-fines (€ 60 for an adult) (Everwijn et al., 2009). This practice caused fierce criticism of both the legal duty and of the way the police used this new power. The police practices of stop and ID-check were said to be arbitrary, discriminatory, especially focused on vulnerable individuals, such as homeless and addicted persons, with abuse of powers, and often motivated by the need to meet quantitative targets. It was feared that this practice would have negative consequences for the image of the police and for police-citizens relations. Finally, the question was raised, if this practice would really be effective in reducing serious crime or preventing terrorism? (Wijnberg, 2006). Three months after the Extended Identification Act had come into force, the Ministry and the Public Prosecution Council declared that they were worried about how the police used their new powers to control citizens’ IDs. For that reason, the Council sent a new instruction to the police forces that they should use this power only if strictly necessary for the implementation of one of the legal police tasks, in a proportionate  Eerste Kamer der Staten-Generaal, 29218 C, Memorie van Antwoord, 28 April 2004, https:// zoek.officielebekendmakingen.nl/kst-20032004-29218-C.html. Also Police Act 2012, art. 8.1.

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way and not as an end in itself. In 2009, the evaluation of the Extended Identification Act confirmed that, at first, the police had a very broad interpretation of their new power. The evaluation suggested that, after the first three months, the number of ID-tickets imposed by the police had declined. Data presented by Wijnberg (2006) showed, however, that it took much longer before the police became more reticent in their control practices of citizens’ IDs. Since 2008, the annual number of ID-fines has still been between 20.000 and 25.000.3 Several studies tried to answer the question as to whether the police followed the law that ID-checks should only be used if it was necessary for the implementation of legal police tasks. The conclusions of these studies differed sharply. On the one hand, there were studies that concluded that abuse of the ID-powers happened only in a very limited number of cases (Everwijn et al., 2009; Kuppens et al., 2011a). On the other hand, a study based on national data from the Ministry of Justice and Security suggested that, in almost 40% of all cases, the identity of a person was checked by the police without suspicion of an(other) offence (Bureau Jansen & Jansen, 2009). Because it is not clear what may have caused these different findings, this important question remains unanswered. In conclusion, in the Netherlands, the power of the ID-check has remained disputed and a source of conflict. For that reason, in 2007, the chairman of one of the police unions suggested to end the practice of stop and identity check completely (Bureau Jansen & Jansen, 2009). It looks like, over about the past ten years, the debate has shifted to other issues (such as ethnic profiling and the use of new digitalized forms of identity control). However, the intended effectiveness of the extended identification for the prevention and reduction of crime and terrorism has remained doubtful.

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12.5 Preventive Search The third legal power to discuss here is the ‘preventive search’. This measure gives the mayor, after seeking the permission of the elected municipal council, the potential to designate an area as a so-called safety-risk-area (Veiligheidsrisicogebied). If the public prosecutor gives an order for preventive search, the police have the power to search every person in this area (including their baggage and vehicle) for the possession of weapons. This order extends for a maximum of 12 hours and has to contain the arguments why a preventive search in the area is necessary. The introduction of this measure meant a clear break with the past. Before the introduction of preventive search, the police were only allowed to search someone when they suspected that the person was involved in a criminal offence. This power of preventive search was introduced in 2002 by a private member’s bill. Both the steadily increasing use of weapons in the eighties and nineties, and some concrete incidents were used as arguments to introduce this bill in parliament. These incidents included a shooting at a metro station in Rotterdam, causing wounding to five innocent victims. After this tragic incident, the mayor, the police chief and the public prosecutor of the city of Rotterdam proposed to introduce a power for the police to search citizens for weapons. This incident created the room for a political debate about a specific power for the police to fight the possession and use of weapons. Besides these two arguments, in the early 2000s, Dutch society was also confronted with random, fatal acts of violence during the nightlife.4 These incidents caused a lot of social unrest. Moreover, a study showed that most violent incidents happened during the nightlife and that 15% of citizens were afraid of becoming a victim of violence during the nightlife (Schreuders et al., 2000; Van der Torre & Ferwerda, 2005). Even before the introduction of the private member’s bill in parliament, some experiments had already started to investigate whether the existing laws were already a sufficient legal basis for preventive search.  Tweede Kamer 1999–2000, 26,865, nr 3 memorie van toelichting.

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The court judged that this was not the case, so the introduction of a specific law was considered necessary. In the years following the introduction of preventive search, now and then there has been a debate about the use of this power in practice. Because it is a power of the mayor, in practice the use of the measure differs strongly between municipalities, which implies that the debate about preventive search also often depends on the local context and developments in the municipalities. A study on the implementation of preventive search in several municipalities three years after the introduction showed some serious bottlenecks and issues for debate (Van der Torre & Ferwerda, 2005). The first is the effectiveness of the measure. Preventive search has a major impact on police capacity, so, according to most politicians, the search should result in the confiscation of large numbers of weapons. In practice, this turns out to be rather disappointing. The second issue is the stigmatizing effect for the safety-risk-area. In some cases, a specific area has been designated as a safety-risk-area for more than two years (parliament had decided that this should be for a maximum of two years) (Salet, 2009). The third point of debate is selectivity by the police during the search. Although searches in the safety-risk-area should take place at random, in practice, police officers often used selection criteria (Kuppens et al., 2011b). Despite the limited use of preventive search in practice, this legal power was extended in 2011. Both the bottlenecks mentioned before, and some concrete incidents contributed to this extension. The incidents showed that, in some cases, the preventive search cannot wait so long and, in those cases, the mayors felt compelled to make preventive searches possible by emergency decree. However, this was not legally allowed, because emergency decrees are not supposed to interfere with the personal privacy of citizens (Wierenga et al., 2016). However, the procedure for the municipal council to designate an area as a ‘safety-risk-area’ was felt to be very time-consuming. In some cases, the urgency was too high to await this procedure. These circumstances resulted in the request to extend the law. In 2011, the government responded to this suggestion with the introduction in parliament of a bill on ‘urgent preventive search’ (spoedfouilleren). In 2014, the new act came into force. Since then, the mayor has had the room to designate a safety-risk-area after consultation

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with the public prosecutor, but without the permission of the municipal council. Afterwards, the mayor has to inform the council as soon as possible. Moreover, initially the public prosecutor can give the order by verbally instead of on paper. This has to be corrected afterwards. An important debate has concentrated on the question of whether preventive search has been discriminatory and has resulted in ethnic profiling. As a result, in most municipalities, preventive search is not used on a regular basis. However, as mentioned before, the use of this power differs substantially between municipalities. Consider, for example, the two biggest cities of the Netherlands. On the one hand, in Rotterdam, preventive search is used on a regular basis. On the other hand, because of the suggested relationship with ethnic profiling, the mayor of Amsterdam has become rather reluctant to use this power. In 2019, the police chief of Amsterdam (a former chief of the Rotterdam police unit) proposed to use the power more often in a specific part of Amsterdam because of the growing number of fatal violent incidents. At first, the mayor was convinced and sent a proposal to the municipal council to use the power for preventive search more often. However, the prominence of the Black Lives Matter movement in the Netherlands, after the killing of George Floyd in the U.S. in spring 2020, meant that the mayor of Amsterdam changed her mind. Because of the suggested relationship between preventive searches and ethnic profiling by the police, she decided to withdraw her proposal.5 Recently, however, the mayor of Amsterdam changed her mind again. After two years of debate, she decided to allow five experiments with preventive search to see what the effects might be on public safety in Amsterdam. The reason for this change is the growing number of incidents involving stabbing weapons and continuing political pressure from right-wing parties.6 In 2020 a member of parliament asked the government to investigate if preventive search should also be made possible in cases of problems with illegal fireworks. The immediate cause for this question was growing problems during the celebration of new year, including the use of illegal  https://www.parool.nl/amsterdam/preventief-fouilleren-in-amsterdam-van-de-baan~b715e60c/?r eferer=https%3A%2F%2Fwww.google.nl%2F Parool 12 juni 2020. 6  https://www.parool.nl/amsterdam/in-deze-5-buurten-gaat-amsterdam-preventief-fouilleren~bffd abee/?referrer=https%3A%2F%2Fwww.google.nl%2F Parool 19 maart 2021. 5

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fireworks.7 In June 2020, the Minister of Justice and Safety reported that, at this moment, there is no legal basis for preventive searches in case of problems with illegal fireworks. The minister promised to obtain expert advice on the question, how and under which conditions this legal basis might be created?

12.6 The Issues of Discrimination and Ethnic Profiling The fourth issue to be dealt with here is the (supposed) discrimination and ‘ethnic profiling’ by the Dutch police. This issue has a somewhat different position in the politics of ‘stop and search’ in the Netherlands. The former three issues reflected the (political) need for more police powers and the growth of the security complex. This final issue concentrates on what the practices of ‘stop and search’ mean for members of ethnic minorities. In the Netherlands, this debate has had a history of at least four decades now, starting in the late 1970s and early 1980s. In the years before, large numbers of people from especially Turkey, Morocco and Surinam had migrated to the Netherlands. After some years, increasing numbers of people started to realize that it would be an illusion to assume that most of these migrants would only stay temporarily in the Netherlands, and that the integration and social and economic position of these ‘newcomers’ would raise many important new challenges (WRR, 1979). Among the first who demanded attention be paid to problems in the relations between the police and members of ethnic minorities, such as discrimination, were researchers such as Luning (1976), Bovenkerk (1978) and Aalberts and Kamminga (1983). Since that moment, this issue, often in combination with the ethnic diversity of police personnel, has been a difficult topic for the Dutch police. Since the mid-1980s, the Dutch police organizations have taken several measures to do something about these problems, such as the introduction of complaint procedures and interpreters, the promotion of ‘multicultural craftsmanship’ and ‘intercultural  Kamerstukken II 2019/20, 28,684, nr. 599.

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expertise’ and the improvement of organizational ‘diversity’ (by recruitment of more members of ethnic minorities), policies that often proved not to be very effective (Çankaya (2011)). Between 2011 and 2013, ‘ethnic profiling’ (as it is called now) by the police became an important public issue. One of the drivers of this process was a study by Çankaya (2012) who showed how police officers make daily decisions in proactive police work and how they use certain images of ‘dangerous outsiders’. Organizations, such as Amnesty International, Control Alt Delete, ENAR and Open Society Justice Initiative, also drew attention to issues of discrimination, ethnic profiling and unequal treatment by the Dutch police. For instance, in 2013, Amnesty International concluded in one of its reports that the Dutch police had been using ethnic profiling in a systematic way, with the result that members of ethnic minorities are more often confronted with proactive stops and controls, without being suspected of a crime. At first, the Dutch police responded by saying that the problem of ethnic profiling was limited to incidents and that it strongly rejected this practice (Landman & Kleijer-Kool, 2016). Since that moment, the debate about ethnic profiling by the Dutch police has continued. Several empirical studies played an important role in this process, although their findings were often not consistent and raised many new questions. For instance, Van der Leun et  al. (2014) found that the police in the Hague did not use ethnic profiling in a systematic way. Svensson (2015) even found no indications of what he called ‘unequal treatment’ of young members of ethnic minorities by the police. On the other hand, Mutsaers (2015) concluded that, in traffic control, the police officers focus especially on members of certain ethnic groups. The mass media reported this study in headlines such as: ‘Dutch police discriminate on a large scale’. In his reaction, the Chief Constable repeated that he opposed any form of discrimination, but he also denied that this was the usual practice of the Dutch police in general (Landman & Kleijer-­ Kool, 2016). The publicity about discrimination by the police was strongly triggered by an incident in the Hague when, in June 2015, a man of Antillean origin, called Mitch Henriquez, died soon after his violent arrest by the police. Some days later, a demonstration was organized against police

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violence, resulting in riots that continued for some days. Although this incident had nothing to do with proactive policing or with ethnic profiling, it contributed to the claim that the Dutch police often use ethnic profiling and discriminate against members of ethnic minorities. In 2016, several incidents that were extensively dealt with in the mass media contributed to this atmosphere. For instance, well-known persons, such as the singer Typhoon and Feyenoord goalkeeper Kenneth Vermeer, were stopped and controlled by the police, not for the first time, simply because they were black and driving an expensive car. The following year, a further study was published about the practice of proactive policing (Landman & Kleijer-Kool, 2016). This study showed that many of the persons stopped by police officers were citizens with a ‘non-Dutch appearance’. The researchers concluded that, in about 40% of these cases, they could find no ‘objective and reasonable justification’ for this decision. Police officers made these decisions on the basis of certain stereotypes and images of members of ethnic minorities, suggesting that they are more often involved in crime. The researchers were not able to answer the question about the disproportionality of this practice. They also raised the question about the effectiveness of the current practices of proactive control by the police. One of the central topics in this debate has been the introduction of stop forms that Dutch police officers should use on every occasion that they stop a citizen. Organizations such as Amnesty International and Control Alt Delete and anthropologist Mutsaers (2015) had already been strongly supportive of such a measure for a couple of years. After the upheaval caused by the police stop of singer Typhoon, in June 2016, the left-wing political party Green Left tabled a motion in Parliament to introduce these stop forms. The police objected against these forms, claiming that this would not be effective and would contribute to more red tape. The police preferred ‘cultural change’ to reduce the risk of undesirable forms of ethnic profiling (Landman & Kleijer-Kool, 2016). The government decided on a study of international experiences with stop forms. At the end of 2016, this study was published. One of its main conclusions was that there were no clear indications that stop forms would be effective in reducing ethnic profiling by the police (Pro Facto, 2016). Although the stop forms are still under discussion, since then the

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government has not decided to introduce them, maybe also because new studies did not provide additional evidence for the effectiveness of stop forms in the reduction of ethnic profiling (Landman & Sollie, 2018). In 2020, the dramatic death of George Floyd in the US caused by police violence raised much international public outcry and motivated large numbers of people to demonstrate against discrimination, police violence and unacceptable stop practices by the police. In May and June 2020, many demonstrations were also held in the Netherlands, not only out of solidarity with Black Lives Matters in the US, but also in relation to ethnic profiling in the Netherlands. It contributed to a remarkable turn in the position of the Dutch government, with the prime minister calling discrimination a ‘systemic problem’, also to be found in the Netherlands.8 Over the years, the debate on ethnic profiling in the Netherlands has confronted several problems. First, as many authors have noted, the concept is often confusing and it proves very difficult to measure, especially the element of disproportionality (the so-called benchmark problem) (Bovenkerk, 2014; Van der Leun & Van der Woude, 2011; Landman & Kleijer-Kool, 2016). The suggestion that research findings from the US about discrimination and ethnic profiling by the police might also be valid for the situation in the Netherlands is often strongly rejected (Van der Leun & Van der Woude, 2011; Svensson, 2015; Dekkers et al., 2015; Landman & Kleijer-Kool, 2016). One research finding, however, is irrefutable and undeniable: large numbers of members of ethnic minorities in the Netherlands have the feeling that the police try to control them more often than they do other people (Van der Leun et al., 2013; Andriessen et al., 2014; Andriessen et al., 2020). It has been a main reason for the Dutch police to intensify their policy against unacceptable forms of ethnic profiling (Andriessen et al., 2020). It is most likely that the feelings of discrimination at the hands of the police among large numbers of members of ethnic minorities contributed to the many demonstrations in the Netherlands in 2020 against police violence and ethnic profiling.  https://nos.nl/artikel/2336094-rutte-over-racisme-ook-nederland-heeft-een-probleem.html

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12.7 Some Conclusions Some conclusions can be drawn from the preceding analysis of the developments in the politics of “stop and search” in the Netherlands. First, the politics of ‘stop and search’ in the Netherlands has a much longer duration than we initially presumed (often going back to the mid-1980s). Over all these years, the different aspects of “stop and search” have given rise to conflicting views, often related to different perspectives on the relations between the police and citizens. In some cases, these developments are related to more general social and political processes, such as the rise of the security complex. The politics of “stop and search” is also often dependent on more general social, political and cultural developments, such as changing discourses about migration or about the prevention of social problems. Secondly, the politics of “stop and search” in the Netherlands has two different trajectories, top-down and bottom-up. The first trajectory is mainly motivated by the aim of extending police powers and by promoting the prevention of security problems. The second, bottom-up trajectory seems to be mainly motivated by the wish to create better protection of citizens’ rights and to reduce discrimination of members of ethnic minorities. In each of the four cases that were analysed here, the dynamics of the politics of “stop & search” strongly depended on conflicting relations between at least three different groups of actors: politicians (often, but not only, right-wing politicians who ask for more powers for the police to fight crime and social disorder); legal scientists and human rights defenders; and groups of stakeholders and/or their agents (such as football supporters, demonstrators or victims of discrimination). In some cases, researchers were also involved in putting new issues on the political agenda. The four cases suggest that it is not always possible to make a sharp distinction between these groups of actors. Critical incidents (for instance, a stabbing incident) can play an important role in these political processes, especially when they receive much attention from the mass and/or social media. In some cases, critical incidents may be necessary to transform a more or less hidden stream of emotions into a collective

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process of politics, and to open a window of opportunity for policy change. In those cases, the ‘solution’ to the problem has often already been circulating for some time, although in a less developed form. The first three cases showed that, at a certain moment, the ‘problem (recognition)’, the now accepted ‘solution’ and the relevant coalitions of actors come together and create a window of opportunity, illustrating the relevance of Kingdon’s (1984) multiple-streams model. Third, debates about the need for new police powers usually do not end after the legal introduction of those powers. The political process often goes on, even after the legalization and implementation of these police powers. In some cases, policy issues may simply lose priority or even disappear because other, competing frames have become more important and/or may even create new, more dominating arenas. In some cases, the old issues are taken over (or reframed) in a new policy or policy frame. It also looks as if, at first, certain issues with regard to ‘stop and search’ may seem to disappear from the political agenda, only to come back later on, although often in somewhat different terms or frames.

12.8 Discussion In their analysis of ethnic profiling by the Dutch Police, several authors have presented a certain interpretation of “stop and search” by the police (Van der Leun & Van der Woude, 2011; Van der Leun et  al., 2013; Mutsaers, 2015). They assume that, over the past years, the Dutch police have used “stop and search” more often. In their view, three developments have contributed to the increasing use of “stop and search”: a shift to a more preventative criminal justice system; the stronger dependence of police work on new data infrastructures and on intelligence-led policing models; and a greater scope for discretion for police officers. Each of these developments raises important questions. The interpretation of “stop and search” as resulting from these three developments is highly questionable. First, many studies have shown that most police work in the Netherlands, especially at the local level, is predominantly reactive, has a strong focus on incidents and is hardly preventive (Terpstra, 2021). Secondly, the impact of intelligence-led policing or predictive

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policing models on daily police work at the street-level is not as large as these authors seem to assume (cf. Landman & Kleijer-Kool, 2016). Finally, there are no indications of a general increase in the discretion of Dutch police officers. On the contrary, it has often been suggested that, as a consequence of new managerial measures, the professional autonomy of many police officers has often become smaller (Terpstra & Trommel, 2009). For these reasons, we would like to suggest an alternative interpretation of the current “stop and search” practices of the Dutch police. First, we assume that, in the past, Dutch police officers were also involved in activities that were more or less comparable to the current practices of “stop and search”. The main difference is that these activities were often part of the informal culture and practices of police officers in their daily work. Nowadays, these activities are often regulated by (more) rules and procedures. This process of juridification (Blichner & Molander, 2008; Magnussen & Nilssen, 2013) was motivated by the wish to have better control over police work and by the view that certain police practices and ways in which citizens have been treated by the police are now (more strongly) defined as unacceptable. This is what happened with the introduction of the administrative restraint, the preventive search and, to a certain degree, also with the identification check. A stronger juridification may also be the consequence of a bottom-up trajectory asking for better control of police behaviour and stronger protection of citizens’ rights. This implies that “stop and search” in the Netherlands (and its potential negative side-effects, such as ethnic profiling or discrimination) should not primarily be seen as resulting from a ‘preventive turn’ (Peeters, 2013) in the criminal justice system and from a stronger reliance on intelligence-­led policing models, but as the outcome of processes of juridification. The shift to a more preventative system of criminal justice (including the police) may, to a certain extent, have happened at the legal level, but its impact on street-level police work is too limited to expect that this may have changed police practices. Of course, this interpretation of “stop and search” raises new questions. One of them is whether this interpretation will also be helpful in understanding the policies and practices of “stop and search” in other jurisdictions.

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References Aalberts, M. M. J., & Kamminga, E. M. (1983). Politie en allochtonen. Verslag van een onderzoek naar de relatie tussen gemeentepolitie en allochtonen in Nederland. Staatsuitgeverij. Andriessen, I., et al. (2014). Ervaren discriminatie in Nederland. SCP. Andriessen, I., et al. (2020). Ervaren discriminatie in Nederland II. SCP. Auditteam Voetbalvandalisme. (2005). Een wissel met grote gevolgen. Audit Feyenoord-Ajax d.d. 17 April 2005 (p. 2005). Auditteam. Blichner, L. C., & Molander, A. (2008). Mapping juridification. European Law Journal, 14(1), 36–54. Böcker, A. (2002). Identificatieplicht: oplossing of oorzaak van problemen? GNI. Bovenkerk, F. (Ed.). (1978). Omdat zij anders zijn: Patronen van rasdiscriminatie in Nederland. Boom. Bovenkerk, F. (2014). Etnisch profileren. De Gids, 177(7) Accessed from July 14, 2020, from https://www.de-­gids.nl/artikelen/etnisch-­profileren Bradford, B. (2017). Stop and search and police legitimacy. Routledge. Bureau Jansen & Jansen. (2009). Identificatieplicht vooral ingezet als controlemiddel. Accessed July 14, 2020, from https://www.burojansen.nl/identificatieplicht/identificatieplicht-­vooral-­ingezet-­als-­controlemiddel/ Çankaya, S. (2011). Buiten veiliger dan binnen: in-en uitsluiting van etnische minderheden binnen de politieorganisatie. Eburon. Çankaya, S. (2012). De controle van marsmannetjes en ander schorriemorrie. Boom Lemma. De Jong, M. A. D. W. (2003). Bestuurlijke ophouding; lelijk eendje voor het leven. NJCM-Bulletin, 28(8), 962–978. De Jong, M. A.W. D. (2014). Lokale ordehandhaving. In F. C. M. A. Michiels & E.  R. Muller (red.). Handhaving. Bestuurlijk handhaven in Nederland (pp. 377–422). Kluwer. De Jong, M. A. W. D., et al. (2017). Orde in de openbare orde. Een onderzoek naar de verbetering van de toepasbaarheid en inzichtelijkheid van het openbare-­ orderecht. Wolters Kluwer. Dekkers, T., van der Leun, J., & van der Woude, M. (2015). Driving while black. Ethnic profiling en interne diversiteit bij de politie. Cahiers Politiestudies, 35(2015–2), 109–128. Everwijn, H., Jongebreur, W., & Lolkema, P. (2009). Het functioneren van de WUID in de praktijk. Evaluatie van de Wet op de uitgebreide identificatieplicht. Significant.

12  The Politics of “Stop & Search” in the Netherlands: A Process… 

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Kingdon, J. W. (1984). Agendas, alternatives, and public policies. Little, Brown. Kuppens, J., Bremmers, B., Ammerlaan, K., & Van den Brink, E. (2011a). Naar eigen inzicht? Een onderzoek naar beoordelingsruimte van en grenzen aan de identiteitscontrole. P&W. Kuppens, J., Bremmers, B., Van den Brink, E., Ammerlaan, K., & Ferwerda, H. B. (2011b). Onder het Oppervlak. Een onderzoek naar ontwikkelingen en (a)select optreden rond preventief fouilleren. P&W. Landman, W., & Kleijer-Kool, L. (2016). Boeven vangen: Een onderzoek naar proactief politieoptreden. P&W. Landman, W., & Sollie, H. (2018). Tegengaan van etnisch profileren. Een internationale literatuurstudie naar effecten van interventies. P&W. Luning, M. (1976). Politie en Surinamers: een attitude-onderzoek bij de Amsterdamse geüniformeerde politie in 1974 en 1975. Afdeling Culturele Anthropologie, Universiteit van Amsterdam. Magnussen, A. M., & Nilssen, E. (2013). Juridification and the construction of social citizenship. Journal of Law and Society, 40(2), 228–248. Meldpunt Misbruik Identificatieplicht. (2014). Geschiedenis van de identificatieplicht in Nederland. Accessed July 14, 2020, from https://www.id-­nee.nl/ geschiedenis-­van-­de-­identificatieplich.html Mutsaers, P. (2015). A public anthropology of policing: Law enforcement and migrants in the Netherlands. Tilburg University. Peeters, R. (2013). The preventive gaze. How prevention transforms our understanding of the state. Eleven. Pro Facto. (2016). Het stopformulier. Verkenning van de werking van de registratie van staandehoudingen. Pro Facto. Rogier, L. J. J., Hartmann, A. R., & Mein, A. G. (2004). Bestuurlijke ophouding in het buitenland. Nederlands Juristenblad, 79(21), 1082–1083. Salet, R. (2009). Preventief fouilleren als praktijk. Van proefballon tot symbolische maatregel. Nederlands Juristenblad, 84(27), 1724–1728. Schreuders, M. M., Huls, F. W. M., Garnier, W. K., & Swierstra, K. E. (2000). Criminaliteit en rechtshandhaving 1999. In Ontwikkelingen en samenhangen. WODC. Schuilenburg, M. (2017). The securitization of society: Crime, risk, and social order. NYU Press. Svensson, J. S. (2015). Ongelijke behandeling en de politiekabouters. Cahiers Politiestudies, 35(2015–2), 93–108. Terpstra, J. (2010). Het veiligheidscomplex, ontwikkelingen, strategieën en verantwoordelijkheden in de veiligheidszorg. Boom Juridische uitgevers.

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Terpstra, J. (2021). Local policing in a nationalized police force: a study on the local teams of the Netherlands’ national force. Policing: A Journal of Policy and Practice, 15(1), 251–262. Terpstra, J., & Trommel, W. (2009). Police, managerialization and presentational strategies. Policing: An International Journal of Police Strategies & Management, 32(1), 128–143. Terpstra, J., & van der Vijver, K. (2006). The Police, Changing Security Arrangements and Late Modernity: The Case of The Netherlands. German Policy Studies, 3(1), 80–111. Van der Leun, J., van der Woude, M., Leupen, A., & Blokland, A. (2013). Country profile: The Netherlands-an exploratory quantitative and qualitative research into perceptions on policing & ethnic profiling. Available at SSRN 2358040. Van der Leun, J. P., & Van der Woude, M. A. (2011). Ethnic profiling in the Netherlands? A reflection on expanding preventive powers, ethnic profiling and a changing social and political context. Policing and Society, 21(4), 444–455. Van der Leun, J.  P., Van der Woude, M.  A. H., Vijverberg, R.  D., Vrijhoef, R. P. M., & Leupen, A. J. (2014). Etnisch profileren in Den Haag? Een verkennend onderzoek naar beslissingen en opvattingen op straat. Boom Lemma. Van der Torre, E. J., & Ferwerda, H. B. (2005). Preventief fouilleren, Een analyse van het proces en de externe effecten in tien gemeenten. P&W. Wetenschappelijke Raad voor Regeringsbeleid. (1979). Ethnic minorities. WRR. Wierenga, A. J., Post, C., & Koornstra, J. (2016). Naar handhaafbare noodbevelen en noodverordeningen: Een analyse van het gemeentelijk noodrecht. P&W. Wijnberg, M. (Ed.). (2006). Zwartboek 2005, één jaar wet op de uitgebreide identificatieplicht. Meldpunt Misbruik Identificatieplicht.

13 Police Stop and Search Practices in Austria Hannah Reiter

Police identity checks and stops are still largely unresearched in the Austrian context. Some legal scholars and other social science experts criticise exactly this problem—a lack of data leads to a lack of scrutiny. This chapter nevertheless tries to present the issue of stop and search practices in Austria as comprehensively as possible. After a brief discussion of the legal framework, I will examine stakeholder criticism based on available data and research on police stop and search practices in Austria and in international comparison, where the focus often revolves around the issues of ethnic profiling in stop and search practices. I will then highlight individual reports of police misconduct that have been discussed in the media, revealing not only issues around ethnic profiling but also highlighting the difficulties of making complaints and of access to redress for police misconduct. Reactions to and statements from law enforcement officials on their practices and their role in the government’s

H. Reiter (*) Vienna Centre for Societal Security, Vicesse, Vienna, Austria e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 J. de Maillard et al. (eds.), The Politicization of Police Stops in Europe, Palgrave’s Critical Policing Studies, https://doi.org/10.1007/978-3-031-35125-9_13

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management of the ongoing Covid-19 health crisis will then be discussed before the chapter will conclude by asking why there have only been brief public debates and, consequently, only meagre efforts at change.

13.1 The Legal Framework of Police Stop and Search in Austria In Austrian law and police practice, there is no literal translation of police stop and search practices, as for example in England and Wales. Identity verification is usually, but not exclusively, carried out by police officers of the Criminal Investigation Department. Carrying out identity checks is permitted if it is probable that the person concerned was involved in a criminal offence, was a witness to a criminal offence, or can otherwise contribute to the investigation of a criminal offence (§35 SPG).1 As with most official acts, the principle of proportionality should be applied. If officers of the Criminal Investigation Department ask a person to provide personal data, that person is obliged to cooperate (See also §118 StPO). However, the Criminal Investigation Department must inform them—at their request—why it is necessary to establish their identity. If they refuse to cooperate, the Criminal Investigation Department may conduct a search of their person. However, the response of the Criminal Investigation Department must always be appropriate and in proportion to the crime to be investigated. According to the principle of proportionality of § 29 SPG, the powers are to be applied in such a way that, among several target-­oriented powers, they burden the persons concerned the least. Furthermore, there are legal bases for identity checks in the field of travel (railway stations, trains, airports, etc.), if it can be assumed that persons concerned have crossed or will cross the state border in the course of a continuous journey, and also if persons concerned are encountered along an international route in circumstances that are typically associated  The SPG (Police Security Act) provides the legal basis for the security authorities and their organs, that is, the police, and exists since 1993. It was fundamentally amended in July 2005 when the Federal Gendarmerie, the Federal Security Guard Corps and the Criminal Investigation Corps were merged into the Federal Police, and in 2012 when the security authorities were restructured. 1

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with cross-border crimes. Being controlled solely on the basis of race or ethnicity is not allowed. Special laws apply for those who do not carry Austrian citizenship. Austrian citizens are not obliged to carry an identity document (except in cases where the identity document serves another purpose, e.g., a driving licence when driving a car). Personal data provided by citizens can be checked (via radio or at the police station) against the central register of residents. According to §32 Fremdenpolizeigesetz (“immigration authorities’ act”), “foreigners” are obliged to carry their travel documents with them. Alternatively, one can keep the travel document at such a distance from their person that it is possible to be accessed within an hour (accompanied by a police officer). There are also passages in the immigration authorities’ act that stipulate that an identity check may be carried out if there is reasonable suspicion that a person is staying in Austria without a valid residence permit. This circumstance potentially allows for the practice of racist identity checks. Given the circumstances, police officers are also required to provide their personal data. According to § 9 SPG, police officers are obliged to disclose their service number upon request, in order for the affected person to know who they spoke to during an identity check, but only if this does not jeopardise the fulfilment of the task/official act. However, as a rule, police officers do not have to give their name. It is sufficient to issue a card featuring the service number, the name of the police department and its telephone number. The existing legal bases on security police measures must contribute to the prevention of discrimination. In addition to taking into account the general requirements, such as the aforementioned principle of proportionality or the ultima ratio principle, the Federal Police must always take into account fundamental rights relevant to their work in their decisions. This is because the work of public security authorities is subject to close tension between the protection of fundamental rights and encroachments on such legal positions. In two Austrian states, the local provincial police directorate have created special units which are not bound by state borders—this system is in the process of being rolled out in every Austrian state (bmi.gv.at, 2021a). This special “on-call unit” (“Bereitschaftseinheit”) was established in

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November 2012, and during a span of 28 months has reportedly carried out more than 150,000 ID checks (APA, 2015a). Around 60 police officers form the permanent team of the on-call unit, patrolling mainly public transport and performing on-call duties. In addition, about 150 police officers are on duty at six-month interval rotas (polizeikarriere.gv.at). Of course, these figures alone do not allow any conclusions to be drawn about police practice, especially since these are the only data available publicly and therefore cannot be compared to other data (e.g., time trends). A more thorough documentation of police practices and their regular publication would be a first step that could facilitate research on the issue of stop and search practices. Moreover, this could also be used in policy debates (see later in the text). Irrespective of these legal provisions, police in Austria are often criticised by scholars and activists for their supposed illegal stop and search practice. These accusations often bear the additional weight of alleged racist or xenophobic patterns resulting from police actions.

13.2 Police Stops in Austria and in International Comparison: Racialised Problems, Ethnic Profiling and Limited Complaint Mechanisms Police in Austria are not allowed to stop people and carry out identity checks without reason, yet issues arise in the form of (potentially) unlawful police stops and identity checks. This practice is a topic of discussion among many civil rights groups, scholars, as well as affected individuals. In most cases, these discussions go hand in hand with issues of (institutional) racism and xenophobia. For example, in its first report on Austria in 1999, the European Commission Against Racism and Intolerance (ECRI, 1999) found a lack of understanding of ethnic and cultural differences, especially with regard to Roma people, resulting in police violence and misconduct. Recommendations for further training on the subject of dealing with immigrants and people of differing ethnic backgrounds were made.

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To this day there are reports of racially biased practices by the police, especially stop and search practices. There have, as of yet, been no comprehensive academic studies on the topic or any statistics provided by the Federal Ministry of the Interior or other sources. Research is further hindered by the fact that the police do not record all stops and ID checks carried out with sufficient information, such as ethnic background. Sources that can be found are mainly newspaper articles on (first-hand) witnesses and their reports (e.g., T. Huey, vice.com, 2015). The European Union Agency for Fundamental Rights’ (FRA) second large-scale EU-wide survey on migrants and minorities (EU-MIDIS II, fra.europa.eu) published in 2018 finds the situation in Austria to be quite serious: 63% of Sub-Saharan African respondents who were stopped by the police in the 12 months before the survey believed the last stop they experienced was racially motivated—a figure only topped by Italy (70%). In both the previous 5 years and in the previous 12 months before the survey, respondents were stopped at the highest rates in Austria (5 years: 66%, 12 months: 49%). Respondents who were stopped also very often reported disrespectful treatment by the respective police officers (29%). A recent paper (European Union Agency for Fundamental Rights [FRA], 2021) presents selected data from the FRA’s Fundamental Rights Survey (“FRS”) and compares the results for the general population with those for people with an ethnic minority or migrant background. The latter are based on the FRA’s second survey on minorities and discrimination in the European Union (“EU-MIDIS II”) and another survey, the Roma and Travellers Survey 2019 (“RTS”). At the EU aggregate level, it can be seen that police stops more often affect certain groups of people. These are primarily men, young people, as well as people who self-­identify as belonging to an ethnic minority, who are Muslim, or who are not heterosexual. For the general population, most police stops in Austria happen while driving, cycling or using other means of transport (87%). Only a very low number of checks (3%) happen while walking. For people of sub-Saharan African descent, these figures are virtually reversed, with 72% being stopped while travelling on foot. In this context, the extremely low values in surveys about trust in the Austrian police also have to be considered. Austrian respondents of African descent seem to have the lowest reported trust in the police of the

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12 surveyed EU member countries (European Union Agency for Fundamental Rights (FRA), 2018). Although the second generation of Turkish immigrants has more confidence in the police and the rule of law than their parents (Brickner, 2017), the overall negative outlook of people with immigrant background and people of colour on the police in Austria is undeniable. This fact is made even more pronounced when taking into account that various surveys repeatedly come to the conclusion that the trust of the overall population in the police in Austria is generally very high (Die Presse, 2019; bmi.gv.at, 2020; SIAK, 2020). In a survey which examined trust in 31 institutions, the police came out on top, ranking even higher in trust than the president or the constitutional court (Die Presse, 2019). In its sixth report on Austria, the Council of Europe’s Commission against Racism and Intolerance (ECRI) praised some of the actions taken by the authorities on certain fronts, for example the community policing project “Gemeinsam Sicher (Safe Together)” (ECRI Report on Austria, 2020: 24). Yet problems of racial and ethnic profiling remain (ECRI Report on Austria, 2020). The ECRI further found that, although racial profiling is prohibited by Austrian law, the practice seems to be commonplace for police. However, to this day, there are only two judgements on racial profiling in Austria. In 2003, the Constitutional Court recognised the connection between an identification pursuant to §35 SPG and the nationality or skin colour of a complainant and thus confirmed the accusation that a racist official act had taken place.2 However, the most recent ruling of the VwGH (Supreme Administrative Court) from 2012, in which ethnic profiling was brought forward by a complainant, did not follow this allegation.3 In the proceedings, the allegation that the complainant had been subjected to checks on the basis of their ethnic origin was refuted by the fact that police action had been taken in the course of compensatory measures under the Schengen Borders Code and that random checks had been carried out on the basis of a current situation assessment. The ECRI report (2020) further critiqued the lack of statistics on complaints about racial profiling and recommended further police  VfGH B1128/02 VfSlg 17017 4 ff.  VwGH 2012/01/0149.

2 3

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training on these issues, citing two high-profile media cases as proof of the continuing practice of racial and ethnic profiling by Austrian police. Complaints (“Maßnahmenbeschwerden”)4 are an Austrian legal remedy separate to charges/police reports and allow people to claim their right to bring charges or complaints against the Austrian police on the bases of unlawfully carried out identity checks. However, the effectiveness of these complaints in Austria also appears to be limited. According to a study carried out by the Austrian Centre for Law Enforcement Sciences (ALES), out of 1518 cases examined of alleged mistreatment by police, the public prosecutor’s office submitted criminal complaints before the courts in only seven cases (ALES, 2018). International and national organisations, as well as experts in the field of human rights, criticise the current system of internal police investigation of allegations of abuse (Exenberger, 2020). They see it as a major reason why allegations against police officers most often remain inconsequential. In cases of alleged abuse by a police officer, the police essentially investigate itself. This leads to conflicts of interest and a lack of impartiality on the part of the officers involved in investigations against colleagues. The European Code of Police Ethics states: “Public authorities shall ensure effective and impartial procedures for complaints against the police. […] ‘Police investigating the police’ is an issue which generally raises doubts as to impartiality. States must therefore provide systems which are not only impartial but also seen to be impartial, to obtain public confidence” (European Code of Police Ethics, p. 69). The Austrian Volksanwaltschaft (Ombudsman Board) has the potential power to investigate cases of racial and ethnic profiling, yet the implementation and processing of these cases are criticised by the ECRI (2020). The legal protection is perceived to be inadequate (Exenberger, 2020: 241): it has only limited investigative possibilities and its mandate is limited. The Ombudsman Board investigates individual complaints about allegations of mistreatment and occasionally also examines cases ex officio. However,  “Maßnahmenbeschwerden” are a legal remedy created in Austrian administrative law concerning complaints by persons who claim that their rights have been violated in the course of the exercise of direct command and coercive power by administrative authorities (Art. 130 B-VG). There are no direct legal outcomes of such an action, other than the legal clarification of a certain situation (the authoritative action being rightful or not) and, as such, no fines or remuneration apply. 4

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it is limited in its ability to gather evidence because it does not have enforceable investigative powers. Due to this, the Ombudsman Board also strongly supports an independent body investigating allegations of police violence and misconduct (Exenberger, 2020: 241; see next paragraph). Plümecke, a sociologist with the Swiss “Allianz gegen Racial Profiling” (Alliance against Racial Profiling, stop-racial-profiling.ch), recommends a system similar to that of the Metropolitan Police in London (and forces across England and Wales). Those who are checked should receive a written confirmation of the official act at the end, while the police need to document and justify each check, including information on the civilian’s ethnic group (Mackinger, 2018). This proposal is, to some extent, also supported by others (Millner, 2018: 81ff., cf. FRA, 2018: 33). In this context, a further criticism has to be voiced about the lack of collection and publication of statistical data in Austria on complaint procedures against the police. If recording of police stops and checks were implemented, as is done in England and Wales, it would be possible to analyse quotas and subsequently check whether ethnic minorities and/or people with a migrant background were disproportionately and unlawfully affected by measures.

13.3 Individual and Media Cases of Police Stops in Austria: Problematising Potentially Unlawful Police Practices and the Barriers to Complaints of Misconduct The media in Austria play a considerable role in exposing police misconduct and are contributing to the social debate around the practice of police stops. As this text will show, this sometimes puts journalists themselves in the crossfire and at risk of disproportionate police controls. One of these cases involves a potentially unlawful police stop and identity check of a group of Black rap artists in a Viennese park. It attracted attention because videos of the incident were posted on one of the artists’ social media platforms, claiming racial profiling had taken place (Ben Saoud, 2018; kurier.at, 2018a; standard.at, 2018). The civilians involved

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in the identity checks subsequently decided not to take legal action, instead seeking a dialogue with the public to increase awareness of these incidents. One of the affected rappers, T-Ser, further claimed his main interest was to shed light on the reality of life for Black people in Austria. The rapper and his friends also had an appointment with Austria’s SocialDemocratic Party, SPÖ (Matzinger, 2018). However, it is unclear what purpose or outcome this meeting has had. In the following section, I present further exemplary cases regarding police use of force in the context of unlawful stops that bring to light questionable or outright unlawful practices of involved police officers. These examples are by no means to be regarded as exhaustive and are rather intended to illustrate the scope of media reporting in Austria. Not included are further cases of police misconduct in the context of demonstrations—these are sometimes linked to the kettling of protesters but not specifically in the context of police stops.5 An annual event where police checks and actions are repeatedly observed and/or criticised by different stakeholders is the Vienna Academic Ball (“Akademikerball”) and the demonstrations surrounding the event.6 In order to monitor the police in their control of the demonstrators, a team from the Ombudsman’s Office (“Volksanwaltschaft”) has joined the police operation for several years.7 In these investigations, the Ombudsman’s Office found that the police repeatedly failed to observe proportionality in decisions to intervene. For example, the kettling of protesters, where police check identity documentation, sometimes lasted for a number of hours (“Wiener Zeitung”, 2017). Another point of critique comes from the left-wing group, NOWKR.  In 2014, a  An example of this is a case where a police officer was found guilty of abuse of power and false testimony (standard.at, 2021). 6  The “Wiener Akademikerball” is an annual event in the Viennese ball season that is organised by the Freedom Party of Austria (FPÖ). Since 2008, there have been annual demonstrations by various organisations against the ball. The protests are directed, among other things, against hosting it in the Vienna Hofburg. The increased media coverage of the opposition to the ball was triggered by the participation of members of right-wing and extreme right-wing European parties. 7  In principle, the Ombudsman’s Office has been established as a parliamentary commissioner for the control of public administration in Austria. In 2012, it received a constitutional mandate to protect and promote human rights (volksanwaltschaft.gv.at, 2020 (2)). 5

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short-term ban (for the time of the ball and subsequent demonstrations) on covering one’s facial features in a certain area in Vienna made random police ID checks possible—this was likened to a police state (www.wienerzeitung.at, 2014). In 2010, two Black men were questioned by police after being subjected to racist verbal abuse by a passenger on the local public transport system in Vienna. One of them later brought suit against the police for alleged racism, though he lost because the court doubted his credibility (APA, 2011). The Nigerian-born man claimed that he had been treated “like a criminal” by the police from the beginning. The officer who took him to the police station did not accept his Austrian driving licence as proof of his identity, as he allegedly stated that it was “not an identity card for black people, because Austria does not have a border with Africa” (APA, 2011). This blatant display of racism has had no consequences for the police officer involved—the court doubted the witness’ credibility. A further case covered in the media is of a male student who reported being abused by police officers. He was ID checked by police in Vienna after commenting on police officers interviewing a driver. While reportedly putting up no resistance himself, the man was pushed to the ground, led away, dragged by his hair, beaten several times in the face and then locked in a cell for seven hours without being allowed to contact a lawyer. He later suffered a breakdown and was taken to hospital (APA, 2015b). The administrative court found the arrest to be unlawful. Later, the police officers involved were put under internal investigation. There are a number of cases of (alleged) police misconduct or violence resulting from police stops. These cases are often closely related to critiques from national as well as international NGOs (ZARA,8 FRA, Amnesty International) of the police for being racially biased, a substantial point of discussion in the public debate surrounding police stops. In a number of these incidents, people affected also brought forward complaints of misconduct against the officers involved, a course of action that notably has a limited likelihood of success.  ZARA—“Zivilcourage und Anti-Rassismus-Arbeit”—was founded in 1999 with the aim of promoting moral courage and a racism-free society in Austria and to combat all forms of racism. Since 2017, ZARA has also been operating the counselling centre #GegenHassimNetz (www.zara.or. at, 2020). 8

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Regarding the possibility to issue complaints against unlawful police stops or police misconduct in general, a recent case that found in favour of a journalist against police officers who carried out an unlawful identity check and search of the person in Vienna in 2019 (bonvalot.net, 2020). The police officers had forced the journalist to identify himself by implying an alleged “smell of narcotics”. The court stated that the reasons given by the police were “not credible”. The verdict was made possible by video evidence collected by another journalist at the scene. According to Bonvalot (bonvalot.net, 2018), a large proportion of “Maßnahmenbeschwerden” (complaints) are actually found in favour of the accuser and respectively against police actions. A Viennese attorney at law even specialises in bringing forward these complaints against police actions. According to him, these complaints can be framed as constructive because they do not end in convictions, but can, in the best case, lead to a learning process within the police (profil.at, 2020). The question is, if these kinds of verdict will serve as an incentive to proactively alter police officers’ behaviour when dealing with questions of police stops— not only on an individual level, but also throughout the organisation, that is, resulting in raising awareness during training? Following Lahner, the fact that Vienna police work “much better today than 30 years ago” is also due to the fact that “people have complained about injustices” (profil.at, 2020). Yet the sole power of bringing about individual complaints against police misconduct or unlawful stop and search practices remains questionable. It can seem like the proverbial drop in the ocean.

13.4 Police Reactions and Political Measures: Mis-identifying the Problem? The current Austrian government agenda includes the commitment to “ensure consistent investigation of allegations of abuse against police officers” (Regierungsprogramm, 2020, p.  153), which an Austrian law researcher interpreted as an admission that such allegations have not been consistently investigated so far (Exenberger, 2020). The Austrian Ministry of the Interior is currently planning on introducing an independent body

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to investigate police violence and misconduct (standard.at). A certain degree of public control over the investigations is to be introduced, which is one reason why Amnesty International has welcomed these developments. Procedures should be open and transparent. This should, above all, counteract the threat of permanent impunity for police violence and thus the tacit acceptance of this practice. The presentation and implementation of these measures were originally planned for the autumn of 2020, yet, most probably due to the ongoing Covid-19 health crisis, it has been indefinitely delayed. Furthermore, an independent documentation centre was established at the end of March 2021, where affected persons can report all cases of police violence as well as unlawful(ly carried out) official acts (antirepressionsbuero.at). This institution was established in lieu of the promised independent body responsible for reports of police misconduct. While there is thus a political willingness to address some allegations of police misconduct, the reactions of police and political actors are very limited and often fail to acknowledge some of the more fundamental problems. For example, according to NGOs and other stakeholders, there appears to be a general issue around racism within Austrian police (European Union Agency for Fundamental Rights FRA, 2018; Millner, 2018). It is reported by the head of the ZARA counselling centre that, time and again, the police do not record possible racist motives during questioning or do not take up charges due to lack of witnesses. The Vienna police’s concept of racism was seen as being too narrow. “If the suspects do not belong to a right-wing extremist group, racism is usually no longer an issue in investigations” (APA, 2015c). According to a report by Amnesty International (2009), this failure to address racially motivated crimes was “widely acknowledged by NGOs, lawyers, criminal justice experts and even police officers and prosecutors” (Amnesty International, 2009: 40). In this regard, police officers’ underdeveloped sensitivity towards racially motivated offences as well as a non-existent system to ensure recording of racially motivated crimes was mentioned. Such a system to record so-called hate crime exists now (since November 2020)—it was developed in cooperation with a social research facility (bmi.gv.at, 2021b). This policy change has implemented a past

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recommendation made by NGOs (Amnesty International, 2009: 42), an example of problems and politics streams coming together to create new policy. Policymakers and the Austrian police don’t seem to acknowledge this lack of awareness and lack of problematization of racism amongst the Austrian police, which also shows in police practice. Police are reported to regularly check and control African restaurants and bars while the same cannot be said for their “native” Austrian counterparts. The police justify their actions by stating that, in the course of these checks, the immigration status of an alleged guest of the restaurant can also be ascertained. While a spokesperson for Vienna police stated that no one is checked on the basis of skin colour alone, he further argued that “every foreigner has the duty to identify himself ”, while it is assumed that these foreigners are “increasingly” found in these bars and restaurants (Akinyosoye, 2011). One can therefore assume either a certain carelessness on behalf of the police in this matter or that the police are not yet sufficiently sensitised to the issue. During a routine police operation in 2012 that was filmed by the Austrian national television broadcasting service (ORF), more than 160 people were ID checked in and around underground stations in Vienna. What the ORF captured on film was later broadcast and reported with the notion that the police had mainly paid attention to people with a “foreign appearance”, as no white passengers were checked. A spokesperson for the police reacted with an immediate denial. According to her, there must have been a misunderstanding in the editorial department, as police officers are “definitely [under] no requirements to look out for foreign appearance, migration background or anything like that” (Pollak, 2012). Two Austrian projects were, among other goals, concerned with sensitising police officers towards different expectations and concepts of security and safety (POLIS and PARSIFAL: www.kiras.at, 2020). The projects were carried out in cooperation with the Federal Ministry of the Interior in the years 2011–2013 and 2013–2015, POLIS being a follow-up project of PARSIFAL. However, it remains unclear if and how the findings from these projects and their implications have actually affected police recruitment, training and conduct. Furthermore, there is no public

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record of an evaluation of these programmes, which have primarily been designed to introduce a form of community policing within the Austrian police force. Due to internal political disputes, a new government was elected in 2017—under this right-wing government from 2017, Austria, in the form of the then-Minister of the Interior Herbert Kickl, took rigorous action against EU citizens as well as third-country nationals without a right of residence. According to NGOs9 this led to an increase in the number of random police checks carried out. The approach was criticised by many organisations in the field of social work. “The homeless and beggars are especially visible. They are constantly controlled by the police” (Rosner, 2019:10). It has also been argued that there is sometimes a de facto shift in the burden of proof concerning persons allegedly illegally staying in the country—in case of doubt, people will be deported. During the process of checks which focuses specifically on immigration, the police are assisted by the Austrian military (Rauth, 2017). The police partially admit that there are issues that need addressing in the area of police stops. The then spokesperson of the Ministry of the Interior, Christoph Pölzl, admitted in 2018 that “a certain need for action can be derived from [the previously mentioned study of the Fundamental Rights Agency]” (Matzinger, 2018). The Vienna Police Dialogue Forum10 has set up an expert panel on racial profiling, whose proposals for improvement were being examined—the (proposed) outcomes of such a group, however, are often not clearly communicated to the public. The panel has been working on a recommendation paper for the Vienna Police on the topic of “training/service education, legal bases, wording/ language in directives, identification and evidence-based policing” (POLIZEI.MACHT.MENSCHEN.RECHTE, 2019, p.39).

 Police have failed to comment as they cannot “reliably answer” (Rosner, 2019:10) the question of how often people are stopped and ID checked. 10  The forum was established in 2016—the aim is to strengthen the dialogue between the police and civil society and to enable citizens to participate in shaping human rights issues in policing (LPD Wien, 2018, twitter.com) 9

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In a different context, namely in relation to the implementation of a weapons-free zone11 in Innsbruck, a police spokesperson clarified that profiling is not enough to justify police stops because a full stop and search would constitute an encroachment of fundamental rights. Police do still require concrete indications of a threat in order to carry out these stops (“Kurier”, 2018b). This indicates that the police are fully aware of the legal context of these stops and willing to publicly communicate this awareness. Yet self-criticism does not come naturally for Austrian police: racial profiling “is, to a high degree, a subjective perception of the persons concerned”, as the press spokeswoman of Vienna Police stated in 2018 (Mackinger, 2018, p. 6). Mackinger further criticises the fact that there are no conclusive statistics on police stops and controls available to draw data-based conclusions on the topic. Police state they are working intensively and constantly on raising the awareness of officers—presumably through training and/or workshops. A decree of the Federal Ministry of the Interior stipulates that officers must refrain from anything that “could give the impression of bias or be perceived as discrimination” (Mackinger, 2018, p. 6).12 In recent years, the Austrian police and its (political) leadership, in the form of the Ministry of Interior, have committed themselves to accountability to the general public (Sonderegger, 2019). However, as Sonderegger also remarks, this commitment is no guarantee of the development of a corresponding organisational culture. In 2012, then Minister of the Interior Mikl-Leitner famously described the federal police as Austria’s “largest human rights organisation” (ots.at, 2012). As welcome as this claim is, Austria’s domestic security authorities are still far from fulfilling it. Although there has been some (slow) progress, a big step has yet to be taken: the rapid and sustainable elimination of arbitrary racist police practices.

 The weapons ban was introduced on December 1, 2018—a few days after the murder of a man at the area in question. It led to a number of targeted police actions and has recently been prolonged (Tiroler Tageszeitung, 2022). 12  § 31(2)(5) SPG and the associated Section 5(1) of the Directive Ordinance. 11

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13.5 Excursus: Recent Discussion on Police Stops in Light of the Covid-19 Health Crisis In general, trust in the police seems not to have been affected significantly by the Covid-19 crisis of 2020/21. The behaviour of the police from mid-­ March to 1 May 2020 was rated as “appropriate” or “somewhat appropriate in the situation” by 78.2% of respondents to a survey evaluated by the Austrian Ministry of Interior. A total of 15.3% felt that the police were “(rather) overreacting in the situation”. The conduct of the police was assessed by 80.9% as “professional” or “somewhat professional”, while 11.3% of respondents found them to be “somewhat unprofessional” or “unprofessional” (bmi.gv.at, 2020). What has to be kept in mind, though, is that the quoted study was evaluated, processed and the results presented by the Ministry of the Interior themselves and not by an independent research institute. Austrian police have taken the newly introduced laws and regulations concerning the prevention of the spread of Covid-19 very seriously, at least at the onset of the pandemic in Austria (March 2020). Compliance with the new rules was checked in police spot raids (orf.at, 2020). Over the Easter weekend (10th–13th of April 2020) alone, 2000 charges and 380 administrative fines were issued in relation to non-compliance with the so-called Corona Measures (derstandard.at, 2020a). After the Austrian Constitutional Court had annulled some points of the Corona regulations in July 2020, the Austrian Ombudsman Board have given assurances of support for any claims and complaints citizens might make (volksanwaltschaft.gv.at, 2020). An Ombudsman further stated that “[m]any people have paid fines although they have not behaved unlawfully” (ibid.). The situation for police officers was highly stressful, especially at the beginning of the pandemic. In May 2020, another Ombudsman criticised the instructions for police officers on the street, which were not clearly set out (derstandard.at, 2020b). Police officers often allegedly did not know what they were or were not allowed to do. An example can be seen in the case of a woman from Styria, where the police had carried out an illegal search of her shopping bag after she had

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left a grocery store (derstandard.at, 2020b). Individual case reports tell of further, seemingly absurd, cases in which penalties were issued by the police (addendum.org, 2020). The Austrian police were also a point of (first) contact for many people regarding information on current legal regulations and policies. A currently ongoing project (POLIPA, vicesse. eu) analyses the use of police in the governmental COVID-19 response and promises to provide insights into the practices of pandemic response. In this context, the willingness of the police to allow research into their practices needs to be pointed out—a possible sign of a shift in police policy and practice relating to “outsider” research.

13.6 Concluding Remarks Police stops, in the form of ID checks, are subject to clear legal regulations in Austria. However, the lack of research and data in the area makes it difficult to form a comprehensible picture of police practices and public (re)actions. What can be noted, however, is the apparent criticism of the police by many civil society stakeholders. They criticise not only a lack of understanding of ethnic or cultural differences, but also plain racist behaviour by police officers reported by people affected. These allegations have long been unanimously refuted by the police—an apparent sign of a lack of a certain culture of constructive criticism within the police service. However, in recent years, the police have become more receptive of these types of criticism, implementing programmes (e.g., “Safe Together”) and awareness training regarding racial profiling. Some gentle progress can be observed. Nonetheless, collection of data and independent academic studies on the practice and experience of police stops in Austria would give a more objective basis to the currently rather hardened and unfruitful debate. Even so, this would require a certain openness on the part of the police to share their practices and undergo (external) investigative studies. It remains unclear how the police would deal with any possible results, yet any research and objective look at police practices regarding stop and search in Austria can be viewed as an improvement on the current situation. In any case, this could contribute to an improvement in the debate on police stops in Austria and possibly

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lead to consistent and sustained action in the form of change in policies and practices. In Austria, there is arguably still work to be done on raising awareness about racism, what constitutes racism and where racism and discrimination are institutionally, if unconsciously, embedded. There is a certain need for the issue of ethnic profiling to be discussed publicly and a need to clearly articulate what distinguishes legitimate profiling from discriminatory profiling in police practice. According to Millner (2018: 104) instructions for police officers are kept too general, and if officers are given a lot of leeway to make decisions there is a greater risk of focusing on ethnic characteristics when deciding to take police action. As stated by Millner (2018), the Austrian judiciary and legislation seem to lag behind international case law and legislation: “It is doubtful whether the Austrian provisions meet the requirements of European law and provide for sufficient restrictions on [measures such as police stops] in the sense of European case law” (Millner, 2018: 106). What this brief analysis shows is that the perceived problems, with regard to police stops in Austria, rarely feature in or inform politics. Policies are rather informed by current political trends, as was illustrated with the rise to power of the right-wing party FPÖ in 2017, regardless of any stakeholder criticisms. It seems that, due to multiple factors such as frequent government fluctuations and related changes in policy programmes, a reluctance to admit to any misconduct on the part of the police, as well as other high-priority political challenges (e.g., health and environmental crises), it is hard to sustain advocacy for policy changes. The current situation paints a somewhat unfavourable picture of police stop and search action and related policies in Austria. One can only hope that future reforms will embrace a more open and accountable police culture. However, the implementation of these reforms also seems to require that accountable culture as a pre-requisite.

References §118 Strafprozeßordnung 1975 (StPO). §29 SPG Sicherheitspolizeigesetz, BGBl. Nr. 566/1991.

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§32 Fremdenpolizeigesetz, BGBl. I Nr. 100/2005. §35 SPG Sicherheitspolizeigesetz, BGBl. Nr. 566/1991. Addendum. (2020). Corona-Verbote: Es ist mehr erlaubt, als wir glauben. Accessed January 08, 2021, from https://www.addendum.org/coronavirus/ was-­ist-­erlaubt/ Aden, H. (2017). Anlasslose Personenkontrollen als grund- und menschenrechtliches Problem. Zeitschrift für Menschenrechte, 11(2), 54–65. Akinyosoye, C. (2011). “Schwarze werden mehr unter die Lupe genommen” In “Die Presse”, 19.01.2011, p. 11, Accessed on 10.12.2020. ALES, Studie über den Umgang mit Misshandlungsvorwürfen gegen Exekutivbeamte (2018). Accessed December 14, 2020, from https://www. justiz.gv.at/file/2c94848a66ede49101671cc760ff1142.de.0/ales%20 studie%20endfassung%20nov18.pdf Allianz gegen. Racial Profiling homepage. Available at: stop-racial-profiling.ch, Accessed on 14.12.2020. Amnesty International. (2009). Austria: Victim or suspect – A question of colour: Racial discrimination in the Austrian justice system. Accessed August 30, 2023, from https://www.amnesty.org/en/documents/EUR13/002/ 2009/en/ APA. (2011) APA0381 5 CI 0719, 09.02.2011 “Polizisten von angeblich rassistischer Amtshandlung freigesprochen”, Accessed on 10.12.2020. APA. (2015a). APA0351 5 CI 0181, 05.02.2015, “Bereitschaftseinheit der Wiener Polizei nahm 5.000 Personen fest”, Accessed on 10.12.2020. APA. (2015b). APA0608 5 CI 0215, 03.06.2015, “Misshandlungsvorwürfe  Verwaltungsgericht gab Student recht”, Accessed on 10.12.2020. APA. (2015c). APA0193, 26.08.2015 “Verzerrung der Wirklichkeit 2  - Polizei prägt Kriminalitätsbegriff”, Accessed on 07.12.2020. Ben Saoud, A. (2018). Rapper T-Ser: “Vertraue Gesellschaft tausendmal mehr als der Exekutive”, Accessed December 14, 2020, from https://www.derstandard. at/story/2000089616978/rapper-­t-­ser-­vertraue-­der-­gesellschaft-­tausendmal-­ mehr-­als-­der BMI. (2020). Hohes Vertrauen in die Polizei. Accessed December 18, 2020, from https://www.bmi.gv.at/magazinfiles/2020/09_10/umfrage_bf_20200917.pdf BMI. (2021a) Schnelle Interventionsgruppen und Bereitschaftseinheit in Bundesländern ab Herbst 2021. Accessed on October 21, 2021, from https:// bmi.gv.at/news.aspx?id=64397A507A5943383265303D BMI. (2021b). Hate crime. Accessed on July 12, 2022, from https://bmi.gv.at/ magazin/2021_09_10/Hate_Crime.aspx

308 

H. Reiter

Bonvalot, M. (2018). Ich verklage die österreichische Polizei wegen Ausweiskontrollen. Accessed December 14, 2020, from https://www.vice.com/de/article/ev8ad4/ ich-­verklage-­die-­osterreichische-­polizei-­wegen-­ausweiskontrollen Bonvalot, M. (2020) Journalist gewinnt vor Gericht gegen die Wiener Polizei. Accessed on August 30, 2023, from: https://www.bonvalot.net/journalistgewinnt-vor-gericht-gegen-die-wiener-polizei-782/ Brickner, I. (2017) EU-Studie: Polizei und Afrikaner  – in Österreich keine Erfolgsstory. Accessed December 14, 2020, from https://www.derstandard.at/ story/2000070452245/polizei-­und-­afrikaner-­laut-­eu-­studie-­in-­oesterreich­keine-­erfolgsstory Der Standard. (2018). Nach Rassismus-Vorwurf von Rapper: Politiker widerspricht Polizei. Accessed December 14, 2020, from https://www.derstandard.de/ story/2000089949362/nach-­r assismus-­v orwurf-­v on-­r apper-­p olitiker-­ widerspricht-­polizei Der Standard. (2020a). Corona-Maßnahmen: Ihre Erfahrungen mit der Polizei? Accessed January 08, 2021, from https://www.derstandard.at/story/200011 6740663/corona-­massnahmen-­ihre-­erfahrungen-­mit-­der-­polizei Der Standard. (2020b). Volksanwaltschaft rechnet mit Flut an Corona-Beschwerden. Accessed January 08, 2021, from https://www.derstandard.at/ story/2000117603012/volksanwaltschaft-­rechnet-­m it-­f lut-­a n-­c orona­beschwerden Der Standard. (2021). Prozess gegen zwei Beamte nach Polizeigewalt bei Wiener Klima-Demo. Accessed July 12, 2022, from https://www.derstandard.at/ story/2000129075774/prozess-­gegen-­zwei-­beamte-­nach-­polizeigewalt-­bei-­wiener-­ klima-­demo Die Presse. (2019). Österreicher vertrauen Polizei und Bundespräsident, aber nicht den Medien, 18.10.2019. Accessed December 18, 2020, from https://www. diepresse.com/5708141/osterreicher-­vertrauen-­polizei-­und-­bundesprasident-­ aber-­nicht-­den-­medien ECRI First report on Austria. (1999). Accessed August 30, 2023, from https:// rm.coe.int/first-report-onaustria/16808b5557 ECRI REPORT ON AUSTRIA (sixth monitoring cycle). (2020). Accessed December 14, 2020, from https://rm.coe.int/report-­on-­austria-­ 6th-­monitoring-­cycle-­/16809e826f Exenberger, T. (2020). Außer Kontrolle? Misshandlungsvorwürfe gegen die Polizei: Herausforderungen einer menschenrechtskonformen Umsetzung einer unabhängigen Ermittlungsstelle. Juridikum. Zeitschrift Für Kritik | Recht | Gesellschaft, 2020(2), 237–248.

13  Police Stop and Search Practices in Austria 

309

European Union Agency for Fundamental Rights (FRA). (2018). Being black in the EU. Second European Union Minorities and Discrimination Survey. Accessed December 14, 2020, from https://fra.europa.eu/sites/default/files/ fra_uploads/fra-­2019-­being-­black-­in-­the-­eu-­summary_en.pdf European Union Agency for Fundamental Rights (FRA). (2021). Your rights matter: Police stops, fundamental rights survey. Publications Office. Huey, T. (2015). I Was Detained by Austrian Police Because I'm Black. Accessed December 14, 2020, from https://www.vice.com/da/article/9bzxv5/ austria-­vienna-­stop-­and-­search-­police-­racism-­876 Kurier. (2018a). Rapper T-Ser wegen Hautfarbe aufgehalten? “Das passiert regelmäßig”, 18.10.2018. Accessed December 14, 2020, from https://kurier. at/chronik/wien/rapper-­t-­ser-­zu-­racial-­profiling-­das-­passiert-­regelmaessig/ 400148985 Kurier. (2018b). Waffenkontrolle nur bei Verdacht, 27.11.2018, print, Accessed 07.12.2020. LPD Wien. (2018). “Regionales Dialogforum Wien”. Accessed July 11, 2022, from https://twitter.com/LPDWien/status/974300300197711873 Mackinger, C. (2018). Was haben wir getan? Österreich steht an der Spitze beim Racial Profiling, In “Augustin” Nr. 454 / 2018, p. 6–7, Accessed 07.12.2020. Matzinger, L. (2018). Täterprofil: jung, schwarz, männlich, In “Falter” Nr. 43 / 2018, p. 34. Accessed on 07.12.2020. Millner, C. (2018). Ethnic Profiling im Kontext der Ausübung polizeilicher Befugnisse. Diplomarbeit. ORF. (2020). Planquadrat: Auch Covid-Regeln kontrolliert. Accessed January 08, 2021, from https://wien.orf.at/stories/3077477/ OTS. (2012) “Mikl-Leitner: Sind die größte Menschenrechtsorganisation Österreichs Ausschuss: Menschenrechte im Sicherheitsapparat 13 Jahre nach Omofuma”, Accessed December 10, 2020, from https://www.ots.at/presseaussendung/ OTS_20120620_OTS0270 PARSIFAL Projekt. Accessed December 10, 2020., from https://www.kiras.at/ gefoerderte-­projekte/detail/d/parsifal-­partizipative-­sicherheitsforschung-­ in-­ausbildung-­und-­lehre-­in-­oesterreich POLIPA.  POLICING THE PANDEMIC.  Accessed March 22, 2022., from https://www.vicesse.eu/polipa POLIS Projekt. Accessed December 10, 2020., from https://www.kiras.at/ gefoerderte-­projekte/detail/d/polis/ POLIZEI.MACHT.MENSCHEN.RECHTE, REPORT. (2019). Accessed October 21, 2021, from https://www.bmi.gv.at/408/PMMR/files/PMMR_ Report_V20191017.pdf

310 

H. Reiter

Pollak, A. (2012). Polizeiarbeit hautnah: Rassismus als Leitsystem? In “Der Standard”, 07.08.2012, Accessed 07.12.2020. Profil. Maßnahmenbeschwerden gegen die Polizei: Lob der Beschwerde. Accessed December 14, 2020., from https://www.profil.at/oesterreich/massnahmen beschwerden-­gegen-­die-­polizei-­lob-­der-­beschwerde/400910738 Rauth, H. (2017) “Die Flucht hat viele Identitäten!”, “Kronen Zeitung”, 27.08.2017, print, Accessed on 07.12.2020. Regierungsprogramm 2020–2024, Available at: bundeskanzleramt.gv.at, Accessed on 10.12.2020. Rosner, S. (2019). “Die Grenzen des Grundrechts auf Freizügigkeit” In Wiener Zeitung, 10.05.2019, Accessed on 07.12.2020. SIAK. (2020). Sicherheitsgefühl der Bevölkerung und Bewertung der Polizei während der COVID-19-Krise. Accessed December 18, 2020, from https:// www.bmi.gv.at/Downloads/files/Subjektive_Sicherheitsgefuehl_ COVID_19.pdf Sonderegger, P. (2019). Ein rechenschaftsfreundliches Selbstverständnis für die Polizei. Juridikum. Zeitschrift Für Kritik | Recht | Gesellschaft, 2019(3), 432–437. Tiroler Tageszeitung. Accessed July 18, 2022., from https://www.tt.com/ artikel/30748847/waffenverbotszone-­i n-­i nnsbruck-­a uf-­b ogenmeile­und-­am-­bahnhof-­verlaengert Volksanwaltschaft (1)  ACHITZ: VOLKSANWALTSCHAFT UNTERSTÜTZT BEI BESCHWERDEN WEGEN CORONA-­ STRAFEN. Accessed January 08, 2021., from https://volksanwaltschaft.gv. a t / a r t i k e l / A c h i t z -­Vo l k s a n w a l t s c h a f t -­u n t e r s t u e t z t -­b e i -­B e s c h werden-­wegen-­Corona-­Strafen Volksanwaltschaft (2)  - Präventive Menschenrechtskontrolle. Accessed December 09, 2020., from https://volksanwaltschaft.gv.at/praeventive-­ menschenrechtskontrolle Wiener Zeitung. (2014). Kritik an Polizei, Ballveranstaltern und Aktivisten. Accessed on December 10, 2020, from https://www.wienerzeitung.at/nachrichten/politik/wien/601945-­K ritik-­a n-­Polizei-­Ballveranstaltern-­u nd-­ Aktivisten.html Wiener Zeitung. (2017). Nr.022, Die Kontrolle der Kontrolle, 02.02.2017, print, Accessed on 07.12.2020. ZARA – Zivilcourage und anti-Rassismus Arbeit. Homepage. Accessed December 09, 2020., from www.zara.or.at

14 Regulating Stop-and-Search in England and Wales: Public Controversy as a Catalyst for Control Estelle Marks and Ben Bowling

14.1 Introduction Police stop-and-search practices in England and Wales have been the subject of public controversy for many decades. The journey of stop-and-­ search policy and practice has had many turning points: moments of reform that have restricted or expanded police powers. The most significant turning points have involved wide public engagement, inspired by public controversies related to police practices and crime control. This public engagement has led to mounting pressure on the government— from non-governmental organisations (NGOs), legal challenges and public inquiries—to reform stop-and-search. This chapter focuses on events in the year 2010, a highly significant turning point, to illustrate and explain the dynamics of policy change in this field. We begin by outlining the scope of modern police stop-and-search powers in England and Wales and provide a brief account of their

E. Marks (*) • B. Bowling King’s College London, London, UK e-mail: [email protected]; [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 J. de Maillard et al. (eds.), The Politicization of Police Stops in Europe, Palgrave’s Critical Policing Studies, https://doi.org/10.1007/978-3-031-35125-9_14

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introduction in the 1980s. We discuss the prevailing political landscape around law and order in the 1990s and early 2000s, a period that saw the expansion of police stop-and-search powers in both scope and frequency of use. From here, we look at the public controversies leading up to a significant moment of reform in 2010, the European Court of Human Rights decision in Gillian v UK which held one element of police stop-­ and-­search powers to be incompatible with human rights. Following this decision, and a shift in the political discourse towards a more libertarian approach, the police use of stop-and-search plummeted to its lowest level since 1990. The chapter charts a push-and-pull between authoritarian drives to control crime through more police stop-and-search on the one hand, and on the other, libertarian concerns to protect the public from arbitrary police action and anti-racist drives to improve police and community relations.

14.2 Police Powers to Stop-and-Search in England and Wales There are many legislative provisions that empower English and Welsh police to stop people in public places to question them and search their clothing, vehicle, bags and other personal belongings. The power to conduct a personal search falls into two main categories: those based on ‘reasonable grounds to suspect’ that the person stopped is engaged in criminal activity and ‘suspicionless’ search powers that allow police to stop anyone within an authorised area without individualised suspicion of wrongdoing.

Powers Requiring Reasonable Suspicion Powers to stop-and-search on ‘reasonable grounds’ were introduced in their modern form in the early 1980s by Section 1 of the Police and Criminal Evidence Act 1984 (PACE). This legislation was enacted following the recommendations of the 1978 Royal Commission on Criminal Procedure and in the wake of the 1981 Brixton Riots. The Commission reported in 1981 and recommended national codification of

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stop-and-search powers, which were previously localised, fragmented and controversial (Royal Commission on Criminal Procedure, 1981, p. 544). These powers, popularly dubbed ‘sus’ laws (from ‘suspected person’), could be engaged by police on the basis that a person was suspected of loitering with the intention of committing a criminal offence (Bowling et al., 2008). Under s.4 of the Vagrancy Act 1824 police could arrest the suspected person on mere suspicion of their intent to commit a crime. Prior to their replacement by s.1 PACE these powers were the subject of a long-running civil society ‘Scrap Sus’ campaign which protested the lack of sufficient control on the use of the powers and their discriminatory impact, especially on people of Afro-Caribbean descent. It was the aggressive use of ‘sus’ laws by the Metropolitan Police to search large numbers of young black men in the London Borough of Lambeth during ‘Operation Swamp’ that sparked the 1981 Brixton Riots. Lord Scarman’s report into the riots stopped short of labelling the police use of stop-and-­ search as racist but acknowledged the negative impact that targeted deployment had on minority communities and their relations with the police (Lord Scarman, 1981). This report alongside the recommendations of the Royal Commission supported the introduction of nationally codified powers (Bridges, 2015; Delsol & Shiner, 2015). Section 1 of PACE grants a general power to search for stolen or prohibited items when an officer has reasonable suspicion that the person stopped is carrying such items. The powers are replicated in several other statutes that allow police to search for specific items, such as drugs or firearms.1 The reasonable suspicion requirement was intended to act as a restraint on police officers’ use of these powers to arbitrarily interfere with individuals’ day-to-day lives. What constitutes reasonable suspicion is governed by a Code of Practice which has been refined and updated as the Home Office has tried to regulate the use of these powers more effectively. In practice, reasonable suspicion is an ill-defined concept that allows officers to point to a wide range of seemingly innocuous  s.23 Misuse of Drugs Act 1971, s.47 of the Firearms Act 1968. Vehicles may be stopped under s.163 of the Road Traffic Act 1988 and searched under s.4 of the Police and Criminal Evidence Act 1984. 1

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behaviour—such as ‘running, hurrying or loitering’ as the basis for a search (Bowling & Marks, 2015, p. 177). Researchers have long warned that “a very large number of searches do not satisfy the precondition of ‘reasonable suspicion’ and are therefore illegal under PACE” (Lustgarten, 1986, p. 616). The flexibility of the concept of reasonableness has historically led officers to believe that almost anything can form the basis of suspicion; in practice it provides little restriction on the exercise of police power (Bowling & Phillips, 2007; Quinton, 2011). These concerns are supported by a 2013 study of stop-and-search records by Her Majesty’s Inspectorate of Constabulary (HMIC) which found that 25% of the cases examined did not meet the legal threshold (HMIC, 2013). Powers based on reasonable suspicion can, nevertheless, be justified— in theory—because of their investigative value. The power to search ‘on suspicion’ allows officers to investigate allegations or other genuine indications of wrongdoing without the need to arrest the individual concerned or take them into police custody. Aside from their value as an investigative tool, some advocates of stop-and-search powers point to their value and justification as a deterrent. They argue that, even where searches yield no investigative fruit, they have value based on both individual and generalised deterrence (Bowling & Marks, 2015). The contention is that individuals who are searched by police are less likely to commit crimes or carry prohibited items in the future and others are deterred by the mere deployment of stop-and-search within their community. According to this rationale, the need for suspicion to justify police action is irrelevant: if stop-and-search has deterrent value then widespread use of targeted or even random stop-and-search can fulfil that purpose. Research suggests however that stop-and-search has very little deterrent impact; moreover, unfettered power to interfere with the lives of individuals is impossible to justify in a democratic society (Miller et al., 2000; Myhill & Bradford, 2012; Tiratelli et al., 2018).

Suspicionless Search Powers Searches requiring reasonable suspicion are the most frequently used powers in England and Wales, accounting for 98% of all recorded searches

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in the decade to March 2021. However, at the peak of police use of stop-­ and-­search tactics in 2009 another category of search power that requires no individualised suspicion accounted for close to 25% of all searches (see Fig. 14.1). These ‘exceptional’ suspicionless powers (Delsol & Shiner, 2015) were first introduced as emergency counter-terrorism powers in the late 1980s in the context of the ongoing threat from IRA terrorism. They then found their way into permanent legislation in the 1990s as parties on the left and right of the political spectrum coalesced around a politics of aggressive ‘law and order’ (Bowling & Marks, 2017). Suspicionless search powers are explicitly preventative and have two legislative purposes: to counter-terrorist threats and to maintain public order. They were first introduced into permanent legislation by section 60 of the Criminal Justice and Public Order Act 1994 (CJPOA). This power is intended to be used in anticipation of, and for the prevention of, violence. It allows a senior officer to authorise the use of the powers within a specific locality for a period of up to 24 hours when they reasonably believe that incidents involving serious violence may take place, when serious violence has already taken place or when weapons are being carried and when it is ‘expedient’ to prevent violence or find the weapons in question. Within this locality, police officers may stop-and-search 16,00,000 14,00,000 12,00,000 10,00,000 8,00,000 6,00,000 4,00,000 2,00,000 0

Fig. 14.1  All police stops data for England and Wales

Suspicionless PACE

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anyone without the need for individual suspicion. Even though the purpose of the search is focused on weapons, any prohibited items that are found can be confiscated and enforcement action may be taken. The second source of suspicionless search powers is counter-terrorism law. Section 44 (since repealed and replaced by section 47A) of the Terrorism Act 2000 (TA) was enacted following a comprehensive review of counter-terror legislation by the Labour government (Bridges, 2015, p. 20). S.44 came into force in October 2001 and allowed senior police officers to authorise the use of this power across an entire police force area when ‘expedient’ for the prevention of terrorism. These authorisations were to be approved by the Home Secretary within 48 hours and could then remain in place for up to 28  days and be extended for a further 28 days. Suspicionless stop-and-search powers under both the TA 2000 and the CJOPA 1994 have an explicit preventative justification. They are to be deployed when authorised, without the need for individualised suspicion to prevent “acts of terrorism” and “incidents involving serious violence”. The powers also have an explicit investigative function as they can be used to search for specific items, even if the officer has no suspicion that such items will be found. In practice, tiny numbers of searches under these provisions result in any prohibited items being found and even fewer result in the confiscation of weapons (an average of 2% of searches between 2001 and 2021) or items to be used in connection with terrorism (under 1% of all searches).

Statistics England and Wales is one of the few jurisdictions in Europe which collects and publishes comprehensive national and local statistics on the use of police stop-and-search. Whilst there are some acknowledged shortcomings in the data, at the very least, they are a reasonably reliable indication of trends in the use of these powers (Bowling & Phillips, 2007). The statistics are compiled by local police forces and reported to the Home Office for publication. The collection and publication of this data, as well as data related to the ethnicity of the person stopped, has been an

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important resource for those seeking to hold the police to account for the misuse of these powers. The official data on the numbers of searches conducted in England and Wales illustrate the ‘turning point’ with which we are concerned. Police use of stop-and-search increased about five-fold during the 1990s, followed by a drop in the 2000s and then a doubling of the use of the powers to early 2010. At this point the use of the powers fell rapidly from an all-time high of over 1.5 million searches to the lowest levels since the early 1990s. Figure 14.1 gives a total picture and in particular highlights the significant rise in the use of suspicionless searches as a proportion of all searches conducted. At their introduction in 1995 they made up less than 1% of all searches, but by the peak of use in 2008/2009 they accounted for almost one quarter. Figure 14.2 shows the number of searches requiring reasonable suspicion under PACE and related legislation. These follow similar trends to suspicionless searches, but it is the data related to the latter (in Fig. 14.3) that provides the starkest illustration of the 2010 turning point: the

14,00,000 12,00,000 10,00,000 8,00,000 6,00,000 4,00,000 2,00,000 0

Fig. 14.2  Police stops under PACE s.1 and related powers requiring reasonable suspicion

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4,00,000 3,50,000 3,00,000 2,50,000 2,00,000 1,50,000

s.44 s.60

1,00,000 50,000 0

Fig. 14.3  Police stops under suspicionless search powers (s.44/s.47A TA 2000 and s.60 CJOPA 1994)

annual total of suspicionless searches plummeted from around 350,000 to 5000 in just four years.

14.3 The Political Landscape in 1990s and 2000s The legislation introducing suspicionless search powers was enacted in the context of a left-right ‘law and order’ consensus. The CJPOA 1994, introduced by a Conservative Government, made sweeping changes to the right to silence and the Youth Justice System as well as introducing suspicionless search powers in their first permanent incarnation. The bill was proposed as part of a government plan to ‘crackdown on crime’ which attempted to address widespread public concern around rising crime rates, football hooliganism, IRA terrorism and illegal raves (Wasik & Taylor, 1995, p. 1). S.60 powers were designed to target football violence but over time their use became widespread in other contexts (Bowling & Marks, 2017).

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The left-wing Labour Party did not oppose the CJOPA (Hansard, 1994 cc. 20–122), convinced by future Prime Minister Tony Blair that they were unelectable whilst appearing to be ‘soft on crime’. This major departure from Labour’s traditional position as defenders of civil liberties ushered in a period in UK politics where parties on the left and right of the political spectrum worked to outdo each other’s tough law and order stance (Downes & Morgan, 2012). This political consensus coincided with a sharp increase in the number of stop-and-searches through the 1990s (Bowling & Marks, 2017; Delsol & Shiner, 2015). As the media focused on rising crime rates and politicians ‘talked tough’ on crime, the police responded by deploying more stop-and-search on the streets. The trend began under a Conservative government and continued as the Labour leadership embraced the language of ‘zero-tolerance’ in the run-up to the 1997 General Election (Bowling et al., 2019). This approach, inspired by Wilson and Kelling’s broken windows thesis, involves the aggressive policing of low-level crime and anti-social behaviour (Wilson & Kelling, 1982). Stop-and-search is seen as a key weapon for the zero-tolerance approach, providing a highly visible means of policing the streets and intervening in low-level disorder understood as a means to reduce major crimes up to and including homicide (Bowling, 1999). Zero-tolerance was one element of New Labour’s authoritarian stance on criminal justice and policing more generally (Cohen, 2000; Ewing, 2010). After winning a landslide victory in the 1997 General Election the New Labour government introduced controversial Anti-Social Behaviour Orders—administrative measures used to sanction non-criminal anti-­ social activity—and proposed the introduction of mandatory ID cards. They also put more police on the streets and actively encouraged the use of targets as a mode of governing the delivery of services. Some police officers acknowledged the role of targets in pushing up the number of searches with evidence that they formed part of performance reviews in some forces (Chainey & Macdonald, 2012). The rise in searches in the late 1990s was temporarily halted in the aftermath of the Lawrence inquiry which examined the botched police investigation into the murder of black teenager Stephen Lawrence. The Macpherson report labelled the Metropolitan Police as institutionally

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racist and set out several recommendations in relation to stop-and-search. Although the inquiry did not directly set out to investigate stop-and-­ search practices, their negative impact on relations between police and the black community featured prominently in the general evidence sessions held around the country. This left the inquiry unable to ignore the issue of stop-and-search and it pointed to the disproportionate impact of police activity as a clear example of institutional racism in practice (Macpherson, 1999; Phillips & Bowling, 2003; Shiner, 2010). The Macpherson report recommended the improved recording of police stops and the abolition of voluntary or non-statutory searches (Macpherson, 1999). The government implemented the inquiry recommendations, and the political mood and police confidence in the aggressive use of stop-and-search was tempered. It was reported that some officers effectively refused to conduct searches due to resentment at the inquiry’s findings of institutional racism, and several forces instituted policies to ensure that searchers were better targeted and intelligence-led (Delsol & Shiner, 2015, p. 18). However, the reduction in searches that this brought about was short-lived; soon crime control concerns and authoritarian politics began to push the numbers up again. The drivers of the rise in stop-and-search in the first decade of this century can be best understood through the changing use of suspicionless searches which accounted for a significant part of the rise in searches overall. In a post-9/11 context, the terror threat formed an important backdrop for the rise in searches, especially in London which accounts for the lion’s share of all searches across the country. Here s.44 of the TA 2000 was authorised for use on a continuous basis and research showed that the power was often used for purposes other than countering terrorism (Parmar, 2011). S.60 use also rose in line with the increase in s.44 searches. This was particularly fuelled by police responses to a perceived growth in knife crime and a media focus on a related teenage ‘murder epidemic’. In 2007 and 2008, 28 and 29 teenagers, respectively, were killed in London mostly by stabbing. In response, the Metropolitan Police launched Operation Blunt 2 in May 2008 making widespread use of s.60, aiming to reduce the number of knives on the streets. Just a month later, the murder of Ben Kinsella—brother of a well-known TV actress—attracted

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significant media attention and sparked anti-knife crime protests across the capital. This environment provided cover for police reliance on suspicionless search powers as a means intended to reduce crime and regain control of the streets. This approach was given resounding political endorsement and stop-and-search rates climbed to an all-time high: in 2008/2009 police recorded over 1.5 million searches, 24% of which were conducted under suspicionless powers and arrest rates fell to an all-time low of 8%. The unfettered rise in the use of stop-and-search powers was not free from controversy. The misuse and over-reliance on suspicionless search powers were extremely problematic and provided evidence of the police response to the highly permissive political landscape. The misuse of s.44 counter-terrorism powers, in particular, resulted in a number of public controversies many of which resonate with themes explored elsewhere in this book.

14.4 The Misuse of Suspicionless Search Powers Despite the legislative time-limits on authorisations in both s.44 and s.60, in practice, these provided very little restraint. S.44 was authorised for use in the whole of Greater London on a continuous ‘rolling basis’ for nearly eight years (Bowling & Marks, 2017; Delsol & Shiner, 2015; Lennon, 2013), and there was evidence that police were overcoming the time limits on s.60 authorisations by rotating them around neighbouring areas (Delsol & Shiner, 2015). Evidence mounted that police officers were routinely using suspicionless powers instead of powers based on reasonable suspicion when these were more appropriate. Researchers and campaign organisations expressed concerns that police were using s.60 powers for a wider range of scenarios than intended, including to respond to low-level disorder (Delsol, 2010). The Independent Reviewer of Terrorism Legislation noted several examples of police using s.44 when no authorisation was in place at all (Lord Carlile, 2008, para. 125) and found evidence that police officers

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sometimes stopped and searched white people only to improve the racial disproportionality statistics (Lord Carlile, 2009, para. 140). Rates of arrest arising from suspicionless searches were exceptionally low—under 1% in some years—especially at the peak of their use. Research showed that the most common outcomes were minor enforcement actions, such as alcohol confiscation, cannabis warnings and dispersal orders (Parmar, 2011). S.44 counter-terrorism powers were frequently used against peaceful protestors, and this controversial tactic resulted in media attention and criticism from oversight bodies. In 2003 s.44 was used to halt an anti-war protest at RAF Fairford, a military base in Gloucestershire. The campaign group Liberty complained to Gloucestershire police claiming that officers were serving s.44 notices in order to prevent protests from taking place (J. Wilson, 2003). The powers were used against protestors and journalists at an arms fair in East London in 2003, events that resulted in the legal action which eventually overturned the powers (see below). In 2005, s.44 was used to search over 600 people at the Labour Party conference in Brighton, none of whom were suspected of terrorist activities. The majority of the people searched were anti-war protestors; no one was arrested (The Scotsman, 2005). The most shocking example, attracting widespread condemnation, was the case of Walter Wolfgang, a prominent 82-year-old Holocaust survivor and member of the Campaign for Nuclear Disarmament (CND) who was ejected from the Conference after heckling the Foreign Secretary (Sparrow, 2005). The police initially denied searching Mr Wolfgang but later admitted the search had been recorded and the Labour Party had to apologise. The UK parliamentary Joint Committee on Human Rights (JCHR) expressed discomfort with the use of s.44 against protestors and labelled the use of stop-and-search as suppression, harassment, and a violation of protestor’s rights to freedom of speech and assembly (JCHR, 2009, para. 13). The National Union of Journalists gave evidence to the JCHR that, in their opinion, the police were trying to suppress protest (JCHR, 2009 Ev 88–89). It was not only protestors who fell-foul of the over-zealous use of suspicionless search powers. Police frequently used s.44 to stop photographers taking pictures of public buildings or police officers. On various

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occasions, photographers were searched whilst photographing St Paul’s Cathedral (Davenport, 2009), a wedding in London Docklands, and Christ Church in the City of London; in the latter incident an ITV film crew was prevented from recording the encounter (Rowlands, 2010). This mobilised a press campaign with The Independent and The British Journal of Photography protesting against the routine harassment of photographers. In 2005 the powers were used to search train-spotters at a station which had been included on a list of possible terror targets (Delsol & Shiner, 2015) and the police even searched Conservative MP Andrew Pelling whilst taking photographs of a cycle path despite him showing his Parliamentary ID (The Telegraph, 2009). The Independent Reviewer of Terrorism Legislation, Lord Carlile, was instrumental in highlighting misuses of s.44 in his annual reports from 2003 onwards (Lord Carlile, 2004, 2006, 2008, 2009) but his pleas for the powers to be used more sparingly fell on deaf ears.

14.5 Disproportionate Impact Another major issue with all stop-and-search powers in England and Wales is their disproportionate impact on minority ethnic communities and young black men in particular (Bowling & Phillips, 2007, pp. 952–953). As mentioned above, disproportionality was a source of public controversy long before the introduction of PACE. In 2009 the Runnymede Trust published a report reviewing the Lawrence Inquiry recommendations, concluding that “the disproportional use of this power has not changed over the last decade” (Rollock, 2009, p. 62). Statistics from the Home Office show that black people were six times more likely to be stopped and searched than whites in 2010/2011; this fell to just over four times more likely in 2013/2014 and then rose again to over nine times more likely in 2018/2019 (Home Office, 2022). Despite changes in the overall use of stop-and-search these disproportionality figures remain persistently high across all stop-and-search powers (Bowling & Phillips, 2007; Delsol, 2015; Delsol & Shiner, 2015). This disproportionate use of stop-and-search has been linked with public disorder on numerous occasions since the 1980s. In the summer

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of 2011, the police killing of Mark Duggan sparked riots in cities across the UK and research found that rioter’s “most common complaints related to people’s everyday experiences of policing, with many expressing deep frustration at the way people in their communities were subjected to stop-and-search” (Lewis et al., 2011). An independent Communities and Victims panel set up in the aftermath of the riots also identified stop-­ and-­search as a source of discontent and a possible motivating factor for rioters (Riots Communities and Victims Panel, 2013). By 2010 there was overwhelming academic research evidence that police stop-and-search powers were unfair and ineffective. On fairness, Bowling and Phillips (2007) established convincingly that the disproportionate use of stop-­ and-­search was indicative of discrimination and there was no plausible alternative explanation. On effectiveness, statistical evidence showed that stop-and-search had only a limited impact on crime (FitzGerald, 2010; Miller et al., 2000; Ward et al., 2011). Studies by Hough et al. (2010)and Jackson and Bradford (2009) showed that poorly conducted stop-and-­ search damaged community relations and undermined the authority of the police. A range of civil society organisations—including Liberty, Statewatch, Human Rights Watch, The Runnymede Trust and the Institute of Race Relations—used scholarly research to build momentum for policy change by producing reports and supporting legal action focused on the misuse and disproportionate impact of police stop-and-search (Bowling & Marks, 2017, p.  81). In 2010 a coalition of academics, practitioners, lawyers and activists came together to create StopWatch, a new NGO with the specific goal of using empirical research to work towards fairer and more accountable use of stop-and-search powers (Bowling & Marks, 2017, p. 85). But, just as the warnings of Lord Carlile had gone unheeded, a decade of research highlighting the disproportionate impact of stop-­ and-­search resulted in little government action until the Equality and Human Rights Commission (EHRC) took up the challenge. In 2010 the EHRC—the UK public body charged with promoting and upholding equality—published Stop and Think, a review of individual police forces’ use of PACE stop-and-search powers over a five-year period (EHRC, 2010). The report noted unjustifiably high levels of ‘excess searches’ of ethnic minorities compared with their white

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counterparts. The patterns of use and disproportionality were inexplicably and strikingly different in neighbouring police force areas, including those with similar populations and patterns of crime. The report also questioned the effectiveness of stop-and-search in preventing and detecting crime, noting official estimates that it reduced ‘disruptable crimes’ by only 0.2% (Miller et al., 2000, p. 28). While pockets of good practice were found in some police force areas, these had made little lasting impact on the fairness and effectiveness of stop-and-search powers and major reform was now required. The EHRC concluded that the police use of stop-and-search was disproportionate, discriminatory, and damaging to community relations and threatened legal action against the ‘worst-­ offending’ police forces (EHRC, 2010). In 2013 a follow-up report entitled Stop and Think Again reported that the five forces of most concern had reduced their overall use of stop-and-search, and some had achieved a reduction in disproportionality. These police forces, the EHRC said, “are being fairer and more efficient in their use of stop-and-search as a result” (EHRC, 2013).

14.6 Legal Challenge In the early 2000s Liberty, the largest civil liberties NGO in the UK supported legal action against s.44 of the TA 2000 following its misuse at an arms fair in 2003. This action made its way through the UK courts and eventually to the European Court of Human Rights (ECtHR), ultimately leading to the repeal of s.44 and a radical reduction in the use of stop-­ and-­search overall. In this landmark case, both claimants were attending a demonstration opposing arms fair when the police stopped and searched them under s.44. Mr Gillan, a 26-year-old PhD student, was attending the demonstrations as a peaceful protestor. The police confiscated documents relating to the demonstration, although they had no connection to terrorism. Ms Quinton, a journalist, was attending the demonstration to document the protests. She was stopped by a police officer and asked to identify herself. Despite wearing a photographer’s jacket and showing her press pass, Ms Quinton was told to stop filming and was searched under

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s.44. She had intended to return to the demonstration but felt so intimidated that she decided to leave the area. The claimants challenged the general pattern of s.44 use as well as the police action in their specific cases. They argued that the exercise of the power against them whilst attending a peaceful protest was contrary to its legislative purpose and pointed to evidence that s.44 was being used as part of day-to-day policing. They also argued that the long-term authorisation of the power across London was not anticipated by the statute. Arguments were advanced under the Human Rights Act 1998 in relation to Articles 5, 8, 10 and 11 of the ECHR. It was argued that a stop-and-­ search, backed by a power of arrest and potential criminal penalty in the case of non-compliance, constituted a deprivation of liberty under Article 5. They also submitted that the stop-and-search interfered with the Article 8 right to private life and that, when misused against protestors, s.44 infringed rights to freedom of expression and assembly under Articles 10 and 11. The UK courts rejected all arguments at every stage of the process with the House of Lords—the highest UK court—handing down its judgement on 8 March 2006 (R. (on the application of Gillan) vs. Commissioner of Police of the Metropolis, UKHL 2006). The Law Lords rejected the contention that a stop-and-search amounted to a deprivation of liberty or that it interfered with the right to privacy but did concede that misuse against protestors might engage Articles 10 and 11. However, they insisted that any interference would be proportional to countering the grave terrorist threat. The case was heard by the ECtHR in May 2009, and in January 2010 the Court held that the s.44 searches violated the claimants’ rights to privacy (Gillan and Quinton vs. United Kingdom (4158/05), EHRR 2010). The Court held that despite the public nature of the encounter a stop-and-search did engage the right to private life. For an interference with Article 8 to be justified it must be ‘in accordance with the law’, pursue a ‘legitimate aim’ and be ‘necessary in a democratic society’. S.44 fell at the first hurdle. Although clearly, it had a basis in domestic law, it failed to meet the rule of law requirements to protect against arbitrary interferences with individual rights. At the authorisation level the requirement of ‘expedience’ placed insufficient restraint on senior police officers. The

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court opined the breadth of the power to authorise and confirm the use of s.44 was such that applicants would ‘face formidable obstacles in showing any authorisation and confirmation to be an abuse of power’. The court was also disturbed by the rolling authorisation in London, which demonstrated that the geographical and temporal restrictions provided no constraint in practice. The court’s primary cause for concern was the ‘breadth of discretion conferred on the individual officer’. It noted the absence of any reasonable suspicion requirement or even subjective suspicion to justify the use of the power. It observed that none of the hundreds of thousands of searches had ever resulted in a prosecution for a terrorist offence, suggesting that the powers were being used for purposes unrelated to terrorism. There was ‘a clear risk of arbitrariness in the grant of such broad discretion to the police officer’, the Court said, and held that the powers breached Article 8: they were not in ‘accordance with the law’.

14.7 Law and Policy Impact As the legal challenge failed in the UK courts, the police use of suspicionless search powers and those under PACE s.1 continued to rise, peaking in 2008/09, when the ECtHR granted leave to appeal. Reading the writing on the wall, the Home Office issued new guidelines raising the threshold for s.44 authorisations (Bowling & Marks, 2017). This was followed by a decision from the Metropolitan Police to restrict the use of s.44 across London in 2009 (Yates, 2009). The guidance supported the retention of the powers only at sites of ‘key strategic importance’ and aimed to reduce the use of the power unless a significant terror threat arose. The guidance advised officers to employ s.43 powers based on reasonable suspicion to investigate behaviour which raised suspicions of terrorism (Lennon, 2013; Yates, 2009). In the year to March 2011, following these major policy shifts, but before any legal changes, stop-and-search use fell by around 10%. Despite the ECtHR ruling that s.44 was incompatible with Article 8, it remained in use for over a year when the Government replaced s.44 with s.47A under the Terrorism Act (Remedial Order) 2011. S.47A retained

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stop-and-search without reasonable suspicion, but required the authorising officer to consider these powers ‘necessary’—rather than merely ‘expedient’—before deploying them (Bowling & Marks, 2017, p.  83). This change in the threshold for authorisation significantly curtailed the use of the powers, so much so that s.47a was not used at all in England and Wales until 2018 when only 149 searches were carried out. It has not been used since. Despite there being no official changes in law or policy relating to s.60 these searches also fell in line with s.44. A major political shift at this time also impacted searches under PACE s.1.

14.8 The Political Landscape Shifts In the run-up to the May 2010 General Election, prior to any legal changes in suspicionless search powers, the political landscape shifted dramatically. This was a response to the public disquiet about the aggressive use of stop-and-search, which was increasingly characterised in the media as an assault on civil liberties. As it became clear that s.44 contravened the ECHR and civil society actors mobilised against the use of the power, the Conservative Party, sensing New Labour’s weakness on this issue, ran for election on a libertarian ticket, pledging to restore civil liberties. In June 2009, then-opposition leader David Cameron said that a Conservative government would scrap s.44 as part of a plan to roll back Labour’s ‘control state’ (Prince, 2009). In April 2010 Conservative shadow Home Secretary, Chris Grayling, said: “Labour have trampled our civil liberties for far too long. Whether they’re trying to impose ID cards, or allowing hundreds of thousands of innocent people to be stopped and searched under terrorism powers, they always seem to think the state knows best. We can’t go on like this” (Whitehead, 2010). The pressure for reform of stop-and-search continued after the 2010 General Election delivered a Conservative-Liberal Democrat coalition government. In an editorial on 10 June, the Daily Telegraph accused the police of ‘taking a cavalier approach to the law’, abusing s.44 powers, doing nothing to fight terrorism and alienating the community they were supposed to serve. The new Home Secretary Teresa May told Parliament that she would not allow ‘the continued use of s.44 in contravention of

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the European Court’s ruling and, more importantly, in contravention of the civil liberties of every one of us’ (Home Office, 2010). In March 2011 this promise was fulfilled, Parliament repealed s.44, replacing it with a more tightly circumscribed power. In the wake of the 2011 riots, HMIC investigated the fairness and effectiveness of stop-and-search. Their report noted that the inappropriate use of these powers strained the relationship between the police with the communities they are meant to serve, and that stop-and-search was only lawful where reasonable grounds for suspicion were established based on specific and objective information. The Inspectorate found that most officers had not received training on stop-and-search and were left to learn through the example of others, which led to poor practice. They found that one-quarter of records examined during the investigation contained no reasonable grounds for suspicion. Although some officers believed that stop-and-search could help control the streets, in the long term the inappropriate use of the power had led to major disorder (HMIC, 2013). Anticipating the publication of this report Teresa May launched a public consultation on stop-and-search in July 2013 and later that year delivered a speech to the Conservative Party conference taking an explicitly anti-racist, libertarian stance on policing and committing to reforming stop-and-search. It is important to note that this anti-racist message was delivered against the backdrop of aggressive anti-immigration policies and in a time of austerity following the 2008 economic crisis. Recorded crime was also falling and public concerns around knife crime had all but evaporated. In this context an anti-racist libertarian message served two instrumental purposes. First, it helped to justify a reduction in police numbers by highlighting stop-and-search as a counterproductive and expensive ‘waste of police time’. Second, it drew a line between the ‘others within’ (ethnic minorities unfairly subject to police stop-and-search) and the ‘others without’ (irregular migrants—subjected to the aggressive policing of the ‘hostile environment’). Thus, the government sought to reassure Middle England that they would be tough on immigration whilst avoiding alienating British citizens (and voters) from ethnic minority backgrounds.

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In April 2014, following the publication of the Home Office consultation, a package of reforms was announced that aimed to achieve greater transparency, improve community engagement, encourage police accountability, and develop a more targeted and effective intelligence-led approach to the use of stop-and-search (Home Office, 2014). The reforms included a revision of the codes governing reasonable suspicion, removing individual officer targets for stop-and-search, a review of national police training on stop-and-search and unconscious racial bias, and the launch of the Best Use of Stop and Search Scheme (BUSSS). This scheme, among other things, raised the threshold for authorisation of s.60 searches and limited it to 15  hours. Announcing these reforms to Parliament May said: I want to make myself absolutely clear: if the numbers do not come down, if stop-and-search does not become more targeted, if those stop-to-arrest ratios do not improve considerably, the government will return with primary legislation to make those things happen. […] Nobody wins when stop-and-search is misapplied. It is a waste of police time. It is unfair, especially to young, black men. It is bad for public confidence in the police. (Hansard, 2014)

14.9 Impact on Police Practice The use of stop-and-search powers began to fall as the political landscape shifted and reforms were implemented. The fall was slow at first—at an annual rate of around 10%—and then dramatic: searches fell by 40% in 2014/2015. By this time, the use of suspicionless searches had all but terminated: not a single suspicionless counter-terrorism search was recorded between 2011 and 2017 and only 622 searches under s.60 were recorded in the year ending April 2017. Searches with ‘reasonable suspicion’ under PACE s.1 also fell from a high of well over 1 million searches annually to only 277,000 in 2018. The result of this reduced and more targeted stop-and-search was an all-time high arrest rate of 17%. This sustained fall in searches began at the pivotal moment in 2010 when the public controversies, discussed above, forced stop-and-search

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onto the political agenda. The political terrain shifted as campaign organisations built momentum in civil society and supported court action sufficient to force a change in the law. Having “overtaken the Conservatives on the right” in relation to criminal justice and law enforcement (Downes & Morgan, 2012), Labour lost the election to a Conservative-Liberal Democrat coalition which had embraced a more liberal approach to policing and committed itself to reducing stop-and-search. This political mood, combined with the landmark judgement in Gillian & Quinton v UK in the same year, paved the way for reforms in law and policy. These developments provided the context for major change with ongoing pressure from civil society galvanising the political will required for implementation. No single element can explain these changes; only by examining the wider political, legal and organisational context can we see what was required to bring about this radical shift (Bowling & Marks, 2017).

14.10 Recent Developments In 2017 we suggested that a “20-year experiment with suspicionless searches in England and Wales seems to have come to a conclusive end”. We also warned that a shift in the political landscape or security situation could lead to their resurgence. We argued that unless the legal powers for the police to stop-and-search people without suspicion were abolished entirely “their use could increase without public debate or political consideration of the serious invasion of individual rights that these powers entail” (Bowling & Marks, 2017, p. 109). Since this time the UK has seen a resurgence of public controversy around rising knife crime, which began to climb again in 2016, as well as widespread concerns around disruptive protests that the government have pledged to address with aggressive policing tactics. The Conservative Party, in government with a significant majority since 2019, lunged to the right and is taking a strong authoritarian approach to law and order. In early 2022 the UK legislature considered, then rejected, the government’s Police, Crime Sentencing and Courts Bill which included powers to stop-and-search—without the need for

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reasonable suspicion—anyone at a protest or passing by a protest. In December 2021 the Justice Secretary announced plans to overhaul the Human Rights Act, a pillar of the progressive reforms of the New Labour era, and the key legal basis for challenges to the abuse of stop-and-search. One aim of this overhaul is to remove the ‘positive obligations’ placed on public institutions, to protect human rights. This threatens to remove a key restraint on the abuse and overuse of stop-and-search powers. In 2019 a pilot scheme lifted the restrictions on s.60 stop-and-search for several police forces. The Home Secretary Priti Patel pointed to rising knife crime, claiming that “stop and search is a vital tool in combatting the scourge of serious violence and keeping people safe”. She pledged full support to the police and “more police authority to approve stop-and-­ search to halt this terrible crime in its tracks” (Home Office, 2019). In May 2022 this pilot scheme was extended to all 43 police forces in England and Wales and the restrictions on the use of s.60 introduced by BUSSS were permanently lifted. Following these changes suspicionless searches have made the comeback that we predicted five years ago, rising from a low of only 622 searches in 2016/2017 to 18,043 in 2019/2020. This rise has seen the arrest rate fall from 12% to only 4% and an increase in racial disproportionality. Many police chiefs have welcomed the removal of restrictions, whilst others have pledged to continue using the powers sparingly. Searches under PACE have also risen dramatically in this period, more than doubling from a low of 277,105 in 2017/2018 to 695,009 searches in 2020/2021. Many police forces employed stop-and-search aggressively during COVID-19 lockdowns giving rise to familiar problems with disproportionate targeting of minorities and the misuse of powers. It was revealed that around 1 in 10 black males aged 15–25 were stopped and searched in London during the May 2020 lockdown (Grierson, 2022). With this most recent change in the political mood and pledges by the government to increase police powers and ‘reduce red tape’, it may well be that a new experiment in stop-and-search is just beginning. The numbers have increased but are still a long way below the peaks seen in 2008/2009. We have learned from the major victories by defenders of civil liberties during the 2010–2018 period that public engagement and civil society pressure on government and legislators to scrutinise and

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circumscribe police powers are the key to instigating and cementing real change.

14.11 Conclusion The policy journey of stop-and-search powers explored in this chapter shows that police practice can and does change in quite dramatic ways. The statistical data illustrate the rises and falls in the use of police powers, and we have sought to explain these changes by analysing criminological research evidence, documents produced by government and non-­ governmental agencies, legal cases and news media reporting. This contextual information shows that the change in the use of coercive police powers has been shaped to a significant extent by public controversy. The two main points of contention that lie at the heart of policework are, firstly, that the police should protect the public from serious harm and, secondly, that police powers should be used in ways that protect and respect human rights and civil liberties. When the police are perceived as failing to provide protection—for example, against knife crime—their effectiveness and legitimacy come into question. Pressure mounts on police and government to ‘do something’ and the tendency is to turn to the use of visible coercive powers such as stop-and-search, even in the absence of evidence of their effectiveness. On the other hand, a legitimacy crisis is triggered when the police are judged to be intruding too far into civil liberties or discriminating against specific communities. This chapter shows that changes in the use of coercive powers are triggered by public controversies, fuelled by political punditry that can cause a dangerous lurch in policy if it is not tempered by research evidence and clear analysis. Based on the evidence of the past, we can anticipate that public controversies and how they are framed by the media, politicians and civil society campaigners will continue to shape the use of these powers and how they affect the lives of people subject to them. Police researchers should seek to investigate and understand these dynamics and be prepared to contribute systematic research evidence on the impact, fairness and effectiveness of stop-and-search powers. Rigorous research can

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provide an empirical and moral compass for navigating a policy field otherwise dominated by public controversy and political whim.

References Bowling, B. (1999). The rise and fall of New York murder: Zero tolerance or Crack’s decline? British Journal of Criminology, 39(4), 531–554. Bowling, B., & Marks, E. (2015). Towards a transnational and comparative perspective. In R. Delsol & M. Shiner (Eds.), Stop and search: The anatomy of a police power. Routledge. Bowling, B., & Marks, E. (2017). The rise and fall of suspicionless searches. King’s Law Journal, 28(1), 62–88. Bowling, B., & Phillips, C. (2007). Disproportionate and discriminatory: Reviewing the evidence on police stop and search. The Modern Law Review, 70(6), 936–961. Bowling, B., Parmar, A., & Coretta, P. (2008). Policing ethnic minority communities. In The handbook of policing (pp. 611–641). Willan Publishing. Bowling, B., Reiner, R., & Sheptycki, J. (2019). The politics of the police (5th ed.). Oxford University Press. Bridges, L. (2015). The legal powers and their limits. In R. Delsol & M. Shiner (Eds.), Stop and search: The anatomy of a police power (pp.  9–30). Palgrave Macmillan UK. https://doi.org/10.1057/9781137336101_2 Chainey, S., & Macdonald, I. (2012). Stop and search, the use of intelligence and geographic targeting. National Police Improvement Agency. Cohen, N. (2000). Cruel Britannia: Reports on the sinister and the preposterous. Verso. Davenport, J. (2009, October 27). BBC man in terror quiz for photographing St Paul’s sunset. London Evening Standard. Delsol, R. (2010). Section 60 stop and search powers. Ethnic profiling: The use of ‘Race’in UK law enforcement. Delsol, R. (2015). Effectiveness. In M.  Shiner & R.  Delsol (Eds.), Stop and search (pp. 79–101). Palgrave Macmillan. Delsol, R., & Shiner, M. (2015). The politics of the powers. In M. Shiner & R.  Delsol (Eds.), Stop and search: The anatomy of a police power. Palgrave Macmillan. Downes, D., & Morgan, R. (2012). Overtaking on the Left: The Politics of Law and Order in the ‘Big Society’. In M.  Maguire, R.  Morgan, & R.  Reiner

14  Regulating Stop-and-Search in England and Wales: Public… 

335

(Eds.), The Oxford handbook of criminology (5th ed., pp. 182–205). Oxford University Press. EHRC. (2010). Stop and think: A critical review of the use of stop and search powers in England and Wales. EHRC. (2013). Stop and think again: Towards race equality in police PACE stop and search. Ewing, K. D. (2010). Bonfire of the liberties: New labour, human rights, and the rule of law. Oxford University Press. FitzGerald, M. (2010). Background note: Analyses of MPS knife crime data and the use of s60 searches. Gillan and Quinton v United Kingdom (4158/05), (2010). Grierson, J. (2022, July 8). Met carried out 22,000 searches on young black men during lockdown. The Guardian. Hansard. (1994). Criminal justice and public order bill (p. Volume 235). Hansard. (2014). Stop and Search (p. Volume 579). HMIC. (2013). Stop and search powers: Are the police using them effectively and fairly? Home Office. (2010). Teresa may tells parliament that the government will change how stop and search powers are used under the terrorism act (p. 8 July). Home Office. Home Office. (2014). Stop and search: Theresa may announces reform of police stop and search. Home Office. Home Office. (2019). Government lifts emergency stop and search restrictions (p. 11 August). Home Office. (2022). Ethnicity facts and figures - stop and search. https://www. ethnicity-­facts-­figures.service.gov.uk/crime-­justice-­and-­the-­law/policing/ stop-­and-­search/latest#data-­sources. Hough, M., Jackson, J., Bradford, B., Myhill, A., & Quinton, P. (2010). Procedural justice, trust, and institutional legitimacy. Policing, 4(3), 203–210. https://doi.org/10.1093/police/paq027 Jackson, J., & Bradford, B. (2009). Crime, policing and social order: On the expressive nature of public confidence in policing. The British Journal of Sociology, 60(3), 493–521. JCHR. (2009). Demonstrating respect for rights? A human rights approach to policing protest. Lennon, G. (2013). Precautionary Tales: Suspicionless counter-terrorism stop and search. Criminology and Criminal Justice, 15(1), 44–62.

336 

E. Marks and B. Bowling

Lewis, P., Newburn, T., Taylor, M., Mcgillivray, C., Greenhill, A., Frayman, H., & Proctor, R. (2011). Reading the riots: Investigating England’s summer of disorder. Lord Carlile. (2004). Report on the operation in 2002 and 2003 of the terrorism act 2000. Lord Carlile. (2006). Report on the operation in 2005 of the terrorism act 2000. Lord Carlile. (2008). Report on the operation in 2007 of the terrorism act 2000 and of part 1 of the terrorism act 2006. Lord Carlile. (2009). Report on the operation in 2008 of the terrorism act 2000 and of part 1 of the terrorism act 2006. Lord Scarman. (1981). The Scarman report. Lustgarten, L. (1986). The governance of the police. Sweet & Maxwell. Macpherson, W. (1999). Inquiry into the matters arising from the death of Stephen Lawrence. Miller, J., Bland, N., Quinton, P., & Willis, C. F. (2000). The impact of stops and searches on crime and the community. Home Office, Policing and Reducing Crime Unit, Research, Development and ….. Myhill, A., & Bradford, B. (2012). Can police enhance public confidence by improving quality of service? Results from two surveys in England and Wales. Policing and Society, 22(4), 397–425. Parmar, A. (2011). Stop and search in London: Counter-terrorist or counter-­ productive? Policing and Society, 21(4), 369–382. Phillips, C., & Bowling, B. (2003). Racism, ethnicity and criminology. Developing minority perspectives. British Journal of Criminology, 43(2), 269–290. Prince, R. (2009, June 25). David Cameron: Conservative government will end stop and search. The Telegraph. Quinton, P. (2011). The formation of suspicions: Police stop and search practices in England and Wales. Policing and Society, 21(4), 357–368. R. (on the application of Gillan) v Commissioner of Police of the Metropolis, (2006). Riots Communities and Victims Panel. (2013). After the riots: The final report of the riots communities and victims panel. Rollock, N. (2009). The Stephen Lawrence inquiry 10 years on. In The Runnymede Trust. Rowlands, M. (2010). Statewatch analysis UK: The Misuse of Section 44 stop and search powers continues despite European Court ruling.

14  Regulating Stop-and-Search in England and Wales: Public… 

337

Royal Commission on Criminal Procedure. (1981). Report of the Royal Commission on Criminal Procedure. Shiner, M. (2010). Post-Lawrence policing in England and Wales: Guilt, innocence and the defence of organizational ego. The British Journal of Criminology, 50(5), 935–953. Sparrow, A. (2005, September 29). Heckler, 82, who dared call straw a liar is held under terrorist law. The Telegraph. The Scotsman. (2005, October 3). Over 600 held under terror act at labour conference. The Scotsman. The Telegraph. (2009, January 6). Tory MP stopped and searched by police for taking photos of a cycle path. The Telegraph. Tiratelli, M., Quinton, P., & Bradford, B. (2018). Does stop and search deter crime? Evidence from ten years of London-wide data. The British Journal of Criminology, 58(5), 1212–1231. https://doi.org/10.1093/bjc/azx085 Ward, L., Nicholas, S., & Willoughby, M. (2011). An assessment of the tackling knives and serious youth violence action Programme (TKAP)-phase ll (Research Report 53). Wasik, M., & Taylor, R. D. (1995). Blackstone’s guide to the criminal justice and Public Order Act 1994. Blackstone Press. Whitehead, T. (2010, April 16). Huge rise in stop and search. The Telegraph. Wilson, J. (2003, June 16). Terrorism act used to halt protest. The Guardian. Wilson, J.  Q., & Kelling, G.  L. (1982). Broken Windows. Atlantic Monthly, 249(3), 29–38. Yates, J. (2009, May 7). Section 44 terrorism act 2000  - tactical use review. Metropolitian Police Authority. http://policeauthority.org/metropolitan/committees/sop/2009/090507/10/index.html

Index1

A

Austerity, 103, 329 Austria national broadcasting service (ORF), 301 Police Security Act (SPG), 290, 290n1, 291, 294 Supreme Administrative Court (VwGH), 13, 160–162, 166, 294 T-Ser, 7, 297 Vienna Academic Ball, 297

Law on the Police Function (LPF), 173, 174, 176, 183 Black Lives Matter (BLM), 2, 4, 104, 163, 172, 198, 202, 205, 248, 250, 257–258, 260, 278, 282 Body worn camera (BWC), 16, 43, 136, 137, 143, 190, 257 Body worn video (BWV), see Body worn camera Bosnia and Herzegovina, 62 Brixton riots, 1981, 312, 313 C

B

Belgium Arabic European League (AEL), 184–186, 190 Ben Chika, ZouZou, 11, 189 Djato, Stéphanie, 186–187

Civil society organizations Amnesty International, 6, 28, 35, 38, 40, 99, 102, 106, 172, 175, 176, 183, 189–191, 249–250, 258, 280, 281, 298, 300, 301

 Note: Page numbers followed by ‘n’ refer to notes.

1

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 J. de Maillard et al. (eds.), The Politicization of Police Stops in Europe, Palgrave’s Critical Policing Studies, https://doi.org/10.1007/978-3-031-35125-9

339

340 Index

Civil society organizations (cont.) Campaign for Nuclear Disarmament (CND), 322 Center for Social Justice (OMOD), 198, 202–206 Climate Action Network, 37 Committee on the Elimination of Racial Discrimination (CERD), 184, 259 Greenpeace, 36, 37, 106 Liberty, 322, 324, 325 Neighbourhood Brigades of Observation of Human Rights (BVODH), 6, 102 Open Society Justice Initiative (OSJI), 13, 99, 100, 102, 103, 124, 126–128, 130–133, 137, 139, 140, 280 Contrôles au faciès, see Identity checks Covid-19 pandemic, 2, 38–39, 42, 74, 94, 184, 205, 213, 240, 241, 248, 250, 257–258, 304, 305 Criminal Justice and Public Order Act (CJPOA, 1994), 315, 318 Croatia, 2, 8, 51–70 post-communist, 55, 60, 61 D

Democratic transition, 28, 31, 38, 42, 74, 79–80, 82, 93 Demonstrations, see Protests E

England and Wales Best Use of Stop and Search Scheme (BUSSS), 330, 332

Dos Santos, Ricardo, 7 Duggan, Mark, 324 Equality and Human Rights Commission (EHRC), 5, 324, 325 Joint Committee on Human Rights (JCHR), 322 Macpherson Report, 319, 320 Police and Criminal Evidence Act (1984) (PACE), 228, 312–314, 317, 323, 324, 327, 328, 330, 332 Section 60/s60, 5, 315, 318, 320, 321, 328, 330, 332 Terrorism Act (TA, 2000), 14, 18, 316, 318, 320, 325, 327 Williams, Bianca, 7, 102 Ethnic profiling, 6, 17, 66, 84, 99–103, 110, 111, 113, 147–167, 172, 174, 176, 182–184, 187–191, 200, 203n3, 204, 248, 249, 255, 258, 267, 269, 275, 278–282, 284, 285, 289, 292–296, 306 European Commission against Racism and Intolerance (ECRI), 6, 102, 153–155, 165, 198, 202, 203, 208, 210, 211, 292, 294, 295 European Convention on Human Rights (ECHR), 233 European Court of Human Rights (ECtHR), 14, 18, 30, 62, 259, 312, 325–327 European Union (EU), 2, 52, 55, 98, 247, 248, 253, 254, 259, 293, 294, 302

 Index 

341

Finland Nikander, James (Musta Barbaari), 159, 166 Yleisradio, Finnish National Broadcasting Company, 151, 153, 158–161, 163 Football disorder, policing of, 5 France Ben Achour, Slim, 137–139 de Belloy, Felix, 137, 138 Fundamental Rights Agency (FRA), 293, 294, 296, 298, 300, 302

257, 259, 269, 275, 289–292, 295–297, 299 contrôles au faciès, 13, 123–144 Immigration, 4, 5, 7, 10, 14, 20, 21, 61, 68, 80, 97–114, 125n4, 147, 148, 150–152, 154–159, 166, 188, 199, 200, 210–213, 211n5, 254, 256–257, 283, 291, 301, 302, 329 border controls, 20, 80, 211, 254 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 201

G

K

F

Germany Model Police Act, 5, 20, 251–254, 257, 260 Schleierfahndung, 247, 254, 257 H

Hungary Helsinki Committee, 17, 85–87 Roma, 10, 16, 75, 84–86, 90, 94, 100, 147–149, 152, 162–165, 292, 293 I

Identity checks, 3, 6, 9, 10, 18, 51, 52, 54–68, 70, 89, 100, 102, 103, 106, 123, 128, 132, 138, 152, 155, 159–161, 171–192, 198, 199, 210–213, 245, 252,

Kerner Commission, 1 L

Legitimacy, 7, 22, 28, 130, 152, 153, 166, 167, 171, 177, 192, 207, 210, 213, 267, 333 M

Media BFMTV, France, 128 British Broadcasting Corporation (BBC), 109, 110n5, 232, 234 National broadcasting service (ORF), Austria, 301 Yleisradio, Finnish National Broadcasting Company, 151, 153, 158–161, 163 Migration, see Immigration

342 Index N

Netherlands administrative restraint, 20, 270–272, 285 preventive search, 20, 276–279, 285 Typhoon, 7, 281 Vermeer, Kennether, 7, 281 Norway Center for Social Justice (OMOD), 198, 202–206 Equality and Anti-Discrimination Ombudsman (LDO), 198, 201, 202, 210, 213 Obiora, Ejike, 7, 17, 198, 206–210 Oslo Police District, 200, 205, 206, 208, 211, 213, 214 O

Ombudsman, 28, 29, 31, 34, 35, 38–40, 42, 53, 63, 67–68, 153, 153n2, 155n3, 157, 159, 161, 164, 165, 201, 206, 214, 304 Organisational change, 190, 223–241 Organisational justice, 224, 236, 238, 241 P

Pandemic, see Covid-19 pandemic Poland COP24, 37 Frasyniuk, Władysław, 35, 35n3, 36, 42 Stachowiak, Igor, 7, 27, 33–34 Volunteer Reserve of the Citizens’ Militia (ORMO), 30

Police unions, 9, 16, 22, 63, 64, 101, 107, 107n3, 110, 112, 113, 124, 132, 134, 137, 143, 144, 204, 205, 209, 250, 275 Procedural justice, 17, 176, 177, 208 Protests, 4, 5, 7, 10, 15, 20–23, 34–39, 79, 81, 82, 89, 94, 97–114, 130, 142, 163, 184, 186, 187, 190, 202, 205–207, 213, 250, 255, 256, 270, 271, 280, 282, 297, 297n6, 298, 321, 322, 325, 326, 331, 332 Protests, policing of, 4 Kettling (‘cauldron’), 5, 6, 35, 297 R

Racial profiling, 13, 61, 85–87, 94, 100, 102, 106, 112, 124, 126, 127, 129, 131, 134, 139, 147, 148, 152, 157, 161, 162, 165–167, 184, 198, 202–206, 211, 212, 248–251, 253, 255, 258, 260, 294, 296, 302, 303, 305 Recording stops Oslo trial, 13 Scottish reforms, 18, 19, 223–225, 231, 234, 236–238 Roma, policing of, 16 S

Scarman report, 313 Scotland Her Majesty’s Inspectorate of Constabulary Scotland (HMICS), 18, 226, 228, 233–235, 314

 Index 

National Stop Search Unit (NSSU), 18, 234, 235 Scottish Human Rights Commission (SHRC), 233, 234 Scottish Police Authority (SPA), 13, 18, 227–229, 233–235, 240 Slovenia, 61, 62 Spain Catalan elections, 110 Coalition for the Police Management of Diversity (PGPD), 102 Law for the Protection of Public Security (LOPSC), 98, 99, 103, 105–108, 110, 113 Programme for Effective Identity Checks projects (PIPE), 17, 100, 103, 110 Strategies for Effective Police Stop and Search (STEPSS), 17, 100, 102 Unified Police Union (SUP), 101 Stop and search, 3, 4, 8, 11, 12, 14, 17–21, 27, 30–34, 40, 43, 51, 74, 75, 77–81, 85, 87–93, 97–114, 125, 136, 175, 183, 184, 187, 188, 199, 202, 203, 205, 214, 215, 223–241, 245–249, 253, 256, 258–260,

343

267–270, 279, 283–285, 289–306, 311–334 Suspicion, 4, 19, 30–32, 44, 51, 52, 55, 57, 58, 67, 70, 79, 105, 123, 127, 134, 165, 199, 200, 205, 211, 212, 214, 247–249, 251, 253–256, 258, 259, 269–271, 275, 291, 312–317, 321, 327–332 suspicionless searches, 5, 312, 314–318, 320–323, 327, 328, 330–332 T

Terrorism Irish Republican Army (IRA), 315, 318 Red Army Faction (RAF), 5, 247, 252, 322 Training, 8, 16–19, 17n1, 22, 68–70, 86, 131, 134, 135, 143, 175, 183, 184, 189, 191, 197, 198, 204, 208, 215, 230, 236, 237, 260, 292, 295, 299, 301–303, 305, 329, 330 W

Wales, see England and Wales