JOINT CONCURRING OPINION OF JUDGES Elósegui and Serghides

1. We completely agree with the entire judgment, its reasoning and its conclusions. This separate concurring opinion aims to provide details of some additional information available to the Court in this case, and especially the reasoning of the Spanish domestic authorities, including the action taken by the courts dealing with the different sets of proceedings.

2. The two cases which the Chamber of the Third Section has decided on the same day – Muhammad v. Spain (no. 34085/17) and Basu v. Germany (no. 215/19) – followed the Court’s case-law as set out in Nachova and Others v. Bulgaria ([GC], nos. 43577/98 and 43579/98, § 157, ECHR 2005-VII), Stoica v. Romania (no. 42722/02 § 126, 4 March 2008), and the more recent cases quoted in both judgments delivered today (see Basu , cited above, §§ 38-41, and paragraphs 91-95 of the present judgment). This has confirmed the view that the reversal of the burden of proof requires the applicant to provide prima facie evidence of the discrimination (see paragraph 94 of the present judgment).

3. In both judgments it has been clear that the current case-law of the Court is in line with ECRI’s General Policy Recommendations nos. 7, 11, 15 and Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (“the EU Race Equality Directive”), Recital 21 of which provides:

“The rules on the burden of proof must be adapted when there is a prima facie case of discrimination and, for the principle of equal treatment to be applied effectively, the burden of proof must shift back to the respondent when evidence of such discrimination is brought” (see paragraph 41 of the judgment)

4. It is still necessary for there to be prima facie evidence of such discrimination. Even in criminal cases of gender-based violence or in the context of domestic violence, the criteria have been the same. The shifting of the burden of the proof requires first that the alleged victim should provide some evidence (see Volodina v. Russia , no. 41261/17, § 117, 9 July 2019). In Volodina , we were both members of the Chamber and we voted in favour of finding a violation of Article 3 in conjunction with Articles 13 and 14. In that case, the police refused to open a criminal investigation in connection with the applicant’s allegations. In the present case, Muhammad v. Spain , the authorities did not display a passive attitude. The judges and prosecutors opened the respective proceedings. Furthermore, the applicant’s complaint to the Court referred to Article 8, and not Article 3. Moreover, under Spanish law, criminal proceedings can be instituted not only by the State, but also by the victim as a private prosecution. If a criminal remedy is required, it may be initiated by the victim (contrary to some other criminal legal systems; see Sabalić v. Croatia , no. 50231/13, § 105, 14 January 2021), and then the State pursues the matter through the investigating judge and the prosecutor.

5. In relation to police checks and facts creating a presumption of racial/ethnic discrimination, it is very important to distinguish, as the EU Race Equality Directive and ECRI do, between criminal liability and administrative or disciplinary sanctions. The criminal law does not allow the burden of proof to be shifted to the defendant. The presumption of innocence prevents the use of such a technique.

6. This point is extremely important. As we can see in the present case, there were two different sets of judicial proceedings, one criminal against the two police officers, where the racial intent of the police was not proven, and the other administrative, in which the applicant was unable to provide any prima facie evidence of racial discrimination.

7. According to ECRI’s General Policy Recommendation no. 7, the sharing of the burden of proof is applied in relation to administrative proceedings and disciplinary sanctions, but never in criminal matters. When the Recommendation speaks about “presumed discrimination”, it means that the complainant has to present some evidence of prima facie discrimination in administrative or disciplinary proceedings, and the shifting of the burden to the defendant does not apply in criminal proceedings. The text of ECRI’s recommendation is very clear (see paragraph 29 of the Explanatory Memorandum to ECRI General Policy Recommendation no. 7):

“A shared burden of proof means that the complainant should establish facts allowing for the presumption of discrimination, where upon the onus shifts to the respondent to prove that discrimination did not take place. Thus, in case of alleged direct racial discrimination, the respondent must prove that the differential treatment has an objective and reasonable justification.”

8. The EU Race Equality Directive provides in Article 8 (Burden of proof):

“1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.

2. Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs.

3. Paragraph 1 shall not apply to criminal procedures.

4. Paragraphs 1, 2 and 3 shall also apply to any proceedings brought in accordance with Article 7(2).

5. Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case.” (see paragraph 41 of the judgment)

9. The case-law of the Court is in line with these recommendations and it is necessary to show some prima facie evidence before shifting the burden of proof to the State.

10. The conclusion of the judgment is that the Spanish State has complied with all its positive and negative obligations, and that the investigation was impartial and was carried out in two sets of proceedings, one criminal and the other administrative, and not only internally by the police themselves, but by the investigating judge, with the intervention of the public prosecutor, and by the administrative court (unlike in the Basu v. Germany case, decided by the same Section on the same day, and in which we both voted in favour of finding a violation of Article 8 in conjunction with Article 14). In the present case, the Court “sees no reason to depart from the domestic courts’ conclusion that the applicant’s attitude, and not his ethnicity, was what caused the police him to stop him and to identify him” (see paragraph 99 of the judgment). Therefore, it has remained proven that the basis of the identity check was the applicant’s provocative behaviour and that the police put forward a reason for carrying out a check on that particular person (ibid.).

11. It is important to emphasise that the two police officers who requested the documentation from the applicant on 29 May 2013 immediately completed a complaint record for the administrative offence under Article 26 (h) of Institutional Law no. 1/1992 of 21 February 1992 on protection of public safety, which was delivered to the Sub-directorate General for Internal Security (Barcelona) that same day (see paragraphs 8 and 21 of the judgment), as noted in the report by the Technical Office of the Catalonia Police Headquarters, in which it was already stated that the reason for the request for the identity document had been the applicant’s own conduct. In reality, the context in which the applicant was asked for his identity card was not even a situation in which documentation would normally be requested (such as at a border crossing, an airport or a train or bus station).

12. In that connection, although the applicant had lodged a handwritten criminal complaint with the Barcelona investigating court no. 3, he instituted domestic administrative proceedings almost one year after the events, on 7 April 2014 (see paragraph 18 of the judgment). The fact that the administrative proceedings started one year after the events is therefore not attributable to the authorities, but to the applicant himself.

13. The two police officers acted in a transparent way from a legal point of view, filing a written record of the report on the same day of the events. In contrast, the applicant refused to sign both the register of identification procedures and the complaint record. The Directorate General of Police and the Civil Guard responded to the request for information regarding the State liability claim, in connection with the actions of officers of the National Police Corps, within three days from the filing of that claim (see paragraph 21 of the judgment). The Directorate General of Police made available to the authorities: a photocopy of the register of identification procedures; the record drafted at the time, giving an account of the facts; and a copy of complaint record no. 837683, delivered to the Sub-directorate General for Internal Security.

14. It should also be noted that the applicant was heard on several occasions: orally in the criminal proceedings and in writing through his lawyer in the administrative proceedings. During the criminal proceedings, the investigating judge (see paragraph 13 of the judgment) agreed to take a statement from the applicant as a victim and his friend as a witness, plus the two police officers as defendants. His friend’s testimony was taken into account in both the criminal and the administrative proceedings because in both sets of proceedings the statements the friend had given to a Barcelona notary as a witness to the events were provided. In the criminal proceedings, the friend was summoned by the investigating judge, but because the address provided was incorrect, he did not receive the summons (see paragraph 15 of the judgment), a fact which is also not attributable to the judicial authorities. The investigating judge, having examined the evidence, was not convinced that the events had taken place in accordance with the applicant’s account. The Barcelona Audiencia Provincial examined the preliminary investigation conducted by the investigating judge, deciding that the provisional decision in the proceedings was entirely lawful and declaring the appeal inadmissible (see paragraph 16 of the judgment).

15. It is also important to note the arguments of the public prosecutor in requesting, on 23 April 2015 (see paragraph 16 of the judgment), the discontinuation of the proceedings in relation to the applicant’s complaint against the two national police officers for an alleged crime of abuse of authority in the exercise of their duties, after the investigating judge had carried out the preliminary investigations. Once the evidence presented had been examined, the prosecutor submitted as follows: “(i) ... there is no medical report (about any harm or injury); (ii) the investigation has been completed and no corroborating evidence has been obtained from the complainant’s version; (iii) steps have been taken to determine whether there were cameras that could have recorded the events and the result has been unsuccessful; (iv) the complainant was accompanied by another foreign person of Pakistani origin, who, however, has not alleged any discriminatory treatment or abuse of authority by the police; (v) Mr K.A, apparently an eyewitness to the facts, has not been able to be located in order to give evidence; and (vi) there are contradictory versions that do not allow us to determine the reality of the facts; by this, we are not saying that the complainant is lying but that his testimony is not endorsed by relevant supporting evidence that complements it” (submissions by the Barcelona Provincial Prosecutor to the Barcelona investigating court no. 3, 23 April 2015; document in the case file).

16. The prosecutor concluded by submitting as follows:

“All testimonial statements must meet the requirements demanded by the case-law in order to be taken into account: absence of subjective lack of credibility derived from a spurious motive; verisimilitude corroborated by peripheral circumstances; and persistence in the allegation of the offence. In short, and applying the case-law of the European Court of Human Rights, which requires an in-depth and effective investigation of all incidents that may have a racist, xenophobic or other discriminatory motive (ECHR, [B.S.] v. Spain , no. 47159/08, 24 July 2012, or Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, [ECHR 2005-VII], all lines of inquiry have been exhausted to try to clarify the facts without it having been possible to obtain sufficient incriminating evidence to be able to bring criminal charges against the persons against whom the complaint was directed.” (ibid.)

17. The applicant applied to the Ministry of the Interior to establish liability on the part of the State authorities. Thus, he brought a State liability claim, seeking compensation for the damage he had needlessly suffered as a result of what he considered the abnormal functioning of the public services.

18. In the administrative proceedings, the applicant was given a hearing and also the opportunity to present further allegations and evidence. Nevertheless, in administrative proceedings to establish possible State liability, it is for the claimants to produce evidence of the alleged violation. In many countries, such as France, Spain, Luxembourg or Switzerland among others, in administrative proceedings for State liability, the judges rely on written documents and evidence. The claimants are represented by their lawyers and it is not usual to call them as witnesses at an oral hearing.

19. According to the administrative record, the applicant complained that the police had asked only him for identification, and not the white people who were walking down the same street as him (see paragraph 18 of the judgment). However, throughout the domestic proceedings it was proven that his friend, who was also Pakistani and dark-skinned, had not been asked for identification. This evidence confirms the police officers’ account that the request for documentation was made only to him because of his provocative behaviour and not because of the colour of his skin. In the present case, unlike in Basu (cited above), in which the police requested the passport of both a father and his daughter on a train, there is an important element that allows us to conclude that, as was stated by the domestic authorities, “the applicant’s friend K.A. was not asked to show his identity documents since he had not made any comments to the police” (see paragraphs 9 and 21 of the judgment).

20. Although the criminal proceedings were already open, the applicant argued in the administrative proceedings that the object of the latter proceedings was different because the administrative claim related to the discriminatory nature of the identity check performed on him. In short, in the administrative proceedings, the applicant sought an acknowledgment that the police check had been based solely on his race and was discriminatory and illegal, and as a consequence, an award of 3,000 euros in compensation, a public apology and publication of the judgment and the consequent apology in national newspapers. The administrative authorities agreed to open the administrative proceedings for State liability (see paragraph 22 of the judgment).

21. Since criminal proceedings were ongoing before the Barcelona investigating court no. 3 in relation to the same facts, and considering that the result of those proceedings could be of interest for the determination of the State liability claim, the administrative authorities initially requested that the relevant department be provided with the judgment once it was delivered, indicating that the administrative proceedings should be put on hold in the meantime. However, the applicant argued that it was not necessary to wait for the completion of the preliminary investigation being conducted by the Barcelona investigating court no. 3, since the investigation concerned different facts, which were irrelevant for the determination of his claim (ibid.).

22. The Investigative Service of the administrative authorities then decided to continue with the processing of the file. The investigating officer requested the reports issued by the police from the Legal Department of the Barcelona Police Headquarters.

23. As has been established in the proceedings before the domestic courts and before the Court, the police officers were patrolling inside a vehicle on a tourist street where there are frequent robberies (see paragraphs 6 and 8 of the judgment). The applicant stared at the police car, and through the open driver’s window said “Look, the police busybodies!” and started laughing as he was walking away. For this reason the police patrol proceeded to stop him and ask him to identify himself, which the applicant refused to do, answering: “Why? Because I’m black? No way!” Therefore, as provided by the Institutional Law on Public Safety, he was transferred to the police headquarters and recorded under number 4 in the register of identification procedures. Throughout the police action, he maintained a provocative, defiant and cocky attitude, taking out a national identification document for foreign residents (NIE) from his clothes and saying: “I’m giving it to you now because I want to, not because you requested it” (see paragraphs 8-9 of the judgment).

24. There is another official report dated 28 May 2014 from the Directorate General of Police addressed to the Chief of Police of Catalonia, in which it is stated:

“The officers involved in the events (a deputy inspector and a police officer) have already given a statement in their capacity as accused, being assisted by [a] lawyer. After the statement, which was also given in the presence of the prosecutor, the impression is that the dismissal of the proceedings will be agreed again. On the face of it and subject, naturally, to the results of the judicial investigation, the actions of the National Police officers must be characterised as correct, adhering at all times to the legal and ethical standards that govern police action. Indeed, as the aforementioned officers point out, the identification of Mr Muhammad was not based on his physical or ethnic characteristics, quite the contrary, but was motivated by his cocky and disrespectful attitude as the police vehicle passed by. In any case, the alleged police abuse that is complained of stands in contradiction with the fact that it was the officers against whom the complaint was brought who themselves transferred him to the area where he had to take the bus.” (see paragraph 10 of the judgment)

25. In the administrative proceedings, in view of that report and the rest of the documentation in the file, considering the procedure to have been initiated and before proceeding with the drafting of the proposed decision, the court granted a hearing so that within a period of fifteen days the applicant could raise any allegations that he considered appropriate or submit new documents and supporting evidence that he considered relevant. The applicant requested the documents relating to the report, which were provided to him. In a new hearing procedure, the applicant was informed of what had been requested in his written pleadings and reference was made to the evidence adduced. Within the period granted for submitting his allegations, the applicant submitted a document confirming his claim for compensation, although he did not present any new evidence or arguments of legal relevance capable of casting doubt on the criterion for discontinuance already set out in the administrative file.

26. Article 139 of the Spanish Law no. 30/1992, and Royal Decree no. 429/1993 of 26 March 1993, which approves the Regulations on proceedings before the public authorities in relation to financial liability, proclaim the right of individuals to be compensated by the relevant public authority for “any harm caused to any of their property or rights, except in cases of force majeure , provided that the harm is the result of the ... functioning of public services” (paragraph 2 of Article 106 of the Constitution).

27. The following requirements must be met for an action of this kind to succeed:

(a) proof of the reality of the harmful result: “in any event, the alleged harm must be actually incurred, economically measurable and related to a specific person or group of persons”;

(b) the unlawfulness of the harm caused, in that the person affected does not have a legal duty to incur the pecuniary damage produced;

(c) imputability of the activity to the defendant authority, the reference to the “functioning of public services” being understood as covering all kinds of public activity – and also the existence of a direct and actual causal link, it being necessary to specify that for the assessment of liability, the lawful or unlawful nature of the administrative act that causes the damage, or the element of personal fault on the part of the authority or official that causes it, are immaterial; and

( d) absence of the exception applicable in cases of force majeure .

28. According to the Technical Secretary General, who was the author of the administrative decision issued on 6 November 2014 in the present case: “Regarding the burden of proof, it rests on the claimant in accordance with the old aphorisms ‘ semper necessitas probandi incumbit illi qui agit ’, ‘ onus probandi incumbit actori ’, ... applying Article 217 § 2 of Law no. 1/2000 of 7 January 2000 on Civil Procedure to administrative proceedings. ... The burden of proving the damage or loss and the causal relationship between these and the authorities’ actions falls to the injured party.” The same decision adds: “Although it must be recognised that on occasions, the specific circumstances are difficult to prove, it must also be acknowledged that since the legal system makes it a necessity to protect public interests, an attitude of caution is required in order to prevent indiscriminate claims based on mere statements by a party, the consequences of which would have to be borne by the public treasury and, ultimately, by the taxpayers.” (All this is consistent with the case-law criteria established by the Court; see paragraph 94 of the judgment.)

29. To find the administrative authorities liable for the damage caused to individuals as a consequence of the normal or abnormal functioning of public services, it is necessary, as has already been stated, that this be established and proven by the claimant. Therefore, among the requirements, it was necessary in the present case for there to be proof that the events occurred as stated by the applicant, but as has been said, the burden of proof fell to the claimant in accordance with the aphorisms already mentioned and in accordance with the general rules on the burden of proof in Article 217 of the Law on Civil Procedure, which provides: “It shall be for the claimant and for the defendant in the counterclaim to discharge the burden of proving the certainty of the facts from which, in accordance with the legal rules applicable to them, the legal effect of the causes of action of the claim and counterclaim are ordinarily inferred.”

30. But the truth is that in the proceedings in the present case, the detriments and damage that the applicant claimed to have suffered were only supported by his word, with which the police clearly disagreed. In summary, the administrative department dealing with the case considered that the applicant had not proven that an identity check had been carried out on the basis of his physical or ethnic characteristics, as stated in his claim, and found that the failure to discharge the burden of proof could only be attributed to the relevant party – in this case, him. This meant that strict liability could not be attributed to the authorities, which would have entailed an obligation to pay compensation, given that the applicant had not satisfied the aforementioned requirement of the existence of a direct, immediate and exclusive relationship of cause and effect between the alleged damage and the functioning of the corresponding service, and the claim therefore had to be dismissed.

31. The applicant, in his statement of claim before the administrative court, stated the facts and legal grounds he considered applicable, in order to have the contested decision annulled. Once the application for evidence to be taken had been received, the evidence admitted was assessed. In the judicial administrative proceedings, the applicant alleged that a National Police officer had requested his documentation from the window of a patrol car (the first legal ground) and claimed that he had shown it to the officer, which contradicts, in our opinion, the proven fact that the police officers took him to the police station for identification, as was accepted by both parties in the proceedings before the Court and recorded in the police document included in the file before the Court (see paragraph 10 of the judgment).

32. The applicant argued that the police identity check was based exclusively on his racial appearance, against the background of a generalised police practice of using ethnic profiles for identity checks, in support of which he submitted, together with his claim, numerous reports from national and international human rights institutions, NGOs and civil-society organisations. The applicant reiterated the claims that he had made before the administrative authorities, seeking 3,000 euros among other things. The administrative court reiterated the applicable rule: that is, that the harm must be a consequence of the functioning of public services, of an objective nature. It was necessary to prove a causal link between the damage caused and the functioning of public services (see paragraph 27 of the judgment).

33. A notable procedural law issue is that in judicial administrative proceedings to establish liability on the part of the administrative authorities, no steps are taken in order to assess the subjective character of the conduct causing the damage, that is, whether there was fraud or negligence in the performance of public services (see paragraph 72 of the judgment).

34. In its decision of 14 September 2015 the administrative court held:

“Thus, with regard to the case that concerns us, first of all it is evident that the success of the State liability claim cannot be based on reports from international and national institutions for the protection of human rights, the Ombudsman or the United Police Union or on statistical data on the pattern of police detentions, as the appellant insistently claimed both in his application and at the oral hearing, without prejudice to the value [such information] may have in other instances or institutions, since a finding of liability must be based on specific facts that demonstrate that the functioning of public services has caused economically measurable damage that the interested party does not have a legal obligation to bear, proof of which must be fully established by whoever has the burden of proof, namely the person who brings the action, and not by a pattern or objective statistics about the number of people arrested, since the only thing this would offer is a probability and not established proof.” (see also the opinion of the Court on the use of statistics in paragraph 100 of the judgment)

35. The administrative court further held:

“Limiting ourselves, therefore, to the evidence in the records and in the administrative file, the conclusion must be that the administrative appeal is to be dismissed, since we are faced with contradictory versions of the circumstances that motivated the police detention of the appellant, whose version cannot prevail without sufficient evidence for the purposes of assessing his claim. Indeed, in the first place, it must be taken into account that in relation to the same facts, criminal proceedings are being conducted in a Barcelona investigating court, the conclusion of which is not known, at least to us; secondly, an examination of the administrative file (page 91) reveals the report by the deputy inspector of the National Police Corps, in which a very different version is found from the one put forward here by the appellant. Thus, according to the report on page 86 of the file, relating to the identification, it is stated that the individual in question, looking cockily at the police vehicle, said through the driver’s window: ...”

36. It went on to find:

“In turn, on page 89 of the file there is a copy of the register of identification procedures, which shows a refusal to be identified, signed by two police officers, and a note by one of those police officers and a third officer, the senior duty officer, in which it is stated that the person being identified showed the NIE once at the police station. The appeal must be dismissed because the facts on which the appellant based his claim, in view of the evidence that this court has at its disposal, are far from being proven, and therefore the requirements for State liability, as provided in Articles 139 et seq. of Law no. 30/92, are not met.”

37. It is our submission that the relevant evidential rule which is adopted in the judgment, namely that the burden of proof can be shifted to the authorities only when there is a prima facie case of discrimination brought by the applicant, is an aspect of the principle of effectiveness, and this acknowledgment explains why the rule is a constructive one. The principle of effectiveness, which applies not only in interpreting the Convention provisions safeguarding human rights in such a way as to render the rights practical and effective and not theoretical and illusory, should, in our view, also apply in making the evidential rules concerning these rights practical and effective. Otherwise, there will be a risk that the right concerned might not in the final analysis be practical and effective. One aspect of the principle of effectiveness as a method of interpretation is that any interpretation leading to absurdity should be rejected (see also Article 32 (b) of the Vienna Convention on the Law of Treaties). The same aspect of the principle of effectiveness is also important when formulating or adopting evidential rules concerning human rights. Fortunately, the relevant evidential rule is based on logic and common sense and is an aspect of the principle of effectiveness, which rejects any absurdity. Without the existence of the requirement for the applicant to make a prima facie case of discrimination before the burden of proof is shifted to the authorities, the task of the authorities in performing their duties would become excessively difficult, because they would have to prove in every case that every step or action on their part was taken without any discrimination.

38. As we have concluded, in the present case there was an effective investigation and the applicant’s allegation of racial profiling was not substantiated, this omission being attributable to the applicant and not to any failures in the investigation (contrast Basu , cited above, § 43). The police offered a reason for asking for the applicant’s identity document. Moreover, Spain has a comprehensive framework for dealing with situations of racial discrimination in general, and in particular those caused by police officers (see paragraphs 30-37 of the judgment).