So what does “characteristic appearance” mean if not ethnic profiling?

A disappointing ruling from a Kharkiv court of appeal regarding the legitimacy of the actions of the Kharkiv metro police in stopping people to check their documents on disputed grounds

What should have been an important court hearing was held in Kharkiv on 29 July. What was in question was the legitimacy of the actions of the Kharkiv metro police in stopping people to check their documents on disputed grounds.  Disputed because the claimant alleges that he was detained because of his ethnic origin and the head of the metro police appeared to confirm this, yet neither first instance nor appeal court agreed.  They did not, however provide other grounds since no specific accusations were made and no charges brought.  The courts also paid no heed to the claimant’s statement that he was often stopped.

The case involved an appeal brought by Kharkiv resident, Viacheslav Manukian against a first instance court which had rejected his civil suit against top management of the Metro Police. 

Mr Manukian says that he is regularly stopped and asked for identification. "Since there are no grounds, reasons or causes for systematically "checking my identity", I have every justification for assuming that this behaviour is linked to my ethnic origin and my appearance".

The civil suit had asked the court to declare unlawful the actions of the police when they stopped him in the metro and took him for questioning to police premises. There were various specific complaints such as that his details were noted in the police log book, that he was not informed of his rights and others. 

Mr Manukian had pointed out that the behaviour of the police breached the Law "On the police" which states that a person is only detained on suspicion of having committed a crime or offence.  He had also appealed against the behaviour of the head of that metro police department who had on 28.12.2006 answered in writing that the reason for Mr Manukian’s being detained had been his "characteristic appearance".

The Kharkiv District Administrative Court rejected Mr Manukian’s claim with a long list of arguments, for example, that the metro had strategic significance for the economy and security of the State, and that the police were responsible for public order, safety etc.

This first court stated that the law had been adhered to since the log book stated that Mr Manukian had been stopped on suspicion of having committed an offence. 

The court ruling of 29 July cites many laws regarding the right of the police to stop and check the documents of people suspected of a crime.  This was not, in fact, in dispute.  Mr Manukian stated consistently that he had been stopped because of his appearance, and indeed this was confirmed in writing.

The panel of judges agreed with the conclusions of the first instance court which found no justification in Mr Manukian’s call for the actions of the respondents to be declared unlawful and discriminatory.  The panel of judges stated that the claimant’s assertion that he had been stopped on the grounds of his ethnic origin was based on supposition.  It went on to say that the claimant had made "an incorrect assessment" of the words of the head of the metro police about his "characteristic appearance", and that this had not meant only ethnic origin but everything about his external appearance. "The subjective assessment of such external appearance of the claimant had been the grounds for the police officer to feel prompted to carry out action to identify an offender."

The judges also rejected the claim against the entry in the log book, yet once again on the grounds that such entries are envisaged by law, without touching on the issue of whether there were any grounds for believing that Mr Manukian had committed an offence.

However the appeal court found that the first instance court had not given a correct assessment of the actions of the police officer who had breached the law by not informing Mr Manukian of his rights, and had not explained the grounds for his being stopped.

It concluded that there had not been proper fulfilment of the police officer’s duties when detaining Mr Manukian on 27 November 2006.  Under these circumstances the first instance court should not have fully rejected the claim.

The panel of judges therefore partially allowed the appeal against the ruling of the Kharkiv District Administrative Court from 27 March 2008 by declaring the failure of the police officer involved to inform Mr Manukian of his rights when detaining him.

The court rejected the rest of the appeal.

Halya Coynash, KHPG

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