[FRA, A-1060 Vienna; Rahlgasse 3] ANNEX A.1 FRA2-2007-3200-T02 Ethnic Profiling Project TECHNICAL TENDER SPECIFICATIONS / TERMS OF REFERENCE Page 1 of 16
1. BACKGROUND INFORMATION 1.1. Ethnic Profiling Defining the practice Ethnic profiling can be understood to mean: actions initiated by agents/officials of the State (such as immigration, border control, customs officials and law enforcement) that treat people differently solely on the basis of their real or assumed race, ethnicity, religion or national origin, rather than responding to the behaviour of an individual, a suspect description or other intelligence. As defined above, ethnic profiling practices are discriminatory, because they infringe on people s fundamental right to equal and non-discriminatory treatment before the law. Note: Ethnic profiling should not be confused with ethnic monitoring, which should be undertaken with the individual s consent and according to data protection laws that allow for anonymous gathering of sensitive information for statistical purposes such as a person s self-identified race, ethnicity, national origin or religion with the purpose of using this information to highlight discriminatory practices; for example, discriminatory practices in employment, education, housing and by agents/officials of the State. To this end, ethnic monitoring could become ethnic profiling when information about an individual s race, ethnicity, religion or national origin is gathered without their consent and is used in isolation, without other supporting evidence, to inform decisions about, for example, who to stop and question or stop and search on suspicion of potential wrongdoing or having broken the law. As an illustration, ethnic profiling can emerge as: A consequence of direct instructions to stop and question or stop and search specific population groups; A consequence of prejudice leading to conscious and/or unconscious stereotyping on the part of individual state agents/officials, such as immigration, border control or customs officials;
A reflection of a discriminatory culture within a public institution - institutional racism. Ethnic profiling can manifest itself in a number of ways and in a variety of contexts; for example: Profiling practices could be used, where random identification checks are permitted, in the context of checking the legality of persons residing in a state. Profiling practices have been used at airports, seaports and border crossings in an effort to identify people carrying illegal drugs and other unlawful goods. Profiling practices have, in the aftermath of September 11th 2001 and subsequent terrorist attacks in Europe, increasingly been employed in an effort to subvert the threat of terrorism. There is evidence to indicate that the above practices impact disproportionately on legally resident minority ethnic and immigrant groups, and, in particular, on those who are visibly different. There is also evidence to indicate that ethnic profiling practices are unlikely to identify criminals and, as a result, allocate criminal justice resources inefficiently. In turn, there is a serious risk that the specific practice of ethnic profiling can serve to alienate individuals and entire communities who are subjected to disproportional attention from state agents/officials, which is not supported by intelligence that directly attributes illegal activities to certain individuals within a group. Ethnic profiling can enhance feelings of social marginalisation among affected communities. There is also historical and empirical evidence, primarily from the UK 1, to support the assertion that over-policing of certain communities may, potentially, influence manifestations of resentment that can spill over into urban unrest and rioting. In the context of current concerns about the overuse of ethnic profiling against members of the Muslim or Arab communities in Europe, consideration should also be given to whether such experiences of profiling are linked to the development of support for and/or manifestations of violent radicalisation. 1 See 'Brixton disorders 10-12 April 1981: report of an inquiry by the Right Honourable The Lord Scarman' (1981) HMSO (UK government); see also 'The impact of stops and searches on crime and the community' (2000) Police Research Series Paper 127, Home Office, at - http://www.homeoffice.gov.uk/rds/prgpdfs/prs127.pdf.
1.2. Ethnic Profiling international acknowledgement of the problem The practice of ethnic profiling is not a new phenomenon, but it has come to increasing prominence in the European Union in recent years as a reflection, primarily, of the following two factors: Concerns about increased illegal immigration into the EU and movement of illegal persons within the EU; The threat posed by terrorism in the aftermath of September 11th 2001 and the subsequent terrorist bombings in Madrid (March 2004) and London (July 2005). The United Nations, the Council of Europe and the European Commission have all turned their attention to ethnic profiling practices as a particular area of concern with respect to discriminatory practices. In turn, international NGOs - such as Amnesty International, Human Rights Watch and the Open Society - have increasingly also been focusing on the problem of ethnic profiling. United Nations Committee on the Elimination of Racial Discrimination (CERD) The UN s Committee on the Elimination of Racial Discrimination has variously addressed discriminatory police and immigration practices - including the policing of terrorism and infringements of innocent people's human rights - in its regular reports on countries' human rights compliance. With respect to the issue of racial profiling CERD states, in General recommendation XXXI On the prevention of racial discrimination in the administration and functioning of the criminal justice system 2 (paragraph 20), that States parties should take the necessary steps to prevent questioning, arrests and searches which are in reality based solely on the physical appearance of a person, that person s colour or features or membership of a racial or ethnic group, or any profiling which exposes him or her to greater suspicion. 2 available at http://www.ohchr.org/english/bodies/cerd/docs/gc31rev_en.pdf
Council of Europe (ECRI) ECRI s general policy recommendation No.8 (2004) on Combating Racism while Fighting Terrorism recommends to governments of Council of Europe Member States 3 To ensure that legislation and regulations, including legislation and regulations adopted in connection with the fight against terrorism, are implemented at national and local levels in a manner that does not discriminate against persons or groups of persons, notably on grounds of actual or supposed race, colour, language, religion, nationality, national or ethnic origin and, with this in mind, to pay particular attention to Checks carried out by law enforcement officials within the countries and by border control personnel. European Commission The Commission Recommendation establishing a common Practical Handbook for Border Guards (Schengen Handbook), to be used by Member States competent authorities when carrying out the border control of persons, states, under Section 1 Border check procedures, that 4 : Fundamental rights enshrined in the European Convention on Human Rights and the Charter of Fundamental Rights of the EU must be guaranteed to any person seeking to cross borders. Border control must notably comply with the prohibition of inhuman and degrading treatment and the prohibition of discrimination enshrined, respectively, in Articles 3 and 14 of the European Convention on Human Rights and in Articles 4 and 21 of the Charter of Fundamental Rights of the European Union. In particular, border guards must, in the performance of their duties, fully respect human dignity and must not discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Also, the EU Network of Independents Experts on Fundamental Rights, which was set up by the European Commission at the request of the European Parliament, produced 3 http://www.coe.int/t/e/human_rights/ecri/1-ecri/3-general_themes/1- policy_recommendations/recommendation_n8/recommendation_n%c2%b0_8_eng.pdf adopted 17-03-2004. 4 Commission Recommendation C (2006) 5186 final, Brussels 06/Xi/2006
an Opinion paper in December 2006 on Ethnic Profiling. The paper states that 5 : Under Article 14 of the European Convention on Human Rights, no difference in treatment which is based exclusively or to a decisive extent on a person s ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures. To this end, as illustrated by the above examples, ethnic profiling has received international recognition as a discriminatory practice. 1.3. Building on the Agency s work related to ethnic profiling The European Union Agency for Fundamental Rights (FRA) was created in February 2007 as successor to the European Monitoring Centre on Racism and Xenophobia (EUMC), which was founded in 1998 with the mandate to provide the European Community and its Member States with objective, reliable and comparable data and information on the phenomenon of racism and xenophobia in Europe. From 2000 the EUMC collected data and information on racism and xenophobia, focusing among other things on racist violence and crime through its RAXEN (Racism and Xenophobia European Information Network), consisting of a National Focal Point (NFP) in each Member State. With respect to information in the area of racist violence and crime, a number of RAXEN reports highlighted the fact that law enforcement officers, as well as border control and immigration officers, have on occasion acted in a discriminatory way towards immigrant and ethnic minority groups - in particular against visible minorities. In some cases, as related in the EUMC's Annual Reports 2005 and 2006, it has been reported that State agents/officials have, on occasions, also been perpetrators of violent (racist) acts and, reflecting this, the EUMC has pointed to some disturbing discriminatory practices with respect to such abuses of power. At present the practice of ethnic profiling is grossly under-documented and underresearched in the EU. Recognising that the experiences of 5 Ref.: CFR-CDF. Opinion4.2006, Executive Summary, page 6.
immigrant and ethnic minority groups with immigration, border control and law enforcement are under-documented in Europe, the EUMC launched a pilot Victim Survey in 2006 to investigate, among other things, immigrants and ethnic minorities experiences of being stopped, together with their general experiences of and attitudes towards these encounters. The pilot Victim Survey is based on a standardised questionnaire instrument, and has been conducted in six Member States - Austria, Belgium, Bulgaria, Italy, Romania and Slovakia on randomly sampled members of selected immigrant and ethnic minority populations. The pilot survey s results are able to show the extent and nature of respondents experiences of stops, together with the quality of these stops, and attitudes towards encounters with law enforcement for those selected immigrant and ethnic minority groups in the Member States surveyed. Building on the results and analysis of the pilot Victim Survey s questions on stops, the Agency is implementing a project specifically on ethnic profiling practices. The project will examine the results of the pilot survey, and will also look at relevant law enforcement practices (e.g. immigration, border control, customs, etc) in the context of wider practices that impact on ethnic minority and immigrant groups. The Agency has also pointed to a number of positive policing initiatives in some Member States that variously set out to assist victims of racism (see online InfoBase 6 and 2005 publication Policing Racist Crime and Violence ). In this context the Agency sets out to highlight positive initiatives that serve to combat racism and xenophobia, assist victims of racist violence and crime, and improve community relations with the relevant public authorities. This project aims to contribute to the efforts for improved EU level cooperation in the area of immigration, border and customs control and, to this end, should be developed with a view to other documents such as the Commission s Recommendation establishing a common Practical Handbook for Border Guards (Schengen Handbook). The outcome of this project can also be viewed alongside initiatives by Member States to implement the Race Equality Directive in practice. In addition, the project will support efforts to enhance a European and fundamental rights dimension to law enforcement training initiatives 7, supporting particularly the efforts of FRONTEX 8 and CEPOL 9 to provide appropriate training for border control, immigration and law enforcement officers with respect to developing democratic safeguards in a multi-ethnic and diverse European society. 6 http://www.infobase.fra.europa.eu 7 More information at http://ec.europa.eu/justice_home/fsj/police/college/fsj_police_college_en.htm 8 See http://europa.eu/agencies/community_agencies/frontex/index_en.htm 9 For example, CEPOL offers training on human rights and police ethics, for more information see http://europa.eu/agencies/pol_agencies/cepol/index_en.htm
2. PROJECT OUTLINE In the tender application, the tenderer must outline clearly how they intend to address each aspect of the project as set out in sections 2.2 through to 2.6 in these terms of reference. The description and approach outlined in the tender application must be realistic and aimed at policy-driven output addressing the Agency s primary stakeholders, such as the European Commission, the European Parliament, and the Member States. 2.1. Legal basis The project is undertaken within the scope of the provisional Work Programme 2007 implementing the Agency s mandate, as established by Council Regulation (EC) No 168/2007, which states in Article 5. 2. b. that the multi-annual framework determining the thematic areas of the Agency's activity must include the fight against racism, xenophobia and related intolerance. 2.2. Project objective and tasks Objective: To develop a handbook entitled Addressing Ethnic Profiling: A Good Practice Handbook. Specifically, the Handbook shall contain: categorisation of EU Member States according to their stage of development with respect to recognition of and responses to profiling practices, based on available indicators from a range of sources that extend beyond narrow references to profiling practices; identification of profiling good practices in Member States, and relevant case studies; an outline of models for multi-agency responses to profiling practices. In order to fulfil this objective the following tasks should be carried out: i. To examine existing research literature, policy documents and initiatives, as well as relevant legislation, which addresses ethnic profiling (at national, European and international level), and to incorporate the findings in the Handbook.
ii. To examine findings from the FRA s pilot Victim Survey with respect to respondents experiences of stops and their attitudes towards law enforcement, and to incorporate aspects of these findings in the Handbook, as appropriate. iii. To conduct interviews with selected actors and agencies in the six Member States, where the Victim Survey was conducted, in order to identify and discuss key issues and proposals with respect to ethnic profiling practices, and to incorporate the findings in the Handbook, as appropriate. iv. To explore the idea and practicality of, and challenges for, multi-agency partnership models for addressing ethnic profiling, and to incorporate the findings in the Handbook. v. To take into consideration the work of other EU institutions and other agencies that may be of relevance to the subject and content of the Handbook. vi. To highlight the need for efficient, effective and equitable law enforcement, immigration and border control that is non-discriminatory and respectful of fundamental rights, and to incorporate this theme centrally in the Handbook. 2.3. Work-programme i. Methodology and project development It is anticipated that the above project tasks shall be addressed in the following way: Stage 1: Identify, summarise, critically assess and compare practices and initiatives related to ethnic profiling in EU Member States. Identify relevant good practices and case studies in Member States. Identify and summarise existing research literature, policy documents and initiatives, as well as relevant legislation at national, European and international level.
Stage 2: Interpret the meaning of statistical results from the Agency s pilot victim survey with respect to ethnic minority and immigrant respondents experiences of stop practices (data analysis by FRA). Stage 3: Conduct interviews with selected key actors/agencies to identify important issues with respect to ethnic profiling practices, good practices, and possible future initiatives in Member States (see 2.3.ii.). Interviews: Interviews shall be conducted with key selected actors/agencies face to face, over the telephone or through videoconference. The Agency will, where necessary, provide the successful tenderer with support for establishing contact with potential interviewees. Interviews should cover the countries in the Agency s pilot victim survey: Austria, Belgium, Bulgaria, Italy, Romania and Slovakia. In addition interviews could also be conducted in other countries, and, in particular, the UK, which has built-up an extensive response to ethnic profiling. Note: all costs of any interviews (travel, accommodation, fees etc.) must be included in the tenderer s total price offer. Stage 4: Combine the findings of Stages 1 to 3, above, to categorise each EU Member State according to its stage of development with respect to recognition of and responses to ethnic profiling, including relevant legislation, and support this categorisation with evidence based on a range of available indicators that extend beyond narrow references to profiling practices (such as police-community initiatives). Include evidence of good practices and case studies in support of this categorisation. Outline models for multiagency responses to profiling practices with a view to developing an integrated strategy for effective and equitable law enforcement responses to vulnerable minorities, which centrally incorporates the needs of civil society and respect for fundamental rights. ii. Multi-Agency partnerships
The project must develop a series of good practice models to explore the current role and potential for inclusion of different actors/agencies in the development of multiagency partnerships for addressing and responding to the practice of ethnic profiling. These multi-agency models should form a core component of the Ethnic Profiling Handbook. Therefore, particular attention must be paid to the different interests including the rights and responsibilities of various actors/agencies that are both directly and indirectly involved in aspects of ethnic profiling practices and their outcomes. Key actors/agencies for consideration include: Civil society - primarily organisations representing immigrant and ethnic minority interests; Agents of the States such as law enforcement, immigration, border control or customs officials; EU agencies primarily those engaged in relevant operational work; for example FRONTEX (the European Agency for the Management of Operational Cooperation at the External Borders) and CEPOL (the European Police Training College). 2.4. Project deliverables The successful tenderer must frame the project's deliverables with reference to other key documents produced by the European Commission such as the Commission Recommendation establishing a common 'Practical Handbook for Border Guards', which this project's main deliverable (the Handbook) could complement. To this end, the project should give equal consideration to profiling practices and policies involving both border and immigration control, alongside other law enforcement practices that have been the traditional focus of research on profiling to date.
Within the overall timeline of the project, 12 months from signature of contract, reporting by the successful tenderer will take the following forms: i. An inception report ii. An interim report iii. A final report iv. A handbook - Addressing Ethnic Profiling: A Good Practice Handbook v. Monthly updates vi. Other deliverables Specifically, the deliverables are expected to take the following form: i. Inception Report Within two weeks after contract signature the Agency will convene an inception meeting with the successful tenderer at its headquarters in Vienna to discuss details of the project, as addressed in the terms of reference and set out in the successful tender proposal. If deemed necessary by the Agency, certain aspects of the successful tenderer s proposal can be altered and agreed during the course of the inception meeting. The overall period of the contract 12 months from signature of contract cannot be changed. However, the specific dates for deliverables, which should be provisionally set out in the tender offer, will be finally agreed during the inception meeting. The price offer, which forms part of the original tender proposal, cannot be changed. Any other changes, which are agreed between the Agency and the successful tenderer at the inception meeting, will be set out by the successful tenderer in a brief inception report to be submitted to the Agency within 5 working days after the meeting. The inception report shall be limited to a maximum of 10 A4 pages (excluding tables, which can be included as annexes); Times New Roman, 12 font, single spaced. The Agency will provide feedback on its content within 10 working days of its receipt, and a revised version must be returned within 5 working days.
ii. Interim Report The successful tenderer will submit an interim report to the FRA (in electronic format) covering the following points: Progress with the project work-programme, including interviews, and with respect to the project objective to write a handbook on Addressing Ethnic Profiling: A Good Practice Handbook ; A preliminary introduction to the project s findings; Expected length: 10 pages max (excluding tables, which can be included as annexes); Times New Roman, 12 font, single spaced; The Agency will provide feedback on the content of the interim report, within 14 working days of its receipt. The revised interim report must be returned within 5 working days. iii. Final Report The successful tenderer will submit a final report to the FRA (in electronic format), which will describe the overall progress of the project, covering the following points: Outlining the overall project work-programme and lessons learned with respect to achieving the main project objective to write a handbook on Addressing Ethnic Profiling ; Expected length: 15 pages max (excluding tables, which can be included as annexes); Times New Roman, 12 font, single spaced; The Agency will provide feedback on the content of the final report, within 14 working days of its receipt. The revised final report must be returned within 5 working days. iv. Main project deliverable: Handbook The successful tenderer is responsible for the content and format of the Handbook, which will be agreed with the Agency. The Handbook shall categorise EU Member States according to their stage of development with respect to recognition of and responses to profiling practices,
based on available indicators from a range of sources that extend beyond narrow references to profiling practices (such as police-community initiatives); The Handbook shall identify profiling good practices and relevant case studies in Member States; The Handbook shall outline and examine the feasibility of multi-agency models for responding to profiling practices in Member States in the context of each Member State s current profiling categorisation (stage of development); The Handbook is primarily intended for reference by actors/agencies that work directly with aspects of ethnic profiling; namely: law enforcement, immigration, border control or customs officials (agents/officials of the State), as well as civil society organisations in the Member States of the European Union; Expected length: a maximum of 140 A4 pages (excluding tables, which can be included as annexes); Times New Roman, 12 font, single spaced; The Agency will provide feedback on the content of the Handbook, within 14 working days of its receipt. The revised Handbook must be returned within 14 working days. v. Monthly Updates These should be delivered as brief e-mails to the Agency s project manager, and should document overall project progress, which should be supported by regular e- mail and telephone contact. Monthly updates are also intended to act as an early warning system for any difficulties encountered in an effort to pre-empt and counter any challenges. vi. Other Deliverables The successful tenderer must submit to the Agency an outline of questions that will be asked in any interview conducted as part of the project. Reporting Style All reports must be written in a clear, unambiguous and straightforward style, providing information and analysis that can be readily understood by non-academics. Therefore, an overly academic or scholarly style is inappropriate. The style and presentation must be, as far as possible, simple and free of jargon that obscures rather than promotes meaning to readers unfamiliar with it.
The interim report and final report should be written according to the Agency s standard guidelines for submission of written material. NOTE: The results of the project are the property of the Agency. The contractor responsible for implementing the project and drafting the Handbook will be identified in the preamble of the Handbook. 2.5. Project Management and Quality Control i. The tenderer must clearly indicate how they intend to manage and implement the project at each of its key stages. ii. Where more than one individual is involved in implementing the project, a contact person responsible for informing the Agency about all developments and deliverables relating to the project must be identified. iii. Particular attention should be paid to managing the project with respect to different languages in Member States. The tenderer must demonstrate a capacity to accommodate language differences with respect to interviews and information analysis. NOTE: English is the working language of the Agency, and all deliverables must be submitted in English to a high standard. iv. The tenderer must clearly indicate structures for managing and ensuring the project s quality, as well as provisions for risk assessment and measures to address identified risks.
v. During the course of the contract period two meetings are envisaged between the successful tenderer and the Agency one inception meeting at the start of the contract period and one final meeting at the end of the contract period - where the successful tenderer will be asked to present and discuss the project with members of the Agency. These meetings will serve as platforms for the exchange of information and project development in the context of quality control, and will supplement information communicated through the monthly updates. All meetings will take place in Vienna at the Agency s headquarters. In the course of the project period the Agency may send a member/s of its staff to observe fieldwork (e.g. interviews). The successful tenderer should expect that the European Court of Auditors and the European Anti-Fraud Office could seek access to all documentation relating to the project and, therefore, must keep copies of all relevant and related documents. 2.6. Proposed timeline i. The tender application must present an overview of the project s proposed timetable including key milestones based on a 12 month period from signature of contract through to delivery of all deliverables. ii. The timetable should indicate clearly the proposed period to be devoted to all aspects of the project, as outlined in the section Work-programme in these Terms of Reference. iii. iv. The timetable should indicate clearly all meetings and proposed dates for deliverables. The timetable should indicate clearly when the different stages of the project will be implemented.