DISSENTING OPINION OF JUDGE ZÃœND

1. While I am in full agreement with the applicability of Article 14 in conjunction with Article 8 to the case at hand, I am unable to share the majority’s view that there has been no violation of those provisions.

2. The Court has found that the use of coercive measures to require an individual to submit to an identity check and detailed search of his person amounts to an interference with the right to respect for private life (see Gillan and Quinton v. the United Kingdom , no. 4158/05, § 63, ECHR 2010). Such a measure therefore falls within the scope of Article 8. It is not necessary to decide whether a simple check of a person’s identification papers also falls within the scope of Article 8. For Article 14 to be applicable it is enough for the facts of the case to fall within the wider ambit of private life (see Konstantin Markin v. Russia , no. 30078/06 § 129, ECHR 2012; Thlimmenos v. Greece [GC], no. 34369/97, § 40, ECHR 2000-IV; E.B. v. France , no. 43546/02, §§ 47-48, 22 January 2008; and Fretté v. France , no. 36515/97, § 31, ECHR 2002-I). This threshold is met for an identity check. Article 14 is therefore applicable.

3. The judgment correctly states that there is a duty to investigate an allegation that an identity check had been motivated not by objective reasons but by reasons linked to racial characteristics of the targeted person. I do not deny that in the present case the authorities did investigate the allegations of racial discrimination. There were, however, significant shortcomings in the way the investigations were conducted.

4. First, the administrative and judicial authorities did not allow the individuals present at the scene (the applicant’s friend K.A. and the police officers) to be heard orally (see paragraphs 23 and 26 of the judgment), nor did they consider that seeking video footage of the event was relevant to establish the factual pattern (see paragraph 23 of the judgment). Besides the applicant’s statements, the authorities only admitted written statements from K.A. – before dismissing them – and the police to establish the events of the case (see paragraph 26 of the judgment). The fact that in the parallel criminal proceedings, the police officers were put on trial as defendants and attempts were made, without success, to hear K.A. orally does not rectify that shortcoming: the criminal proceedings were instituted only on the basis of the applicant’s allegations of insults, slapping and forgery, and not in relation to the allegedly discriminatory identity check (see paragraph 15 of the judgment). The allegations of discrimination were therefore not within the scope of the information to be ascertained by the criminal court. The fact that K.A. had provided an incorrect address and could not be summoned to provide oral testimony in the criminal proceedings is therefore immaterial to the failure to hear him in the administrative proceedings, which were conducted precisely for the purpose of ascertaining whether there had been racial discrimination.

5. Secondly, the administrative authorities found that the applicant’s version of the event was “radically different” from the one presented by the police (see paragraph 24 of the judgment). Because the evidence provided by the parties was “essentially contradictory”, and the applicant could not provide any further evidence to support his version of events, the administrative court, in dismissing his appeal, relied on the police’s statements of a lack of wrongdoing on their part (see paragraph 27 of the judgment). The proceedings were therefore insufficiently thorough or effective to satisfy the procedural positive obligations to investigate required of States by Article 14 in conjunction with Article 8. The judicial authorities rejected any evidence which might have helped clear up the “essentially contradictory” nature of the parties’ statements as to whether the identity check had been discriminatory. In rejecting the applicant’s evidence, they also denied him the opportunity to support his version of events, and then dismissed the case for lack of evidence (see paragraphs 24 and 27 of the judgment). The State authorities therefore failed to sufficiently investigate the allegations of racial discrimination.

6. It is for these reasons that I have voted to find a violation of Article 14 in conjunction with Article 8 as regards the complaint concerning the domestic authorities’ failure to carry out an effective investigation.

7. Once a seriously conducted, thorough and effective investigation shows that there was no other plausible reason for the identity check at the time it was carried out, then it can be assumed that the person subjected to the identity check was targeted on account of race, ethnicity, skin colour or any other specific physical or ethnic characteristics. Such a discriminatory identity check would constitute in itself a violation of Article 14 in conjunction with Article 8.

DISSENTING OPINION OF JUDGE KRENC

1. With regret, I must dissent from the majority’s findings that Article 14 read in conjunction with Article 8 of the Convention has not been violated in the present case.

2. The present judgment rightly emphasises the importance of combating racial discrimination, which “is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction” (see Timishev v. Russia , nos. 55762/00 and 55974/00, § 56, ECHR 2005 ‑ XII).

3. In parallel, it cannot be contested that identity checks for preserving public safety pursue a legitimate aim as regards the Convention. However, when the authorities carry out such checks, people cannot be targeted on the sole grounds of ethnic characteristics (see, mutatis mutandis , Timishev , cited above, §§ 54-59).

I. Positive obligation to carry out an effective investigation

4. As regards the State’s obligation under Article 14 of the Convention read in conjunction with Article 8, the majority highlight the “special duty of investigation” by the authorities in cases where racial discrimination is alleged (see paragraph 65 of the judgment). They consider, nevertheless, that in the present case the respondent State complied with this obligation (see paragraphs 69-76 of the judgment). I am unable to share this conclusion for the following main reasons.

5. First, the majority point out that criminal proceedings were initiated to investigate the facts and that the police officers were heard, and they observe further that the written testimony of the police officers was taken into account in the administrative proceedings (see paragraph 71 of the judgment). However, the criminal proceedings and the administrative proceedings were based on different grounds. As mentioned in the present judgment, the criminal proceedings were not in relation to the allegedly discriminatory identity check (see paragraph 15 of the judgment) [3] .

6. Secondly, the applicant requested that the central administrative court hear K.A., the police officers involved in the impugned identity check and arrest, and an expert witness to explain a report on racial profiling statistics. However, all those requests were dismissed by the central administrative court (see paragraph 26 of the judgment). I also note that the administrative authorities did not consider that seeking video footage would be a relevant piece of evidence (see paragraph 23 of the judgment). The applicant was therefore deprived of a concrete opportunity to support his version of events.

7. Thirdly, the central administrative court ruled that the evidence provided by the parties (namely the applicant and the police) was “essentially contradictory” and that the documents provided by the police stated that there had not been any wrongdoing in the request for the identification of the applicant (see paragraph 27 of the judgment). Actually, a contradiction of this kind appears in many discrimination cases concerning identity checks: the statement of the person who claims to be a victim of racial discrimination is in contradiction with the testimony of the police officers. In these circumstances, it is of the utmost importance to carry out an effective investigation. As the Court has repeatedly said, for an investigation to be effective, the institutions and persons responsible for carrying it out must be independent from those targeted by it. This means not only a lack of any hierarchical or institutional connection but also practical independence (see, among other authorities, Bouyid v. Belgium [GC], no. 23380/09, § 118, ECHR 2015 ) . In that regard, it is difficult to find that an independent investigation has been conducted in the present case.

8. Therefore, although the State enjoys a margin of appreciation in determining the manner in which to organise its system to ensure compliance with the Convention, I am not really convinced that the national authorities did what was reasonable in the present circumstances to investigate the existence of a possible racist attitude (see, regarding the principles, paragraphs 65-68 of the judgment).

II. Positive obligation to set up an adequate legal framework

9. Furthermore, I regret that the majority do not address the obligation for the Contracting States to set up an adequate legal framework affording effective safeguards against arbitrariness and preventing discrimination in cases of identity checks carried out by State agents. In my opinion, this important issue should have been examined by the Court in order to verify whether the Spanish legal system provides an adequate level of protection.

10. This obligation on States would be fully in line with the principle of subsidiarity, which implies that the national authorities have the primary task of implementing and enforcing the rights and freedoms guaranteed by the Convention.

11. I note in this connection that the applicant expressly argued before the national authorities that the Spanish Law on the protection of public safety, as in force at the time of the incident, did not provide adequate safeguards. In particular, he asserted that the law did not establish a requirement for a sufficiently well-founded reason to carry out identity checks, among other flaws, which allowed room for arbitrary and discriminatory behaviour (see paragraph 20 of the judgment).

12. In its case-law, the Court has already held in many cases that the authorities’ positive obligations under the Convention may include a duty to establish an adequate legal framework affording protection of vulnerable people (see Öneryıldız v. Turkey [GC], no. 48939/99, § 89, ECHR 2004 ‑ XII, concerning Article 2 of the Convention; Volodina v. Russia , no. 41261/17, §§ 77 and 85, 9 July 2019, and O’Keeffe v. Ireland [GC], no. 35810/09, § 148, ECHR 2014 (extracts), relating to Article 3 of the Convention; Rantsev v. Cyprus and Russia , no. 25965/04, § 285, ECHR 2010 (extracts), as regards Article 4 of the Convention; and Söderman v. Sweden [GC], no. 5786/08, §§ 80 and 89, ECHR 2013, and F.O. v. Croatia , no. 29555/13, § 91, 22 April 2021, regarding Article 8 of the Convention) or providing effective safeguards against arbitrariness by State agents (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 209, ECHR 2011 (extracts)).

13. In particular, in Giuliani and Gaggio , concerning the use of force and firearms by police officers, the Court stated: “Unregulated and arbitrary action by State agents is incompatible with effective respect for human rights. This means that policing operations must be sufficiently regulated by national law, within the framework of a system of adequate and effective safeguards against arbitrariness and abuse of force” (ibid., § 249). In my view, those considerations are also relevant to the present issue.

III. Negative obligation: not to discriminate

14. In discrimination cases, the issue of evidence is crucial but also particularly tricky. Applicants are often faced with difficulties in proving discriminatory treatment (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 186, ECHR 2007-IV). In other contexts, the Court has already pointed out some kinds of prima facie evidence which can shift the burden of proof on to the respondent State, such as reports by non-governmental organisations or international observers, or statistical data from the authorities or academic institutions (see, as a recent example, Y and Others v. Bulgaria , no.9077/18, § 122, 22 March 2022).

15. In the present case, as I consider that the respondent State did not comply with its obligation to carry out an effective investigation into possible racist motives, I am unable to take a position on whether racist attitudes played a role in the applicant’s identity check by the police and his arrest (see paragraph 102 of the judgment).

[1] Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals.

[2] Law no. 62/2003 transposed the EU Equality Directives 2000/43/EC of 29 June 2000 and 2000/78/EC of 27 November 2000.

[3] The applicant argued that discriminatory identity checks were not a criminal offence under Spanish law. See in this regard ECRI, Fifth Report on Spain, adopted on 5 December 2017 and published on 28 February 2018, which recommended that the Spanish authorities criminalise racial profiling by the police (see paragraph 8 of the report and recommendation no. 1).