Legal summary

February 2024

Wa Baile v. Switzerland - 43868/18 and 25883/21

Judgment 20.2.2024 [Section III]

Article 14

Discrimination

Domestic courts’ failure to ascertain whether discriminatory motives were behind an identity check in a station of a dark-skinned man alleging racial profiling and Government’s inability to rebut presumption of discriminatory treatment: violations

Facts – In February 2015 the applicant, a dark-skinned Swiss national, was stopped for an identity check by municipal police officers in the Zürich railway station. As a result of his refusal to comply with their orders, the officers took him aside and asked him to raise his hands in the air and spread his legs. They searched his pockets and his backpack until they found a document that established his identity. Once his identity had been confirmed, the applicant was allowed to leave.

In November 2016 the District Court sentenced the applicant to the payment of a fine of 100 Swiss francs for having refused to comply with an order from the police. His appeals against that decision, in which he alleged racial profiling, were unsuccessful.

In October 2020 the Administrative Court set aside the administrative decisions rejecting the applicant’s request to have the identity check declared unlawful, finding that it had indeed been unlawful. It considered that the question as to discrimination on the ground of skin colour remained open. The Federal Supreme Court declared the applicant’s appeal against that decision inadmissible.

Law – Article 14 in conjunction with Article 8:

(1) Applicability – The Court had previously held in the Basu v. Germany and Muhammad v. Spain cases that a complaint of racial profiling based on an identity check considered to have been discriminatory could fall within the ambit of the right to respect for private life within the meaning of Article 8, such that Article 14, read in conjunction with Article 8, was applicable. In the present case, the Court found that the question whether the applicant’s complaint fell within the ambit of Article 8 and, consequently, whether Article 14, in conjunction with Article 8, was applicable, was intrinsically bound up with the merits of the case.

(2) Merits –

(a) As to the alleged breach of the duty to ascertain whether discriminatory grounds might have played a role in the identity check (procedural aspect) – Where an arguable claim had been lodged with the authorities of a State alleging that someone had been targeted by a public official on the ground of race and where it had been established that the impugned events fell within the scope of Article 8, the authorities had a duty, under Article 14, read in conjunction with Article 8, to seek to ascertain whether a link could be established between the alleged racist attitudes and the impugned act, and they were required to give sufficiently detailed reasons for their decisions.

Unlike in the Basu and Muhammad cases – in which the applicants had themselves initiated criminal and administrative proceedings – criminal proceedings had been brought against the present applicant, who had thus had to institute administrative proceedings to have the impugned identity check declared unlawful following his conviction for refusal to comply. In the present case, in the light of the Administrative Court’s finding that there had been no objective justification for the identity check, the Court took the view that it had been incumbent on the courts of competent jurisdiction to determine whether or not the check and search had been racially motivated. However, the applicant’s allegation of racial profiling had not been reviewed in detail by the criminal courts. Moreover, although the Administrative Court had found that the identity check had been unlawful, it had considered that the question whether the applicant’s skin colour had played a decisive role in the police officer’s decision to subject him to a check remained open, and the Federal Supreme Court had also failed to examine the allegation of racial profiling.

In the light of the foregoing considerations, and in particular of the specific circumstances and location of the identity check, the Court found that the requisite threshold of severity had been reached such that the right to respect for private life was engaged and that the applicant had an arguable claim of discrimination on the ground of his skin colour. That being stated, neither the administrative courts nor the criminal courts had examined this complaint in an effective manner.

Conclusion : Article 14, read in conjunction with Article 8, applicable; violation (unanimously).

(b) As to the allegedly discriminatory nature of the identity check (substantive aspect) – The Court had held in other areas that the most fundamental positive obligation imposed on States consisted in implementing a legal and administrative framework which enabled them to fulfil their duties under the Convention. When it came to racial profiling, relying on the United Nations Committee on the Elimination of Discrimination’s General recommendation No. 36 (2020) on preventing and combating racial profiling by law enforcement officials ; on the Concluding observations on the combined tenth to twelfth periodic reports of Switzerland of 27 December 2021; and on the European Commission against Racism and Intolerance’s Report on Switzerland published on 19 March 2020, the Court took the view that the absence of a sufficient legal and administrative framework was liable to give rise to discriminatory identity checks.

In the Basu case, having found a breach of the duty to ascertain whether discriminatory grounds might have played a role in the applicant’s identity check, the Court had declared itself unable to make a finding as to whether the applicant had been subjected to the identity check on account of his ethnic origin. In the present case, however, there was at least one decisive point that justified the Court’s pursuing its examination of that question: the Administrative Court had reached the conclusion that the identity check to which the applicant had been subjected – to the extent that it had been based on the grounds put forward by the police officer who had carried it out – had been unlawful and could not be objectively justified. The Court inferred from this that, in the absence of legitimate grounds for the identity check, there was, in the present case, a strong presumption in favour of the hypothesis that the check, including the accompanying search, had been carried out on discriminatory grounds. The respondent Government had failed to present the Court with any evidence apt to rebut that presumption in the particular circumstances of the case. While they had submitted that the applicant had not been the only person to have undergone an identity check that day, they had failed to specify how many others had been subjected to such a check or to provide any other relevant details in that regard. Nor had any explanation been given by the Government to justify their failure to produce any such evidence, although they alone had been in a position to produce information of that nature. Consequently, their argument had proven too vague for the Court to find it apt to rebut the presumption of discriminatory treatment. In addition, certain aforementioned international bodies had reported cases of racial profiling by the police in Switzerland, a finding that had been further corroborated by the observations submitted by some of the third-party interveners, in particular Amnesty International. Considered as a whole, these reports tended to lend support to the rebuttable presumption that the applicant had been subjected to discriminatory treatment. The Court, which was well aware of how difficult it was for police officers to decide – very quickly and without necessarily having the benefit of clear domestic guidelines – whether they were faced with a threat to public order or security, concluded that there was, in these particular circumstances, a presumption, which the Government had failed to rebut, that the applicant had been subjected to discriminatory treatment.

Conclusion : violation (unanimously).

The Court also concluded, unanimously, that there had been a violation of Article 13 in connection with the complaint under Article 14, read in conjunction with Article 8 (application no. 25883/21), for want of an effective remedy in the domestic courts.

Article 41: no claim in respect of damage.

(See also D.H. and Others v. the Czech Republic [GC], 57325/00, 13 November 2007, Legal summary ; Basu v. Germany , 215/19, 18 October 2022, Legal summary ; Muhammad v. Spain , 34085/17, 18 October 2022, Legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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