CASE OF WA BAILE v. SWITZERLAND

THIRD SECTION

CASE OF WA BAILE v. SWITZERLAND

(Applications nos. 43868/18 and 25883/21)

JUDGMENT

Art 14 (+ Art 8) • Domestic courts’ failure to ascertain whether discriminatory motives were behind identity check of dark-skinned man alleging racial profiling in railway station • Art 14 (+ Art 8) applicable • Threshold of severity to fall within ambit of right to respect for private life attained • Arguable claim of discrimination on ground of skin colour • Inability of Government to rebut presumption of discriminatory treatment during identity check, including search • Presumption strengthened by international reports showing racial profiling by police, corroborated by third-party interveners

Art 13 + (Art 14 + 8) • No effective remedy

Prepared by the Registry. Does not bind the Court.

STRASBOURG

20 February 2024

FINAL

20/05/2024

This judgment became final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Wa Baile v. Switzerland,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Pere Pastor Vilanova, President,

Jolien Schukking,

Georgios A. Serghides,

Darian Pavli,

Peeter Roosma,

Ioannis Ktistakis,

Andreas Zünd, judges,

and Milan Blaško, Section Registrar,

Having regard to:

the applications (nos. 43868/18 and 25883/21) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Swiss national, Mr Mohamed Shee Wa Baile (“the applicant”), on 10 September 2018 and 7 May 2021 respectively;

the decision to give notice to the Swiss Government (“the Government”) of the complaint concerning Article 14 of the Convention, read in conjunction with Articles 6 and 8, and the complaint concerning Article 13 of the Convention, and to declare inadmissible the remainder of the applications;

the observations submitted by the respondent Government and the observations in reply submitted by the applicant;

the comments submitted by Amnesty International, the Open Society Justice Initiative and the French Défenseure des droits (Defender of Rights), who were granted leave to intervene in the written procedure by the President of the Section;

the Section President’s decisions to treat some of the documents in the case files as confidential under Rule 33 of the Rules of Court;

Having deliberated in private on 14 November 2023 and 16 January 2024,

Delivers the following judgment, which was adopted on the last-mentioned date:

INTRODUCTION

1. In the present case, the applicant alleged that the identity check to which he was subjected in Zürich railway station had been based on racial profiling. This check, following which he was fined for having refused to submit to it, gave rise to two applications – one concerning the criminal proceedings and the other the administrative proceedings brought by the applicant in the domestic courts – in which he claimed to have been the victim of discrimination on the ground of his skin colour and explained, in particular, that the question whether he had been the subject of racial profiling had not been decided by the competent authorities.

The case raised issues under Article 14 of the Convention in conjunction with Article 8 and under Article 13 of the Convention.

THE FACTS

2. The applicant is a Swiss national who was born in 1974 and lives in Bern. He was represented by Ms M. Zihlmann, a lawyer practising in Zürich.

3. The Government were represented by their Agent, Mr A. Chablais, of the Federal Office of Justice.

Sachverhalt

I. THE IDENTITY CHECK

4. On the morning of 5 February 2015 the applicant was on his way to work at the Zürich Polytechnical Institute when he was stopped for an identity check in Zürich railway station by three municipal police officers at around 7 a.m. As he refused 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 went on to search 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.

5. In his report of 26 February 2015 the officer in charge of the identity check (hereinafter A.) stated, in particular, as follows:

“While on patrol ... , my attention was drawn by a dark-skinned, male individual (subsequently identified as being Mr Wa Baile) who seemed suspicious to me. This was because of the individual’s conduct (Mr Wa Baile averted his gaze when he realised that I was a police officer, and sought to avoid me). There being cause to suspect a breach of the Federal Aliens Act [Law of 16 December 2005, known as the ‘Aliens and Integration Act’ (loi sur les étrangers et l’intégration – ‘LEI’) since 1 January 2019 and published in the Recueil systématique (‘RS’ – Compendium of Federal Law) under number 142.20], I decided to subject Mr Wa Baile to an identity check. When I spoke to him to inform him of the check, he appeared nervous, saying only ‘I don’t have an identity document’. This strengthened my suspicion that I was dealing with a breach of the LEI.”

6. The statement of the facts, as recorded in the report, reads as follows:

“During an identity check, Mr Wa Baile refused to provide proof of his identity by means of an identity document. Furthermore, he repeatedly ignored the police officers’ orders (that he was to cooperate and state his name).

During the check, Mr Wa Baile called us racist and characterised the check we were performing as vexatious.”

7. According to the same report, during the identity check, the applicant had in substance made the following remarks:

“I’ve got rights, too. What you are doing here is inappropriate; it’s racism. My identity is checked everywhere I go. I don’t care what you say. I don’t have an identity document and I won’t say who I am, either. Go ahead and write up a report. I’m not going to pay any fine. I’d rather go to prison.”

8. The applicant, for his part, presented the facts as follows. As the three police officers had approached him, he had glanced at them before averting his gaze and moving on. By that time, the officers had already accosted him. He pointed out that no one else in the crowd of people on the way to work – who he claimed were almost all white – had been subjected to an identity check. Lastly, he claimed not to have received an answer as to why he had been stopped.

Erwägungen

II. THE CRIMINAL PROCEEDINGS (APPLICATION No. 43868/18)

9.

By a summary penalty order of 16 March 2015 the applicant was fined 100 Swiss francs (CHF) pursuant to Articles 4 and 26 of the General Ordinance on the Zürich Municipal Police (see paragraph 36 below) for refusal to comply with police orders and a lump sum of CHF 150 for procedural costs.

10.

The applicant appealed against the order on 23 March 2015.

After gaining access to the case file, he supplemented his claim with a memorial dated 20 April 2015.

11.

On 30 November 2015 the Zürich Minor Offences Office (Stadtrichteramt) interviewed the applicant and A.

12.

In a memorial dated 2 February 2016 the applicant requested additional evidence-gathering measures. He asked that the pedagogical material on checks on persons that was used in police training be added to the file, together with any internal instruction or document on this subject and the relevant statistical data. In a decision of 30 March 2016 the Minor Offences Office rejected this request in so far as it pertained to the communication of statistical data, explaining that the present case had to be examined on the basis of the particular circumstances and that the communication of such data would provide no further information that was relevant in that regard. As to the other points, the Minor Offences Office had asked the head of the legal department of the Zürich Municipal Police to provide any documents in her possession that might satisfy the applicant’s request. That person had accordingly forwarded to the Minor Offences Office, which had added it to the file, an excerpt from Municipal Police Regulation no. 6105 of 5 January 2009 on checks on persons. There being no further relevant documents, the Minor Offences Office considered that it had sufficiently responded to the applicant’s request.

13.

On 30 March 2016 the Minor Offences Office forwarded the file to the Zürich District Court (“the District Court”).

14.

In a judgment of 7 November 2016 the applicant was convicted, under Article 26 of the General Ordinance on the Zürich Municipal Police in conjunction with Article 4, of refusing to comply with a police order and was sentenced to pay a fine of CHF 100.

The District Court found that the versions of the facts given by the applicant and by A. were both credible. It pointed out that, under domestic law, declaring a police order to be unlawful – unlike declaring it to be null and void – did not entail that the person to whom it had been addressed had not been obliged to comply. It noted that A. had submitted that he had carried out the check because the applicant had seemed suspicious to him for having averted his gaze and attempted to avoid him.

Allowing that one might question whether such grounds were sufficient, the District Court nonetheless found that it was appropriate to take into account, in A.’s favour, that he had not had much time to decide whether a check was necessary. Moreover, the District Court observed, it could not be denied that the officer had noticed something which, in that moment, had appeared to justify the check. It found that there was nothing to suggest that the applicant’s skin colour had been a decisive factor in the officer’s decision to perform an identity check. It added that even if, in retrospect, the conclusion were to be reached that the conditions for a check had not been met, the order in question could not be regarded as having been null and void. It followed, according to the District Court, that even if it were shown that A. had overstepped his margin of appreciation and therefore that the identity check had been unlawful, the applicant would still have been obliged to submit to it. The District Court explained that such a line of reasoning, as troubling as it might seem, was both necessary for the proper functioning of State institutions and acceptable having regard to the possibility afforded to those who had been subjected to a check they wished to challenge to have its unlawfulness established ex post facto by the administrative courts.

15.

On 12 December 2016 the applicant challenged that judgment before the Zürich Cantonal Court (“the Cantonal Court”), alleging, in particular, that the identity check had been based on racial profiling.

16.

In its judgment of 25 August 2017 the Cantonal Court upheld the applicant’s conviction.

It pointed out that, to be declared null and void, an order by a police officer had to be grossly and manifestly irregular, or at least easily recognisable as such.

It explained that this condition would have been met, in particular, if there had been evidence in the case file of improper conduct or inappropriate remarks on the part of the police officer. The Cantonal Court noted, however, that the applicant had never made any allegations to that effect and that the available evidence, in particular the statements given by A. and by the applicant, gave no indication that the identity check had been performed on manifestly discriminatory grounds. The Cantonal Court attached decisive importance to the fact that the District Court had found credible A.’s submissions to the effect that the identity check had been prompted by the applicant’s conduct rather than his skin colour. It further explained that, while it was certainly true that the conduct in question had provided only a tenuous basis for the assumption that the applicant was in breach of the law and for the resulting decision to subject him to an identity check, the applicant’s submission that he had been the only one that morning subjected to an identity check on the basis of such weak grounds was a mere supposition which nothing in the file substantiated.

Thus, the Cantonal Court observed, A. had pointed out that a number of other individuals had been subjected to an identity check on the same day. The Cantonal Court added that regard should be had to the context. It pointed out that the identity check had taken place in Zürich railway station, a very busy place where one could expect intensified criminal activity and, accordingly, a police presence and checks, especially in connection with suspected breaches of the LEI, given that border controls in the Schengen Area were limited.

It explained that such breaches were not visible on the basis of clearly perceptible signs and that it was therefore appropriate that police checks in this regard should not be subject to unduly stringent justification requirements.

In the Cantonal Court’s view, it could not be inferred from the tenuousness of the signs on the basis of which the decision to perform the check had been taken that this decision had been manifestly unlawful. Nor was there anything in the manner in which the check had been conducted to suggest that it had been vexatious or discriminatory in nature.

17.

On 10 October 2017 the applicant lodged an appeal against this judgment with the Federal Supreme Court.

18.

In a judgment of 7 March 2018, notified on 15 March 2018, the Federal Supreme Court declared the appeal partly admissible but dismissed it.

It found, in particular, that the Cantonal Court’s assessment was not arbitrary.

As to the applicant’s complaint that the identity check had been based on racial profiling and had therefore been discriminatory, the Federal Supreme Court took the view that this complaint rested on a different account of the facts from the one which the first-instance court had found to be credible.

Explaining that it was bound by the facts as established by the lower court, the Federal Supreme Court declared the complaint inadmissible.

III. THE ADMINISTRATIVE PROCEEDINGS (APPLICATION No. 25883/21)

19.

On 22 March 2016 the applicant sought to have the identity check of 5 February 2015 declared unlawful by the Zürich Municipal Police. He claimed to have been the victim of infringements of his rights to freedom of movement, respect for his private life and informational self-determination, and of a violation of the prohibition of discrimination.

20.

In a decision of 20 July 2016 the Municipal Police adjourned the proceedings pending the outcome of the ongoing criminal proceedings. On 30 March 2017 the applicant sought to have the suspension lifted.

21.

On 26 April 2017 the Municipal Police rejected the request on the grounds that the applicant had raised his complaint as to the unlawfulness of the impugned identity check in the context of the criminal proceedings and a final determination had yet to be made in that regard.

22.

The administrative proceedings resumed once the Federal Supreme Court’s judgment of 7 March 2018 had put an end to the criminal proceedings (see paragraph 18 above).

23.

In a decision of 20 December 2018 the Municipal Police dismissed the applicant’s request.

They claimed to be bound by the criminal-law authorities’ findings as to the establishment of the facts and further explained, referring to the Court’s relevant case-law, why the reversal of the burden of proof relied on by the applicant was not applicable in the case at hand.

24.

On 25 January 2019 the applicant appealed against this decision to the Zürich Municipal Council (Stadtrat).

He again pleaded that the police check of 5 February 2015 had been unlawful and that there had been an infringement of the same rights as he had asserted before the Municipal Police.

25.

On 10 April 2019 the Municipal Council rejected the appeal. They explained, as the Municipal Police had done, that the administrative authorities were in principle bound by the facts as established by the criminal courts and went on to examine the applicant’s complaints, taking account of the Court’s relevant practice.

26.

On 27 May 2019 the applicant appealed against this decision to the Zürich District Office (Statthalteramt).

Putting forward the same arguments, he reiterated in substance the claims he had made before the lower bodies. On 20 November 2019 the District Office dismissed the appeal.

27.

On 13 January 2020 the applicant challenged this decision before the Administrative Court of the Canton of Zürich (“the Administrative Court”).

He once again requested that the impugned police check be declared unlawful. In this connection, he reiterated his previous allegations of rights violations, further complaining of an infringement of his personality rights.

28.

In a judgment of 1 October 2020 the Administrative Court declared the appeal admissible, set aside the lower bodies’ decisions and held that the check of 5 February 2015 had been unlawful.

The Administrative Court first examined the applicant’s arguments with regard to the gathering of evidence and declared, in particular, that it could validly rely on the evidence that had been produced before the criminal courts.

It found that a fresh interview with the police officer who had performed the impugned check would be unlikely to provide additional clarification and that alternative evidence, such as that sought by the applicant, would be of no use to it in dealing with the issues raised by the case. It went on to lay out the relevant legal framework, devoting several pages, in particular, to a detailed presentation of the applicable principles regarding identity checks.

The Administrative Court also examined the various issues raised by the case. It noted, in particular, that, in view of the conflicting statements given by the applicant and the police officer involved, the precise moment at which the applicant had averted his gaze could not be determined. As to the question whether the identity check could be regarded as having been justified – assuming, as the police officer had submitted, that it had been prompted by the act of looking away – the Administrative Court held that, notwithstanding the particular context of Zürich railway station, the answer was “no”. Since the identity check had thus been unlawful in any event, the Administrative Court took the view that the question as to discrimination on the ground of skin colour remained open (point 5.7.3).

29.

On 14 December 2020 the applicant lodged an appeal against this judgment with the Federal Supreme Court. On the merits, he asked the Federal Supreme Court, first, to set aside the lower court’s judgment in so far as that court had not examined the question whether the check of 5 February 2015 had been unlawful, in particular by reason of a violation of Article 14 of the Convention in conjunction with Article 8, and, second, to hold that the check in question had entailed, in particular, a violation of his rights under Article 14 of the Convention in conjunction with Article 8. In the alternative, he requested that the case be sent back to the lower court with a view to establishing the relevant facts and examining the violations of fundamental rights he alleged.

30.

In a judgment of 23 December 2020 the Federal Supreme Court, sitting as a single judge, declared the appeal inadmissible.

Pointing out that, under section 89(1)(c) of the Federal Supreme Court Act of 17 June 2005 (see paragraph 32 below), a person had standing to lodge a public-law appeal only if that person had a legitimate interest in having the decision appealed against quashed or varied, it found that this condition was not met in the case at hand. It explained that the applicant had obtained full satisfaction before the Administrative Court and was therefore seeking neither the quashing nor the amendment of the impugned decision, but merely additional reasoning. However, the Federal Supreme Court pointed out, there was no right to that effect.

relevant legal framework and practice

I. DOMESTIC LAW

31.

The relevant provisions of the Federal Constitution of the Swiss Confederation (“the Constitution”), adopted on 18 April 1999 (RS 101), read as follows:

Article 7 – Human dignity

“Human dignity must be respected and protected.”

Article 8 – Equality before the law

“Every person is equal before the law.

No person may be discriminated against, in particular on grounds of origin, race, gender, age, language, social position, way of life, religious, ideological or political convictions, or because of a physical, mental or psychological disability.

...”

32.

The Federal Supreme Court Act of 17 June 2005 (RS 173.110) provides as follows:

Section 89 – Locus standi

“Locus standi to appeal in matters of public law shall be had by anyone who

a. has taken part in the proceedings before the lower authority or has been deprived of the opportunity to do so;

b. has been particularly affected by the decision or legal act appealed against; and

c. has a legitimate interest in having it quashed or varied.

...”

Section 99 – [New grounds of appeal]

“...

2.

Any new pleadings shall be inadmissible.”

33.

Article 286 of the Swiss Criminal Code of 21 December 1937 reads as follows:

Article 286 – Obstruction of an official act

“Anyone who has impeded an authority, a member of an authority, or a civil servant in the accomplishment of an act forming part of his or her duties shall be punished by a day-fine for a period of up to 30 days.

...”

34.

Article 215 of the Code of Criminal Procedure of 5 October 2007 provides as follows:

Article 215 – Police power to stop

“In order to clarify a breach of the law, the police may stop an individual and, if necessary, take him or her to the station, for the following purposes:

a. to establish the person’s identity;

b. to question the person briefly;

c. to determine whether the person has committed an offence;

d. to determine whether enquiries should be undertaken in respect of that person or of objects found in his or her possession.

The police may compel the apprehended person

a. to disclose his or her identity;

b. to produce his or her identity papers;

c. to display the objects he or she is carrying;

d. to open his or her luggage or vehicle.

The police may request private citizens to assist them in apprehending an individual.

Where there are strong indications that offences are being committed or that wanted persons are to be found in a particular place, the police may block the exits and, if appropriate, apprehend those present.”

35.

The Canton of Zürich Police Act (published in the Compendium of Canton of Zürich Law under number 550.1) provides as follows:

Article 3 – Police duties

“The police shall contribute to maintaining public safety and order by informing, advising, maintaining a visible presence and taking other appropriate measures.

In particular, they shall take measures to

a. prevent the commission of criminal acts;

...

c. avert imminent threats to persons, animals, the environment, or property and put an end to the corresponding disruptions.

If they find that offences have been committed, they shall conduct an investigation pursuant to Articles 306 et seq. of the Code of Criminal Procedure.”

Article 21 – Judicial identification measures

“Where the performance of their duties so requires, the police may stop and question an individual, determine his or her identity and establish whether that individual is wanted, or whether his or her vehicle, other property or animals found in his or her company are.

The person stopped shall be required to provide information on his or her identity, present the identity and residence documents he or she is carrying and, to that end, open containers and vehicles.

...”

36.

The relevant provisions of the General Ordinance on the Zürich Municipal Police (published in the Compendium of Zürich Municipal By-laws under number 551.110) read as follows:

Article 4 – Conduct towards the police

“Police orders must be followed.”

Article 26 – Criminal provisions

“Breaches of the provisions of the present Ordinance or of municipal by-laws based hereon shall be punishable by a fine. In the event of a minor offence, a reprimand may be issued in lieu of a fine.”

II. DOMESTIC PRACTICE

A. Conditions for an identity check

37.

As to police stops simply for the purpose of an identity check, namely, the obligation to disclose one’s identity to a police officer and, if necessary, to show him or her a document establishing it, the Federal Supreme Court held, in a judgment of 6 July 1983 (ATF [Judgments of the Federal Supreme Court] 109 1a 146, point 4.b), that even if such a measure did not in itself amount to a very significant interference with personal freedom, it nevertheless constituted a direct intervention in the private sphere of individuals. It pointed out that this practice was therefore subject, in the same way as other control measures the police might impose, to the constitutional principles of public interest and proportionality. It followed that the police were not empowered to stop just any individual walking on the public highway or present in a public establishment, for no reason and in any circumstances whatsoever. It can thus be seen from the judgment that a verbal order to stop, together with a request for personal information or justifying documents, should not be vexatious or guided by a gratuitous sense of curiosity. In the Federal Supreme Court’s view, it would be unacceptable, for example, for certain law-abiding citizens to be systematically and regularly subjected to police checks under spurious or purely subjective pretexts. On the contrary, a police stop must be based on minimum objective grounds, such as the need to clarify a given situation, the presence of the person concerned in the vicinity of a place where an offence has just been committed, his or her resemblance to a wanted person, or his or her inclusion in a group of individuals one or more of whom can be suspected, on the basis of indications, however slight, of being in an illegal situation requiring police intervention.

Reiterating that it was not required, in a case concerning the abstract review of a statute, to consider every particular case that could arise, the Federal Supreme Court merely pointed out that, although it was true that a citizen was required to comply with an order to stop the reasons for which were not immediately clear to him or her, this did not mean that he or she was then at the mercy of the authorities’ whims or discretionary power. The principle of proportionality required police officers to show consideration and courtesy towards those they stopped, to cause them as little unease as possible vis-à-vis the surrounding people, not to ask them unnecessary, intrusive questions and not to subject them to harassment. The Federal Supreme Court further clarified that under no circumstances should such measures go beyond what was strictly necessary to verify identity and that verbal affirmations, the truth of which could easily be confirmed on the spot, were sufficient when one had neglected to carry a justifying document.

38.

In a judgment of 30 September 2009 (ATF 136 I 87, point 5.2), the Federal Supreme Court, having been called upon to carry out an abstract review of several provisions of the Canton of Zürich Police Act, held that not every identity check was permitted under section 21(1) of that Act (see paragraph 35 above). Pointing out that the text of the provision itself stated that such a measure had to be necessary, the court held that, where such necessity was lacking, this immediately ruled out that an identity check could be regarded as lawful and consistent with the principle of proportionality. The concept of necessity, it clarified, entailed that specific circumstances had to obtain for the police to be justified in performing identity checks and that such checks could not be conducted without cause.

It can be seen from the judgment that a check might be necessary, in particular, when the police’s attention was drawn by some particularity of a person, place or circumstance requiring an intervention.

The Federal Supreme Court thus explained that an identity check had to be prompted or justified by objective reasons, particular circumstances, or specific grounds for suspicion, such as, for example, the need to clarify a given situation, a person’s presence in the vicinity of a place where an offence had been committed, an individual’s resemblance to a wanted person, grounds for suspicion in connection with an offence and other similar circumstances.

In the Federal Supreme Court’s view, these were the elements entailed by the abstract condition that an identity check should be necessary for the discharge of police duties, while, conversely, the same condition precluded identity checks performed on the basis of mere pretexts, out of personal curiosity or on other spurious grounds. Lastly, the Federal Supreme Court held that, given the multiplicity of possible situations, a more detailed formulation, such as a list of examples, would be of little use and would not lead to greater precision, the crucial point being that police action should not go beyond what was necessary. Moreover, the court pointed out in this connection that the police were bound to show moderation and respect.

39.

In a case examined in the light of criminal procedure, the Federal Supreme Court found that the conditions for an identity check had been met in respect of a person who had been found in a place where drug-related offences regularly occurred, whom the police officers claimed to have “recognised” as a drug trafficker and who had turned out to be carrying cocaine (judgment 6B_1070/2018 of 14 August 2019, points 1.4 et seq.).

B. Obligation to comply with police orders

40.

In its examination of cases concerning offences against public authority such as, in particular, violence or threats against the authorities and civil servants (Article 285 of the Criminal Code) or obstruction of an official act (Article 286 of the Criminal Code; see paragraph 33 above), the Federal Supreme Court has had occasion to hold that the only instance in which there was no obligation to comply with a police order was where the order in question was null and void. It pointed out in this connection that, in accordance with the public-law doctrine of “evidence” (Evidenztheorie), an order was null and void in the event of a serious, manifest, or at least easily identifiable irregularity, provided that such a finding did not seriously jeopardise legal certainty. According to the Federal Supreme Court, while an order could be declared null and void on account of particularly serious procedural or formal irregularities, having regard to the circumstances of the case in question, it was only very rarely that irregularities in its content entailed that it was null and void (judgments 6B_113/2007, point 2.5; 6B_393/2008, point 2.1; ATF 103 IV 73, point 6.b; and ATF 98 IV 41, point 4.b).

C. Prohibition of discrimination

41.

In keeping with the practice of the Federal Supreme Court, discrimination, within the meaning of Article 8 § 2 of the Constitution (see paragraph 31 above), means treating a person differently because they belong to a particular group which, historically or in present-day social reality, is or has been excluded or denigrated. It can be seen from the case-law of the Federal Supreme Court that discrimination consists in unequal treatment suffered by a person placed in a relevantly similar situation to that of another, aggravated by the fact that he or she is disadvantaged in a manner which, because it relates to a characteristic forming an essential part of that person’s identity which he or she cannot or cannot easily renounce, must be regarded as debasing or excluding him or her. The Federal Supreme Court has thus held that the prohibition of discrimination also concerns aspects of human dignity protected by Article 7 of the Constitution (ibid.). Furthermore, it has held that a regulation may have direct or indirect discriminatory effects, the latter corresponding to cases where the regulation, although it does not provide for differences in treatment to the detriment of specially protected groups, nevertheless places members of such a group at a particular disadvantage for no objective reason through the practical effects that it entails. Lastly, the Federal Supreme Court has pointed out that the prohibition of discrimination does not absolutely rule out the use of a prohibited criterion, since such a circumstance initially gives rise only to a presumption of unlawful discrimination, which can potentially be rebutted on special grounds (ATF 139 I 292, points 8.2.1 et seq., with further references).

III. RELEVANT INTERNATIONAL LAW AND PRACTICE

A. The International Convention on the Elimination of All Forms of Racial Discrimination

42.

Article 5 of the United Nations (UN) International Convention on the Elimination of All Forms of Racial Discrimination, which was adopted on 7 March 1966 and ratified by Switzerland on 29 November 1994, provides as follows:

“In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

(a)

The right to equal treatment before the tribunals and all other organs administering justice;

...

(d)

other civil rights, in particular:

(i)

The right to freedom of movement and residence within the border of the State;

...”

43.

In its General recommendation No. 36 of 17 December 2020 on preventing and combating racial profiling by law enforcement officials (CERD/C/GC/36), the UN Committee on the Elimination of Racial Discrimination (CERD) noted, in particular, that there was no universal definition of racial profiling in international human rights law (§ 13).

For the purposes of that recommendation, the concept was defined as the practice of police and other law enforcement relying, to any degree, on race, colour, descent or national or ethnic origin as the basis for subjecting persons to investigatory activities or for determining whether an individual was engaged in criminal activity (§ 18).

According to the Committee, racial profiling was linked to stereotypes and biases, which could be conscious or unconscious, and individual or institutional and structural. Stereotyping became a violation of international human rights law when stereotypical assumptions were put into practice to undermine the enjoyment of human rights (§ 20).

44.

The Committee also declared that the practice of racial profiling violated the fundamental principles of human rights (§ 21). It clarified that States Parties were obliged to actively take steps to eliminate discrimination through their laws, policies and institutions (§ 23) and that they were also to ensure that their domestic legal order contained adequate and effective mechanisms through which to assert that racial profiling had taken place and to bring such a practice to an end (§ 24).

Lastly, it stated that it was of paramount importance that national law enforcement officials were properly informed of their obligations and were sufficiently aware of how to avoid engaging in practices of racial profiling (§ 25).

45.

Concerning Switzerland, the CERD stated as follows in its Concluding observations on the combined tenth to twelfth periodic reports of Switzerland (CERD/C/CHE/CO/10-12, 27 December 2021):

Racial profiling

“19. The Committee reiterates its concern regarding the persistence of racial profiling by the police and the lack of a law explicitly prohibiting that practice. It is also concerned by reports that the State party is not collecting sufficient statistics on racial profiling. While taking note of the information provided by the State party on the inclusion of some aspects of racial discrimination in police training, the Committee is nevertheless concerned at reports that this training is insufficient to effectively prevent racism and racial profiling by police officers (arts. 2, 4 and 5).

20.

Recalling its general recommendation No. 36 (2020), the Committee urges the State party to redouble its efforts to effectively counter the use of any and all practices by law enforcement officers that are based on racial profiling and to put an end to such practices by, in particular:

(a) Incorporating an explicit prohibition of racial profiling into its legislation, taking into account general recommendation No. 36, and adopting operational measures for that purpose, such as the introduction of forms on which the reasons for an identity check or any other police operation must be stated and the provision of information to victims on the available remedies;

(b) Formulating an action plan to combat racial profiling in consultation with the population groups most at risk of becoming victims of that practice with a view to preventing and countering it effectively by means of a range of measures that include the following:

(i) Strengthening of initial and ongoing training for police officers and members of other law enforcement agencies on the issues of racism and racial profiling;

(ii) Follow-up at the cantonal and federal levels of operational measures implemented to combat racial profiling and of regular audits conducted with the help of independent experts to address gaps in policies and organizational practices;

(iii) The introduction of an independent system for processing complaints related to racial profiling;

(iv) The compilation of disaggregated data on racial profiling, the regular publication of those data and their inclusion in the next periodic report.”

B. The International Covenant on Civil and Political Rights and the UN Human Rights Committee

46.

The International Covenant on Civil and Political Rights, which was adopted on 16 December 1966 and ratified by Switzerland on 18 June 1992, provides as follows:

Article 2

“1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

2.

Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

3.

Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.”

Article 17

“1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2.

Everyone has the right to the protection of the law against such interference or attacks.”

Article 26

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

47.

In its views of 27 July 2009 on Communication No. 1493/2006 against Spain, submitted by Rosalind Williams Lecraft (UN Doc. CCPR/C/96/D/1493/2006), the UN Human Rights Committee examined a case of discrimination that was alleged to have arisen on the occasion of an identity check and found that there had been a violation of Article 26 of the International Covenant on Civil and Political Rights, read in conjunction with Article 2 § 3.

The Human Rights Committee found as follows:

“2.1 The author, who is originally from the United States of America, acquired Spanish nationality in 1969. On 6 December 1992, she arrived at Valladolid railway station from Madrid with her husband and son. Shortly after she got off the train an officer from the National Police approached her and asked to see her National Identity Card. The police officer did not ask anyone else who was on the platform at that time, including her husband and son, for their identity cards. The author asked the police officer to explain the reasons for the identity check; the officer replied that he was obliged to check the identity of people like her, since many of them were illegal immigrants. He added that the National Police were under orders from the Ministry of the Interior to carry out identity checks of “coloured people” in particular. ...

...

7.2

The Committee must decide whether being subjected to an identity check by the police means that the author suffered racial discrimination. The Committee considers that identity checks carried out for public security or crime prevention purposes in general, or to control illegal immigration, serve a legitimate purpose. However, when the authorities carry out such checks, the physical or ethnic characteristics of the persons subjected thereto should not by themselves be deemed indicative of their possible illegal presence in the country. Nor should they be carried out in such a way as to target only persons with specific physical or ethnic characteristics. To act otherwise would not only negatively affect the dignity of the persons concerned, but would also contribute to the spread of xenophobic attitudes in the public at large and would run counter to an effective policy aimed at combating racial discrimination.

...

7.4

In the present case, it can be inferred from the file that the identity check in question was of a general nature. The author alleges that no one else in her immediate vicinity had their identity checked and that the police officer who stopped and questioned her referred to her physical features in order to explain why she, and no one else in the vicinity, was being asked to show her identity papers. These claims were not refuted by the administrative and judicial bodies before which the author submitted her case, or in the proceedings before the Committee. In the circumstances, the Committee can only conclude that the author was singled out for the identity check in question solely on the ground of her racial characteristics and that these characteristics were the decisive factor in her being suspected of unlawful conduct. Furthermore, the Committee recalls its jurisprudence that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant. In the case under consideration, the Committee is of the view that the criteria of reasonableness and objectivity were not met. ...”

48.

With regard to Switzerland, the UN Human Rights Committee noted the following on the subject of statistical data in its Concluding observations on the fourth periodic report of Switzerland (CCPR/C/CHE/CO/4Add.1, 9 August 2018):

V.

Recommendation 29 (c): statistics

“31. There has been no development on the issue of a national police abuse database since the submission of the fourth periodic report of Switzerland (see the periodic report of Switzerland of 7 July 2016, para. 112).

32.

The handling of complaints against police officers is regulated at the cantonal level and there is therefore no national database or corresponding register. Most cantons keep internal statistics of all complaints received.

...”

C. The UN Committee against Torture

49.

In its Concluding observations concerning the seventh periodic report of Switzerland, the UN Committee against Torture noted as follows (CAT/C/CHE/CO/7, 7 September 2015):

Police violence

“10. The Committee is concerned at information received to the effect that alleged cases of excessive use of force and of racist behaviour by the police and immigration services are not systematically reported to the authorities, even where there is medical evidence of injury. It also notes with concern the reports indicating the lack of prompt and effective investigations, as noted by the European Court of Human Rights in the case of Dembele v. Switzerland (2013). In this regard, the Committee finds it regrettable that the State party has not yet established an independent body to investigate individual cases, despite the Committee’s repeated recommendation in its previous concluding observations (see CAT/C/CR/34/CHE, para. 4 (g), and CAT/C/CHE/CO/6, para. 9). The Committee also finds it regrettable that the State party has not provided adequate statistical data at the national level concerning allegations of violence and ill-treatment by law enforcement officers. With regard to the data relating to the cantons of Geneva, Vaud and Zurich, it notes with concern that a large number of cases were discontinued and that, in the few cases that resulted in penalties being applied, these were only disciplinary sanctions (arts. 2, 12, 13 and 16).”

D. The European Commission against Racism and Intolerance

50.

In General Policy Recommendation No. 11 on combatting racism and racial discrimination in policing (CRI(2007)39), which as adopted on 29 June 2007 by the Council of Europe’s European Commission against Racism and Intolerance (ECRI), racial profiling is defined as follows:

“1. ... For the purposes of this Recommendation, racial profiling shall mean:

‘The use by the police, with no objective and reasonable justification, of grounds such as race, colour, language, religion, nationality or national or ethnic origin in control, surveillance or investigation activities’;

...”

51.

The ECRI recommended to the governments of member States, inter alia:

“9. To ensure effective investigations into alleged cases of racial discrimination or racially-motivated misconduct by the police and ensure as necessary that the perpetrators of these acts are adequately punished;

10.

To provide for a body, independent of the police and prosecution authorities, entrusted with the investigation of alleged cases of racial discrimination and racially-motivated misconduct by the police;

...”

52.

With regard to paragraph 1, the Explanatory Memorandum to the Recommendation also states, inter alia, as follows:

“34. iii) ... Research has shown that racial profiling has considerably negative effects. Racial profiling generates a feeling of humiliation and injustice among certain groups of persons and results in their stigmatisation and alienation as well as in the deterioration of relations between these groups and the police, due to loss of trust in the latter. ...”

53.

Paragraph 11 of ECRI General Policy Recommendation No. 7 on national legislation to combat racism and racial discrimination, adopted on 13 December 2002 and amended on 7 December 2017 (CRI(2003)8 Rev.), reads as follows in the revised version:

“The law should provide that, if persons who consider themselves wronged because of a discriminatory act establish before a court or any 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 discrimination.”

54.

In its Report on Switzerland (sixth monitoring cycle) adopted on 10 December 2019 and published on 19 March 2020, the ECRI voiced criticism of the authorities of that State and made the following recommendations (references omitted):

Police abuses

“110. ECRI notes numerous reports drawing attention to allegations of police abuses, including racial profiling and brutality. Representatives of the Yenish and Sinti/Manouche communities have all raised concerns about a possible profiling of persons with itinerant ways of life and repeated identity checks. A 2016 poster campaign against begging run by the Lugano police stereotyped Roma exploiting women and children as part of criminal organisations. Black people are also particularly targeted for police checks which frequently involve arrest and strip searching for drugs. ECRI is particularly alarmed that a number of police activities have ended in the death of Black persons. For example, in March 2018, a Nigerian man in Lausanne died following a police arrest during which he was pinned down and handcuffed; in October 2017, a 23-year old Gambian man died in police custody in Vaud; and in November 2016, a young Congolese man was fatally shot during a police patrol in Lausanne. Criminal proceedings relating to these cases in the canton of Vaud are ongoing. According to the NGO humanrights.ch, lawsuits in cases of police violence are often long and burdensome and rarely find in favour of the complainant, resulting in a system where victims feel helpless and that police are above the law.

111.

The Federal Commission against Racism, referring to Black people being victims of racial profiling, recommended training for police to combat the problem of institutional and structural racism. According to a police trainer and government advisor, around 20% of police interventions do not respond to objective criteria. Lack of training was put forward as an explanation as well as the absence of an independent body to investigate complaints against police.

112.

ECRI recommends further training for the police on the issue of racial profiling and on the use of the reasonable suspicion standard. It also strongly recommends setting up a body independent of the police and prosecution authorities, entrusted with the investigation of alleged cases of racial discrimination and racially-motivated misconduct by the police, in line with its General Policy Recommendation No. 11 on combating racism and racial discrimination in policing.”

E. The Committee of Ministers of the Council of Europe

55.

The European Code of Police Ethics (Rec(2001)10), adopted by the Committee of Ministers of the Council of Europe on 19 September 2010, lays down the principles by which the Committee of Ministers recommends that the governments of members States be guided in their domestic legislation, practice and codes of conduct of the police. It contains the following articles, in particular:

“...

IV.

Organisational structures of the police

...

C. Training of Police Personnel

...

30.

Police training shall take full account of the need to challenge and combat racism and xenophobia.

...

V.

Guidelines for police action/intervention

A.

Guidelines for police action/intervention: general principles

...

40.

The police shall carry out their tasks in a fair manner, guided, in particular, by the principles of impartiality and non-discrimination.

...

B.

Guidelines for police action/intervention: specific situations

1.

Police investigation

47.

Police investigations shall, as a minimum, be based upon reasonable suspicion of an actual or possible offence or crime.

48.

The police must follow the principles that everyone charged with a criminal offence shall be considered innocent until found guilty by a court, and that everyone charged with a criminal offence has certain rights, in particular the right to be informed promptly of the accusation against him/her, and to prepare his/her defence either in person, or through legal assistance of his/her own choosing.

49.

Police investigations shall be objective and fair. They shall be sensitive and adaptable to the special needs of persons, such as children, juveniles, women, minorities including ethnic minorities and vulnerable persons.

50.

Guidelines for the proper conduct and integrity of police interviews shall be established, bearing in mind Article 48. They shall, in particular, provide for a fair interview during which those interviewed are made aware of the reasons for the interview as well as other relevant information. Systematic records of police interviews shall be kept.

...”

F. The European Union (EU)

56.

Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin provides, in so far as relevant:

Recital 21

“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.”

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.

...”

THE LAW

I. JOINDER OF THE APPLICATIONS

57.

The applicant requested the joinder of the applications. The Government did not object to this. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH ARTICLE 8

58.

The applicant submitted that the identity check and search to which he had been subjected and the fine imposed on him had amounted to discrimination on the ground of his skin colour. He relied on Article 14 of the Convention in conjunction with Article 8. Those provisions read as follows:

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 8

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

59.

The Government contested that argument.

60.

The Court would point out that in application no. 43868/18 the applicant relied not only on Article 8 but also on Article 6 § 2 in support of his allegation of a violation of Article 14. However, in the light of recent judgments concerning racial profiling (see Basu v. Germany, no. 215/19, 18 October 2022, and Muhammad v. Spain, no. 34085/17, 18 October 2022), the Court considers it appropriate to examine the present complaint under Article 14 in conjunction solely with Article 8 of the Convention.

A. Admissibility

1.

Victim status

(a) The parties’ submissions

61.

The Government submitted that the applicant could no longer claim to be the victim of a violation of the Convention within the meaning of Article 34. In support of this argument, they explained that he had obtained full satisfaction in the domestic proceedings. The Government pointed out in this connection that the applicant had asked the domestic courts to rule on the lawfulness of the identity check of 5 February 2015 and that, following a detailed examination of the various aspects of the case, the Administrative Court had held that the check had been unlawful for lack of sufficient grounds to justify it. They argued that the lack of sufficient grounds was an essential component of racial profiling and that the finding of unlawfulness should therefore be regarded as an acknowledgment of the alleged violation.

In the Government’s view, the Administrative Court had thus accepted the applicant’s pleadings on the merits in their entirety. As to the applicant’s subsequent appeal to the Federal Supreme Court, in which he had asked it to find, in particular, that the identity check had amounted to a violation of Article 14 of the Convention in conjunction with Article 8, the Government pointed out that any new pleadings were inadmissible in such proceedings.

62.

The applicant replied that, to date, the racial discrimination of which he claimed to have been a victim had not been established by the domestic courts.

He explained that there was an obligation to do so even if the impugned measure had been found to have been unlawful on other grounds.

In this connection, he argued that there was a difference between an unlawful check and one that was discriminatory in that, in his view, the latter was humiliating for the person thereby singled out, could cause repeated trauma, drove the victim to limit his or her freedom of movement and caused him or her to feel less secure.

He added that, throughout the criminal proceedings, the judicial authorities had continued to treat him as an accused person rather than as a victim. Furthermore, they had shifted responsibility for ruling on the question of discrimination back and forth between them until that responsibility had no longer fallen to any of them. He also complained that his victim status had been renewed by the fine imposed on him in that the courts’ finding of unlawfulness had not released him from the obligation to pay it and the judgment delivered in that connection was not subject to review.

However, by justifying their upholding of the fine on the ground that the applicant would have been exempt from following the police order only if that order had been null and void, the authorities had, in his view, introduced, for the sole purpose of the proceedings in his case, a principle that was incompatible with Swiss case-law as it had previously stood.

In sum, he argued that he had victim status by reason of the authorities’ continued failure to take into account the discrimination to which he had been subjected.

(b) The Court’s assessment

63.

The Court reiterates that it falls first to the national authorities to redress any alleged violation of the Convention.

In this regard, the question whether an applicant can claim to be the victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see, among other authorities, Siliadin v. France, no. 73316/01, § 61, ECHR 2005-VII).

In addition, a decision or measure favourable to the applicant is not in principle sufficient to deprive him or her of “victim” status for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Eckle v. Germany, 15 July 1982, § 66, Series A no. 51; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI; and Siliadin, cited above, § 62).

64.

The Court would point out that the Cantonal Court, in the judgment it delivered in the criminal proceedings on 25 August 2017, held that the available evidence did not indicate that the identity check had been performed for manifestly discriminatory reasons or that it had been carried out in a vexatious or discriminatory manner. It observes that the Federal Supreme Court upheld that judgment on 7 March 2018, thereby confirming the applicant’s conviction (see paragraph 18 above).

It further notes that, in the administrative proceedings, the Administrative Court, in its judgment of 1 October 2020, found both that the identity check had been lawful and that the question as to discrimination on the ground of the applicant’s skin colour remained open (see paragraph 28 above).

Lastly, the Court notes that this judgment was upheld in a judgment of the Federal Supreme Court delivered on 23 December 2020, which took the view that the applicant had obtained full satisfaction and therefore did not have a legitimate interest in having the decision appealed against quashed or varied (see paragraph 30 above).

65.

In the light of the findings of the domestic courts, the Court does not share the Government’s view that the Administrative Court’s finding as to the unlawfulness of the applicant’s identity check has deprived him of his victim status.

It finds that neither the judgment in question nor any other domestic decision has acknowledged a breach of the prohibition of discrimination within the meaning of Article 14 of the Convention in conjunction with Article 8. It follows that the alleged violation has not been remedied.

66.

In view of the foregoing considerations, the applicant can claim to have been the victim of a violation of Article 14 of the Convention in conjunction with Article 8.

2.

Compatibility ratione materiae with the Convention

67.

The Court notes that the Government did not contest that Article 14 of the Convention, in conjunction with Article 8, was applicable to the present case. It nevertheless considers it appropriate to add the following observations.

68.

As the Court has consistently held, Article 14 of the Convention only complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions (see, among many other authorities, Şahin v. Germany [GC], no. 30943/96, § 85, ECHR 2003‑VIII, and Fábián v. Hungary [GC], no. 78117/13, § 112, 5 September 2017).

The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention.

It is necessary, but it is also sufficient, for the facts of the case to fall within the ambit of one or more of the Convention Articles (see, among other authorities, Beeler v. Switzerland [GC], no. 78630/12, § 48, 11 October 2022).

69.

As to the “private life” aspect of Article 8, the Court has previously had occasion to observe that this is a broad term, not susceptible to exhaustive definition, and that it can sometimes embrace aspects of an individual’s physical and social identity (see Lacatus v. Switzerland, no. 14065/15, § 54, 19 January 2021; Glor v. Switzerland, no. 13444/04, § 52, ECHR 2009; Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I; and Beizaras and Levickas v. Lithuania, no. 41288/15, § 117, 14 January 2020).

70.

The “private life” concept also covers the right to personal development and to establish and develop relationships with other human beings and the outside world (see, for example, Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007‑I, and A.‑M.V. v. Finland, no. 53251/13, § 76, 23 March 2017).

Respect for these rights is one of the fundamental requirements of “le vivre-ensemble” (“living together”) in a democratic society (see S.A.S. v. France [GC], no. 43835/11, §§ 141-42, ECHR 2014 (extracts)). There is thus a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 56, ECHR 2001‑IX, with further references).

71.

The Court has previously held in the Muhammad (cited above, §§ 50‑51) and Basu (cited above, § 27) cases that a complaint of racial profiling based on an identity check considered to have been discriminatory can fall within the ambit of the right to respect for private life within the meaning of Article 8 of the Convention and, consequently, that Article 14 of the Convention, in conjunction with Article 8, is applicable in such cases.

For it to be ascertained whether the threshold of severity has been attained in a particular case, the person concerned must have an arguable claim that he or she was targeted on the basis of specific physical or ethnic characteristics. Such an arguable claim may notably exist where the person concerned submitted that he or she (or persons having the same characteristics) had been the only person(s) subjected to a check and where no other grounds for the check were apparent or where any explanations by the police officers carrying out the check disclosed specific physical or ethnic motives (ibid., § 25).

Moreover, in the cases cited above, the Court attached a certain importance to the fact that the checks in question had taken place in public, a fact that may have a negative effect on a person’s reputation and self-respect.

72.

In the present case, the Court finds that the question whether the applicant’s complaint falls within the ambit of Article 8 and, consequently, whether Article 14 of the Convention, in conjunction with Article 8, is applicable, is intrinsically linked to the merits of the case.

Accordingly, it joins the question of compatibility ratione materiae to the merits of the complaint regarding the obligation to examine whether discriminatory grounds may have played a part in the identity check to which the applicant was subjected.

3.

Conclusion as to admissibility

73.

The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B. Merits

1.

Procedural aspect: alleged violation of the obligation to examine whether discriminatory grounds may have played a part in the impugned identity check

(a) The parties’ submissions

(i) The applicant

74.

The applicant submitted that Articles 13 and 14 of the Convention imposed on the national courts the obligation to establish the facts with regard to the identity check of their own motion so as to assess whether there had been any discrimination. He argued that the domestic courts ought to have examined the following questions: whether skin colour had been mentioned as a ground for the identity check; whether the ground relied on to justify the check was plausible; how the person concerned had conducted himself or herself prior to the check and – in order to determine whether that person had been treated differently from others – whether other individuals had conducted themselves in the same manner at that time; lastly, whether any of the established facts suggested that the impugned check was tied or could probably have been tied to a protected characteristic.

75.

The applicant further submitted that, in accordance with the Court’s case-law as established, in particular, in Nachova and Others v. Bulgaria ([GC], nos. 43577/98 and 43579/98, ECHR 2005-VII), the national courts ought to have shifted the burden of proof. He explained that the facts pertaining to the possible existence of a practice of racial profiling were within the exclusive knowledge of the State authorities. As to the Government’s argument that he had not provided any evidence in support of his allegations, the applicant replied that the authorities had refused to gather the additional evidence he had requested in order to have the alleged discrimination established. Alternatively, referring to the Court’s case-law in such matters, the applicant submitted that once prima facie evidence of discrimination had been presented, it was for the respondent State to prove that there had been no discrimination.

76.

Lastly, the applicant submitted that the domestic courts’ judgments had contained insufficient reasoning with regard to his credible allegation of discrimination. In this connection, he pointed out that the District Court had not even mentioned this complaint, that the Administrative Court, ruling on appeal, had found that the question of potential discrimination remained open and that the Federal Supreme Court had examined the case solely from the standpoint of arbitrariness.

The applicant therefore submitted that the question of potential discrimination had never been examined as such.

(ii) The Government

77.

The Government argued that there had been no procedural violation of Article 14 of the Convention. On the whole, in both the criminal and the administrative proceedings, the national courts had carefully examined the complaints raised by the applicant.

78.

As to the criminal aspect, the Government submitted that the Zürich Minor Offences Office had taken all the necessary measures, including interviewing the police officer and forwarding the relevant training guidelines and documents, to establish whether or not the applicant’s skin colour had been a decisive factor in the police’s decision to subject him to an identity check.

79.

They added that it should be borne in mind that the Cantonal Court and the Federal Supreme Court had limited powers of review in so far as these courts could hear a case only when it was alleged before them that the judgment of a lower court contained a mistake of law, or that the establishment of the facts had been manifestly inaccurate or in breach of the law. In the Government’s view, however, the courts in question had carefully examined the applicant’s complaints notwithstanding that restriction.

80.

As to the administrative proceedings, the Government argued that the Administrative Court had given considerable attention to the applicant’s complaint that he had been subjected to the impugned check on grounds relating to his skin colour. They pointed out that several pages of the judgment delivered by that court were devoted to an in-depth analysis of the applicable principles in matters of racial profiling, which the court had laid out in detail. In the Government’s view, in finding the identity check to have been unlawful, the Administrative Court had already afforded the applicant full satisfaction in respect of his claims and, furthermore, it had not been required to rule on the question whether the check had been discriminatory in nature. In this connection, the Government argued that, in the final analysis, the applicant had asked the Administrative Court to hold that the impugned check had been unlawful and that he had alleged violations of various fundamental rights only in so far as they constituted grounds of unlawfulness. Since the claim had been formulated thus, the domestic authorities had not been required, in the Government’s view, to rule on each of the alleged violations. The Government added that, when the applicant had finally submitted these complaints of a violation to the Federal Supreme Court, his action had been out of time in the light of the procedural rules, such that the Federal Supreme Court had delivered an exclusively procedural judgment, the appeal having failed to meet the statutory conditions for admissibility.

81.

Lastly, the Government argued that the cases in which the Court had found a procedural violation of Article 14 of the Convention in conjunction with Articles 2 and 3 had concerned situations where the authorities of the respondent State had failed to examine the issue of discrimination despite allegations that racist remarks had been made in connection with the acts of violence before them. The Government explained that such cases could not be compared to the present one.

(b) Observations of the third-party interveners

(i) The French Défenseure des droits

82.

The French Défenseure des droits referred to a number of the Court’s judgments and to the ECRI’s recommendations (see paragraphs 50 et seq. above) to emphasise that identity checks performed in a discriminatory manner were in breach of the Convention and could engage the responsibility of the State in view of its positive procedural obligations.

83.

She added that the Court had held that discriminatory identity checks required “special vigilance and a vigorous reaction” from the national authorities, which had to use all available means – including those of a procedural nature – to combat racism and to prevent and punish acts of that kind (she referred to Timishev v. Russia, nos. 55762/00 and 55974/00, § 56, ECHR 2005 XII). She pointed to the national authorities’ procedural obligations and to their duty to gather meticulously all relevant evidence as soon as allegations of discrimination were brought to their attention. She also called on the national authorities to adapt the rules on the burden of proof in discrimination cases in order to ensure the right to an effective remedy in accordance with the Court’s case-law, which, she explained, placed the onus on the respondent to prove non-discrimination where the claimant had adduced prima facie evidence of discrimination (ibid., § 57).

84.

The Défenseure des droits also took the view that there should be some flexibility when applying the rules on the admissibility of evidence in discrimination cases, failing which, where domestic law did not impose an obligation to justify police checks or to implement a system for tracking them, the subject of the check would encounter insurmountable difficulties and would have only his or her own testimony, that potentially obtained from any witnesses and/or statistical data to present in support of his or her complaint.

According to the Défenseure des droits, the absence of any obligation for the police officer concerned to prove that the check was justified on grounds of reasonable suspicion could impede the judicial review and deprive the victim of the opportunity to challenge the measure’s lawfulness in an effective manner and to complain that it was discriminatory.

In this connection, she pointed out that in the Gillan and Quinton v. the United Kingdom (no. 4158/05, §§ 83 and 86, ECHR 2010 (extracts)) case, the Court had held that the possibility of challenging such measures by way of judicial review did not constitute a safeguard against abuse, since the police officer was not required to demonstrate the existence of a reasonable suspicion apt to justify the measures in question and any potential abuse of power was therefore impossible to prove.

(ii) The Open Society Justice Initiative

85.

For its part, the Open Society Justice Initiative stated that a number of European and American courts had examined racial profiling and the related procedural issues.

It argued, in particular, that the French Court of Cassation had held, with regard to a police check certain aspects of which had created a presumption of discrimination, that it was appropriate to shift the burden of proof as to the existence of discrimination and that it therefore fell to the authorities to prove that the impugned check had been based on objective grounds (decisions nos. 15-24207 and others, 9 November 2016).

86.

It also pointed out that, in the B.S. v. Spain (no. 47159/08, 24 July 2012) case, the Court had held that, by omitting to examine the complaint that the four incidents in which the applicant had been stopped by the police had been motivated by racism, the national authorities had failed to take account of her particular vulnerability as a African female sex worker, and had thus – in breach of Article 14 of the Convention in conjunction with Article 3 – failed to comply with their duty to take all possible steps to ascertain whether or not a discriminatory attitude might have played a role in the events in question.

The third party added that in the Grigoryan and Sergeyeva v. Ukraine (no. 63409/11, 28 March 2017) case, the Court had found that there had been a violation of Article 14 in conjunction with Article 3 in that the authorities had not done all that could have been reasonably expected of them to uncover the racist motives behind the ill-treatment to which the applicant had been subjected.

(iii) Amnesty International

87.

Amnesty International explained that indirect discrimination could be proven by providing statistical evidence or by using alternative means of evidence. It pointed out that the Court had established that the burden of proof fell to the State where the events in issue lay wholly, or in large part, within the exclusive knowledge of the authorities (it referred to Bouyid v. Belgium [GC], no. 23380/09, § 83, ECHR 2015). Amnesty International added that the Court had held that, where the authorities, faced with acts of violence by State agents, had failed to take the required investigative measures and had disregarded evidence of possible discrimination, the Court might, when examining complaints under Article 14 of the Convention, draw negative inferences or shift the burden of proof to the respondent Government (see Nachova and Others, cited above, § 128).

88.

Lastly, the third party argued that, when confronted with allegations of racist violence, States had the duty to take all reasonable steps to unmask any racist motive and to establish whether ethnic hatred or prejudice had played a role in the events. In this connection, it referred, in particular, to the Nachova and Others (cited above, § 160) judgment.

(c) The Court’s assessment

(i) General principles

89.

Referring to the relevant general principles as reiterated in the Basu (cited above, §§ 31-35) and Muhammad (cited above, §§ 64-68) judgments, the Court considers it appropriate to emphasise following points.

90.

A differential treatment of persons in relevantly similar situations, without an objective and reasonable justification, constitutes discrimination (see Timishev, cited above, § 56, and Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV).

Racial discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction.

The authorities must use all available means to combat racism, thereby reinforcing democracy’s vision of a society in which diversity is not perceived as a threat but as a source of enrichment (see Timishev, § 56, and Nachova and Others, § 145, both cited above).

91.

It can be seen from the relevant principles that where an arguable claim has been lodged with the authorities of a State alleging that someone has been targeted by a State agent on the ground of race and it is established that the impugned events fall within the ambit of Article 8, the authorities have an obligation, under Article 14 of the Convention, read in conjunction with Article 8, to ascertain whether a link can be established between the alleged racist attitudes and the impugned act.

Such an obligation is essential in order for the protection against racial discrimination not to become theoretical and illusory, to ensure protection from stigmatisation of the persons concerned and to prevent the spread of xenophobic attitudes (see Basu, cited above, § 35). The duty must also be fulfilled in such a way as to afford the person concerned the opportunity to show, without facing insurmountable obstacles, that the act in question was ultra vires or an abuse of power (see, mutatis mutandis, Gillan and Quinton, cited above, § 80).

92.

Lastly, the Court has also observed that the domestic courts must provide sufficiently detailed reasons for their decisions, not least to enable the Court to carry out the European supervision entrusted to it (see, mutatis mutandis, I.M. v. Switzerland, no. 23887/16, § 72, 9 April 2019, and X v. Latvia [GC], no. 27853/09, § 107, ECHR 2013).

A lack of reasoning in domestic decisions, without any real weighing-up of the interests in issue, falls short of the requirements of Article 8 of the Convention (see Platini v. Suisse (dec.), no. 526/18, § 61, 11 February 2020).

The above principles, developed inter alia under Article 8, also apply, mutatis mutandis, to Article 14 of the Convention (see, to this effect, Danilenkov and Others v. Russia, no. 67336/01, § 124, ECHR 2009).

(ii) Application of those principles to the present case

(α) Preliminary remarks

93.

The Court considers it appropriate at the outset to emphasise the major difference between the present case and the Basu and Muhammad cases cited above.

The difference consists in the fact that, in those cases, the applicants themselves instituted criminal and administrative proceedings against the authorities, whereas in the present case the applicant complained of discriminatory treatment in the criminal proceedings brought against him and was obliged to initiate administrative proceedings to have the impugned identity check declared unlawful (see paragraph 19 above) following his conviction on 16 March 2015 for failure to comply with police orders (see paragraph 9 above).

94.

In the light of the relevant principles reiterated above and having regard to the Administrative Court’s finding that there was no objective justification for the identity check to which the applicant was subjected (see paragraph 28 above), the Court takes the view that the competent authorities had a duty to determine whether or not the check and search had been racially motivated.

95.

Lastly, the Court observes that the applicant raised a number of complaints in relation to the establishment of the facts and the gathering of evidence by the competent authorities of the Canton of Zürich. It takes the view that it is not essential that these complaints be addressed definitively and considers it appropriate to focus its examination on the question whether, in the context of the applicant’s appeals seeking to have his conviction overturned and the police check declared unlawful, the competent courts duly examined the allegation of racial profiling, and on the question whether they delivered sufficiently reasoned decisions in that regard (see Muhammad, cited above, § 75).

(β) The criminal proceedings (application no. 43868/18)

96.

Firstly, as to the criminal proceedings, the Court notes that, in its judgment of 7 November 2016, the District Court confined itself to holding that there was no conclusive evidence that the applicant’s skin colour had been a decisive factor in the police officer’s decision to perform an identity check. It observes, moreover, that, on appeal by the applicant, the Cantonal Court held that the available evidence, in particular the statements given by A. and by the applicant, did not give any indication that the check had been conducted on manifestly discriminatory grounds, adding that there was nothing in the manner in which the check had been conducted to suggest that it had been vexatious or discriminatory in nature.

The Court further notes that, in upholding the applicant’s conviction in a judgment of 7 March 2018, the Federal Supreme Court ventured no further than to find that the lower court’s assessment had not been arbitrary. In sum, the Court finds that the applicant’s allegation of racial profiling was not scrutinised in detail by the domestic criminal courts. Lastly, it notes that the District Court, far from conducting a separate investigation into the applicant’s credible allegations of racial profiling, placed the entire burden of proving discriminatory treatment on him.

97.

The Court also observes that it is clear from the relevant domestic practice (see paragraph 40 above) that the only instance in which there is no obligation to comply with a police order is where the order in question is null and void. It notes that, in accordance with the doctrine of “evidence” (Evidenztheorie), an order is null and void in the event of a serious, manifest, or at least easily identifiable irregularity. It observes that the Federal Supreme Court’s case-law shows that an order may be found to be null and void, depending on the circumstances of the case under consideration, on account of particularly serious procedural or formal irregularities, but only very rarely as a result of irregularities in its content.

This being so, the Court considers that an order cannot in general be declared null and void on the ground that it is incompatible with the Convention, such that in the present circumstances the question whether the impugned identity check was based on a discriminatory or, more specifically, racist ground fell outside the scrutiny of the domestic courts.

98.

Lastly, as to the Federal Supreme Court’s reasoning to the effect that the complaint of racial profiling and of a discriminatory motive for the impugned police check was based on a different account of the facts from the one which the first-instance court had found credible, the Court considers it overly formalistic. Moreover, it would point out that the lower court, for its part, had addressed the allegation of racial discrimination, albeit briefly (see paragraph 16 above).

(γ) The administrative proceedings (application no. 25883/21)

99.

Regarding the administrative proceedings, the Court would point out that all three of the administrative authorities of the Canton of Zürich to which the applicant applied dismissed his request to declare the check unlawful on the ground that they were bound by the facts as established by the criminal-law authorities (see paragraphs 23, 25 and 26 above).

100.

The Court further observes that the Administrative Court, in setting aside the lower authorities’ decisions on an appeal by the applicant, concluded that the check of 5 February 2015 had been unlawful, taking the view that there could be no justification for it, even assuming that it had been prompted by the applicant’s having averted his gaze (see paragraph 28 above).

It also notes that the Administrative Court found that, given that the identity check had thus been unlawful in any event, 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.

101.

Lastly, it observes that, on an appeal by the applicant, the Federal Supreme Court held that he did not have a legitimate interest in having the impugned decision quashed or varied and therefore lacked locus standi to lodge an appeal. It follows, the Court notes, that the highest Swiss court itself failed to examine the allegation of racial profiling.

(δ) Conclusion

102.

Having regard to the foregoing considerations, and in particular to the specific circumstances surrounding the identity check and the place – Zürich railway station – where the applicant was subjected to it, the Court finds that the requisite threshold of severity was reached such that the right to respect for private life within the meaning of Article 8 of the Convention is engaged (see paragraph 71 above) and that the applicant has an arguable claim of discrimination on the ground of his skin colour.

It follows that Article 14 of the Convention, taken in conjunction with Article 8, is applicable in the present case. As to the merits, the Court finds that neither the administrative nor the criminal courts examined this complaint in an effective manner (contrast Muhammad, cited above, § 75).

103.

Consequently, there has been a procedural violation of Article 14 of the Convention in conjunction with Article 8 as to the obligation to examine whether discriminatory grounds might have played a part in the identity check to which the applicant was subjected.

2.

Substantive aspect: whether the identity check was discriminatory

(a) The parties’ submissions

(i) The applicant

104.

The applicant argued that, according to the Court’s case-law as reflected, in particular, in the Nachova and Others (cited above, § 157) judgment, where the events lay within the exclusive knowledge of the State authorities, the burden of proof was on the State and the disadvantage resulting from any lack of evidence was also its to bear.

Only the State, he argued, could order fresh interviews of the police officers, gather the relevant statistical data or add documents to the file concerning the criteria for the training or instruction of police officers, yet it had done none of these things. The applicant added that, in principle, it fell to the State to prove that interferences with fundamental rights were justified. He explained that, in such cases, adjustments with regard to the standard of proof were provided for, reiterated that the burden of proof had to be shifted and expressed as follows the rule which, in his view, was established by the Court’s case-law: where there was prima facie evidence of discrimination in the exercise of public authority, it fell to the State to prove that its actions were not discriminatory. He submitted that the case-law and legal opinion in other States in the area of racial profiling corroborated his argument and concluded that, in any event, the burden of proof fell to the State once a difference in treatment had been shown.

105.

The applicant further argued that, even when there was no mention of a protected characteristic as a ground for a police check or when it was impossible to demonstrate a difference in treatment in relation to a specific reference group, a link to a protected characteristic could nevertheless be derived from the check itself, the circumstances in which it had taken place, a general practice in such matters, statistical data, or material relating to the training of police officers. The applicant explained that checks prompted by a negative attitude on the part of the person targeted, imaginary police reasons, or insufficiently plausible suspicion of an offence, were all equally discriminatory.

106.

The applicant submitted that simply stating that other people had also been subjected to checks on the same day did not suffice to refute his allegation of a difference in treatment. Not only was there no evidence that any third parties had been subjected to checks, but the fact that checks might well have been conducted at that time on grounds other than those on which he himself had been the target of such a measure would not in any way serve to determine whether he had thereby been subjected to unequal treatment. In any event, his plausible allegation that nobody else had been subjected to checks had never been challenged or refuted; it had been for the State authorities to adduce evidence to the contrary, which they had not done and had even repeatedly refused to do.

The applicant concluded that there was evidence of a difference in treatment on the day of the check and that, accordingly, the burden of proof should be shifted.

107.

As to the fact that he had averted his gaze, the applicant argued that this was not a sufficient ground for a police check and that this point had been confirmed by the domestic judicial authorities. Eye movement, he explained, was involuntary human behaviour that was observable in anyone faced with unknown persons, as was the case for members of the public encountering police officers in a railway station.

Accordingly, this ground had to be seen as a pretext.

This conclusion was by no means altered by the Government’s arguments to the effect that the police officer – who in their view had rightly considered that averting one’s gaze constituted sufficient grounds for an identity check – had stated that his intent had not been racist.

Racist intent was not necessary to establish discrimination. It was well known that in situations which required swift action there was an instinctual component to the decision a police officer was required to make and that this decision could therefore be based on unconscious bias.

This was especially true of police officers who had not received special training on this type of bias.

108.

The applicant also disputed the argument that the place where the check had been performed should be taken into account. He submitted that this reasoning was inconsistent with the Government’s position that his individual conduct had alone been decisive. He was not persuaded by the police officer’s argument, relayed by the Government, that breaches of the Aliens Act were particularly frequent at railway stations like the one in Zürich.

Such an argument would not explain why he had been the target of an identity check but no one else. The applicant referred to scientific studies according to which, he claimed, when those conducting such checks referred to potential breaches of immigration law, such references could be seen as indicative of the fact that the measure in question had been motivated by the skin colour of the person thereby targeted.

Thus, the reference to the Aliens Act suggested that the police officer had perceived the applicant – a Swiss national – as a foreign national or as an unlawful resident on the ground that he was dark-skinned.

Such reasoning was reminiscent of the reason given by the police officer in the Williams Lecraft v. Spain case – heard by the UN Human Rights Committee (see paragraph 47 above) – to justify the identity check he had carried out, namely, that he was obliged to check the identity of “coloured people”, because many of them did not have residence permits.

109.

Lastly, in the applicant’s view, the lack of cooperation on the part of the State, which had been reluctant to provide information on the training of police officers to prevent racial prejudice and had justified this reticence on the ground that police tactics had to be kept confidential, together with the police officer’s refusal to answer questions on that subject, suggested that police-check tactics were based on the principle of racial profiling.

(ii) The Government

110.

The Government submitted that, as alleged, the discrimination in question would have been direct.

They disputed the applicant’s claim that he had been the victim of indirect discrimination and that the burden of proof should be adjusted in his favour accordingly. In this connection, they argued that indirect discrimination would entail that the application of the neutral, statutory criterion for police checks – namely, suspicion of unlawful conduct – would in itself result in more checks being performed on dark-skinned persons than on light-skinned ones. This was not the case, however. Furthermore, the applicant had not produced any evidence giving rise to a presumption of indirect discrimination that would warrant a shift in the burden of proof, such that it remained for him to establish the existence of a difference in treatment, which the Government would then have to justify, if necessary.

111.

The Government also denied that the present case involved systematic discrimination necessitating the application of rules developed for the sole purpose of alleviating the difficulty a claimant might have in proving discriminatory grounds in such cases.

They added that, even assuming such rules were to be applied, the applicant had provided no statistics in support of his allegations. In their view, it was not for them but for the applicant to present such data. As to the authorities’ refusal of the applicant’s request for pedagogical material in connection with the training of police officers, the Government justified this by the police’s interest in not disclosing their tactics. In any event, it would not have been possible to draw from such material any decisive conclusions as to the conduct of police officers in the field.

112.

The Government submitted that it was clear from the facts established by the national courts that various individuals had been subjected to checks on the same day as the applicant on the basis of factors independent of their skin colour. They therefore rejected the claim that the applicant had been subjected to a difference in treatment in breach of Article 14 of the Convention. They pointed out, referring once more to the facts established by the national courts, that the applicant’s identity had been checked on account of his conduct and that the colour of his skin had not been a decisive factor in the decision to subject him to an identity check.

They explained that Zürich railway station was a place where criminal activity, particularly in connection with breaches of the Aliens Act, was more common than elsewhere, and that it was understandable, in such circumstances, that the police officer who had performed the check had considered the act of averting one’s gaze to be suspicious.

They argued that the officer’s reference to the applicant’s skin colour in the police report and during the subsequent interview was purely descriptive and by no means suggested that there had been a racist motive for his decision to subject the applicant to an identity check. In their view, absent any substantive evidence that unconscious bias had been at work, it could not be concluded that the facts of the case amounted to racial profiling.

113.

The Government further contended that the city of Zürich had adopted effective racial-profiling prevention measures. They explained that, even before the identity check at issue in the present case, the problem had been addressed by the Zürich Mediation Office.

In 2010, that institution had held talks on this subject with officials of the Municipal Police and had set up a biannual “racism round table”, bringing together members of the Municipal Police and representatives of stakeholder organisations. Following the applicant’s identity check, the Zürich Municipal Council had asked the city’s executive to consider ways for the Municipal Police to prevent checks based on racial profiling.

The Municipal Police had also carried out an internal assessment of its practice and had thus established that racial profiling was addressed in all training received by police officers.

Lastly, it had included the theme of racial profiling in various processes and working groups, taken measures to record checks and process the corresponding data for statistical purposes, introduced “diversity management” and adapted its service regulations in line with the recommendations of the Swiss Centre for Expertise in Human Rights with regard to racial profiling.

(b) Observations of the third-party interveners

(i) The French Défenseure des droits

114.

The French Défenseure des droits pointed out that discriminatory identity checks were contrary to the Convention and could engage the responsibility of the State. She referred to the Gillan and Quinton (cited above, §§ 57, 63 and 65) case, where the Court had found that a stop and search by the police had amounted to a deprivation of liberty and an interference with the applicant’s private life, and that the public nature of the search could, in certain cases, compound the seriousness of the interference because of an element of humiliation and embarrassment. She also referred to the Lingurar v. Romania ([Committee], no. 48474/14, § 76, 16 April 2019) judgment, in which the Court had, under Articles 3 and 14, found against the respondent State over the ethnic profiling of members of the Roma community by the police, which had automatically associated membership of that community with criminal conduct.

115.

The Défenseure des droits submitted that the State had substantive positive obligations to combat and prevent racial discrimination, including through legislation regulating the police’s power to stop individuals for checks. She referred in this connection to the Gillan and Quinton (cited above) judgment, in which, she argued, the Court had pointed out that this power had to be surrounded by adequate legal safeguards to protect individuals against the risk of abuse and arbitrariness inherent in a situation where police officers were free to base their decision to subject an individual to a check on their “professional intuition” or merely a “hunch”.

According to the Défenseure des droits, the Court had found that such a risk of abuse was demonstrated by the available statistics, which showed that the power to stop and search was used disproportionately against black and Asian persons.

116.

Lastly, the Défenseure des droits pointed out that the ECRI had specifically recommended establishing a system for recording checks to enable individuals to demonstrate the frequency with which they were subjected to them and to identify any forms of racial discrimination.

In the ECRI’s view, the Défenseure des droits clarified, such a system for monitoring and analysing police practice would make it possible to gain a better understanding of the phenomenon of racial profiling, to measure it and to combat it.

(ii) The Open Society Justice Initiative

117.

The Open Society Justice Initiative followed the same reasoning and pointed to the same sources in the case-law as the French Défenseure des droits.

It added that the Court had held in the Timishev (cited above, § 58) case that no difference in treatment based exclusively or to a decisive extent on a person’s ethnic origin could be objectively justified.

It further argued that a number of national courts in Europe had had occasion to hold that arrests or checks based on a person’s ethnic origin were discriminatory.

As an example, it cited two German judgments, delivered in 2012 and 2016 respectively, in which, it explained, the Rhineland-Palatinate Higher Administrative Court had held that the identity check to which a dark-skinned man had been subjected on a train had been discriminatory, basing its decision on the fact that it could not be convinced that skin colour had not been at least one of the decisive criteria for the check in question (Oberverwaltungsgericht Rheinland-Pfalz, judgments nos. 7 A 10532/12.OVG of 29 October 2012 and 7 A 11108/14.OVG of 21 April 2016).

118.

The Open Society Justice Initiative also pointed out that the European Code of Police Ethics provided that police investigations were, as a minimum, to be based upon reasonable suspicion of an actual or possible offence or crime.

As a corollary, it explained that the Court had considered that “reasonable suspicion” presupposed the existence of facts or information which would satisfy an objective observer that the person concerned might have committed the offence (referring to Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A no. 182), and that suspicion based on stereotyping or generalisations, including the notion that certain groups were more likely to be engaged in criminal activity, could not be regarded as “reasonable” for the purposes of this requirement.

119.

Lastly, the Open Society Justice Initiative proposed several measures which the States parties could take to fulfil their positive obligation under the Convention to combat racism, such as monitoring police activities, including the collection of data relating thereto and adopting measures prohibiting and preventing racial profiling.

(iii) Amnesty International

120.

As to the racial-profiling situation in Switzerland, Amnesty International referred to the following facts. In 2007, it had published a report on policing practices in Switzerland which, it explained, had opened the debate on racial profiling in the country. In Amnesty International’s view, the report had demonstrated that certain police officers displayed racist attitudes towards persons that were subjected to identity checks and that ethnic profiling was practised. Furthermore, the report had documented an increase in identity checks on persons of actual or presumed foreign origin in various cantons as a result of the tightening of asylum and migration laws and policies.

The organisation submitted that these questions had not been addressed by the authorities and that problematic practices persisted. Thus, testimony by victims of racial profiling had recently been published in the press and in research studies. Moreover, a Swiss police trainer and government adviser had stated in the press that around 20% of identity checks conducted by the police were not based on any objective criteria.

121.

It followed, the organisation argued, that racial profiling had not been recognised as a serious concern by the Swiss authorities and that the phenomenon had therefore not been addressed in an appropriate manner. Thus, despite persistent pressure from members of parliament, the Swiss Federal Council had refused to review the practices of border guards and police corps in order to establish the existence of the practice of racial profiling, determine its extent and assess the effectiveness of existing preventive measures. Amnesty International explained that whenever authorities and police officers admitted to cases of racial profiling, they considered them to be the result of individual misconduct or unconscious stereotypes among individual police officers and failed to recognise ethnic profiling as an institutional problem.

122.

Amnesty International further submitted that there was no clear legal framework that imposed limits on identity checks.

In its view, Article 215 of the Code of Criminal Procedure (see paragraph 34 above) allowed checks on persons without concrete suspicion. In addition, there was a lack of statistics regarding racial profiling in Switzerland and the State appeared unwilling to collect data on the subject. In the absence of a uniform monitoring system that provided data in different fields, including disaggregated data that was liable to reveal discriminatory policing practices, too little was known about the extent of racial profiling in Switzerland.

123.

Moreover, Amnesty International submitted that access to justice for victims of human rights violations by the police was often hindered by lack of information, the length and the prohibitive financial costs of criminal and administrative proceedings, the psychologically straining nature of legal proceedings, the risk of further discrimination and the vulnerable situation of foreign nationals without legal status.

The organisation added that the police often responded to criminal complaints filed by alleged victims of human rights violations using counter-accusations of “violence and threats against officers” or similar offences.

(c) The Court’s assessment

124.

The Court reiterates at the outset that States have an obligation to secure the effective enjoyment of the rights and freedoms under the Convention and that this obligation is of particular importance for persons belonging to minorities, because they are more vulnerable to victimisation (see Beizaras and Levickas, cited above, § 108).

This obligation therefore takes on added importance in a case where Article 14 of the Convention, enshrining the prohibition of discrimination, is engaged.

125.

The Court has held in other areas that the most fundamental positive obligation imposed on States consists in implementing a legal and administrative framework which enables them to fulfil their duties under the Convention.

With regard to domestic violence, for example, the Court has observed, in connection with the right to life under Article 2 of the Convention, that States Parties have a positive obligation to establish and apply effectively a system punishing all forms of domestic violence and providing sufficient safeguards for the victims (see Opuz v. Turkey, no. 33401/02, §§ 128 and 145, ECHR 2009).

126.

In very different circumstances, the Court has held that the national law regulating policing operations must secure a system of adequate and effective safeguards against arbitrariness and abuse of force and even against avoidable accidents (see Nachova and Others, cited above, § 97).

Police officers should not be left in a vacuum when performing their duties: a legal and administrative framework should define the limited circumstances in which law-enforcement officials may use force and firearms, in the light of the international standards which have been developed in this respect (see Makaratzis v. Greece [GC], no. 50385/99, §§ 58-59, ECHR 2004-XI).

The Court further observes that law-enforcement agents must be adequately trained to assess whether or not there is an absolute necessity to use firearms (see Nachova and Others, cited above, § 97).

127.

Concerning racial profiling in particular, in its General recommendation No. 36 of 17 December 2020 (see paragraph 43 above), the CERD clarified that States Parties were obliged to actively take steps to eliminate discrimination through their laws, policies and institutions and that they were also to ensure that their domestic legal order contained adequate and effective mechanisms through which to assert that racial profiling had taken place and to bring such a practice to an end.

It also stated that it was of paramount importance that national law enforcement officials were properly informed of their obligations and were sufficiently aware of how to avoid engaging in practices of racial profiling.

128.

Concerning the respondent State in the present case more specifically, in its Concluding observations of 27 December 2021 on the report of Switzerland, the CERD found that the training received by Swiss police officers was insufficient to effectively prevent all racism and all racial profiling on their part (see paragraph 45 above).

129.

Moreover, in its report on Switzerland adopted on 10 December 2019 and published on 19 March 2020, the ECRI recommended further training for the police on the issue of racial profiling and on the use of the “reasonable suspicion standard”.

It also strongly recommended setting up a body independent of the police and prosecution authorities, entrusted with investigating alleged cases of racial discrimination and racially-motivated misconduct by the police (see paragraph 54 above).

130.

In the light of the foregoing considerations, the Court takes the view that the absence of a sufficient legal and administrative framework is liable to give rise to discriminatory identity checks.

131.

The Court reiterates that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007-IV).

Furthermore, the general principles applicable in this area are set out in the Muhammad judgment (cited above, §§ 92-94), among other authorities.

132.

More specifically as to the burden of proof in such matters, the Court has established that once the applicant has demonstrated a difference in treatment, it is for the Government to show that it was justified (see, for example, D.H. and Others, cited above, § 177). As regards the question of what constitutes sufficient prima facie evidence to shift the burden of proof to the respondent State, the Court adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions.

According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.

Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (ibid., § 178).

133.

As to the question whether statistical data can constitute evidence in discrimination cases where the dispute hinges on a difference in the effects of a general measure or de facto situation, the Court will rely extensively on statistics produced by the parties to establish a difference in treatment between two groups (men and women, for example) in similar situations (see Zarb Adami v. Malta, no. 17209/02, §§ 77-78, ECHR 2006-VIII, and D.H. and Others, cited above, § 180).

It may also take into account reports by independent national and international supervisory bodies which have looked into the question (see D.H. and Others, cited above, § 191).

Lastly, the Court reiterates that in certain circumstances, where the events lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of the death of a person within their control in custody, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation of, in particular, the causes of the detainee’s death (see Nachova and Others, cited above, § 157, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).

134.

The Court is aware that, in the Basu judgment (cited above, § 38), having found a breach of the duty to ascertain whether discriminatory grounds might have played a role in the applicant’s identity check, the Chamber declared itself unable to make a finding as to whether the applicant had been subjected to the check on account of his ethnic origin.

It finds, however, that there is at least one decisive point on which the present case differs, such that pursuing the examination of that question in the present context is warranted, namely, the fact that, in the present case, the Administrative Court reached the conclusion, in its judgment of 1 October 2020 (see paragraph 28 above), that the impugned identity check – to the extent that it had been based on the grounds alleged by the police officer who had carried it out – had been unlawful and could not be objectively justified. The Court infers from this conclusion that, in the absence of legitimate grounds for the identity check, there is a strong presumption in the present case in favour of the argument that the check – including the accompanying search – now complained of by the applicant before the Court was carried out on discriminatory grounds.

The Government have failed to present the Court with any evidence apt to rebut this presumption in the particular circumstances of the case. While they submitted that the applicant was not the only person to have been subjected to an identity check on that day, they failed to specify how many others had been subjected to such a check or to provide any other relevant details in that regard. Nor has any explanation been given by the Government in the present case to justify their failure to produce any such evidence in this instance, even though the respondent State alone is in a position to provide information of this nature.

Consequently, the Government’s argument is too vague for the Court to consider it capable of rebutting the presumption of discriminatory treatment.

135.

The Court would further point out that certain international bodies dedicated to the defence of human rights have reported cases of racial profiling by the police in Switzerland (see paragraphs 45 and 54 above), a finding that has been further corroborated by the observations submitted by some of the third-party interveners, in particular Amnesty International (see paragraphs 121-122 above).

Considered as a whole, these reports tend to lend support to the rebuttable presumption that the applicant was subjected to discriminatory treatment (contrast Nachova and Others, cited above, § 157).

For their part, the Government submitted that statistical data on the subject had not been available at the time, a situation indeed complained of by the international bodies and the third-party interveners.

136.

Having regard to the foregoing considerations, the Court, which is well aware of how difficult it is for police officers to decide – very quickly and without necessarily having the benefit of clear domestic guidelines – whether they are faced with a threat to public order or security, concludes that there is, in the present case, a presumption, which the Government have failed to rebut, that the applicant was subjected to discriminatory treatment. Accordingly, there has been a violation of Article 14 of the Convention in conjunction with Article 8.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION (APPLICATION No. 25883/21)

137.

In the context of application no. 25883/21, the applicant complained that there was no effective remedy available to him in respect of his complaint under Article 14 of the Convention in conjunction with Article 8. He relied on Article 13 of the Convention, which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. Admissibility

1.

The parties’ submissions

138.

The Government asked the Court to declare the complaint inadmissible as being manifestly ill-founded.

139.

The applicant disputed that contention.

2.

The Court’s assessment

140.

The Court notes that Article 13 of the Convention guarantees the availability at the national level of a remedy by which to complain of a breach of the Convention rights and freedoms. Therefore, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision, there must be a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief (see, for example, Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 217, 25 June 2019; Soering v. the United Kingdom, 7 July 1989, § 120, Series A no. 161; and De Tommaso v. Italy [GC], no. 43395/09, § 179, 23 February 2017).

141.

The Court would begin by noting that its findings of violations of Article 14 of the Convention in conjunction with Article 8 (see paragraphs 103 and 136 above) are sufficient for the applicant to have an “arguable” claim for the purposes of Article 13 of the Convention (see, to this effect, Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 138, ECHR 2004‑IV).

142.

The Court notes that the complaint under Article 13 of the Convention in relation to the alleged violation of Article 14 in conjunction with Article 8 is neither manifestly ill-founded nor inadmissible on any other grounds within the meaning of Article 35 of the Convention. It therefore declares it admissible.

B. Merits

1.

The parties’ submissions

143.

The applicant submitted that his complaint in respect of the racial discrimination to which he claimed to have been subjected as a result of racial profiling had not been examined in detail by the courts of competent jurisdiction.

144.

For essentially the same reasons as those set forth above under the procedural limb of Article 14 of the Convention in conjunction with Article 8, the Government were of the view that there had been no violation of Article 13 of the Convention. The fact that the Administrative Court had not formally ruled on the question of the discrimination complained of stemmed from the manner in which it had formulated its findings and could not be regarded as a violation of the right to an effective remedy.

2.

The Court’s assessment

145.

The scope of the obligation under Article 13 of the Convention varies depending on the nature of the applicant’s complaint under the Convention, but the remedy must in any event be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the State. In certain circumstances, the aggregate of remedies provided for under domestic law may satisfy the requirements of Article 13 (see, among other authorities, Nicolae Virgiliu Tănase, § 218, and De Tommaso, § 179, both cited above).

146.

As to whether, in the present case, there has been a violation of Article 13 of the Convention in relation to the complaint under Article 14 in conjunction with Article 8 of the Convention, the Court would point out that the Administrative Court, having set aside the domestic authorities’ decisions on an appeal by the applicant and found that the impugned check had been unlawful (see paragraph 28 above), left open the question whether skin colour had played a decisive role in the identity check. For its part, the Federal Supreme Court did not accept that the applicant had a legitimate interest in having the impugned decision quashed or varied and accordingly held that he did not have locus standi to appeal. It follows that the highest Swiss court in turn failed to examine the allegation of racial profiling in the light of Article 14 of the Convention in conjunction with Article 8.

147.

The Court reiterates its findings under the procedural limb of Article 14 of the Convention in conjunction with Article 8, namely, that the applicant’s arguable claim of discrimination on the ground of his skin colour has not been examined in an effective manner by the Swiss courts. For essentially the same reasons, it finds that no effective remedy was available to the applicant in the domestic courts in respect of his complaint of having been subjected to discriminatory treatment during the identity check and search performed on him.

148.

In the light of the foregoing considerations, there has been, with regard to application no. 25883/21, a violation of Article 13 of the Convention in respect of the applicant’s complaint under Article 14 in conjunction with Article 8.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

149.

Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

150.

The applicant did not claim any compensation in respect of the pecuniary and non-pecuniary damage that he alleged.

B. Costs and expenses

151.

In application no. 43868/18 the applicant claimed 3,450 Swiss francs (CHF) for the costs he had incurred in the domestic proceedings, CHF 14,983.50 for his legal representation before the domestic courts and CHF 18,914.50 for his legal representation before the Court. In the context of application no. 25883/21, he claimed CHF 10,197 for his legal representation before the Federal Supreme Court and CHF 14,327 for his legal representation before the Court.

152.

The Government pointed out, firstly, that the applicant had submitted details of the relevant services solely with regard to the cost of legal representation before the domestic authorities and that no particulars or supporting documents had been provided as to the cost of legal representation before the Court. They submitted that, in the light of the Court’s practice, the sum claimed under this head could not be awarded. As to the cost of legal representation before the domestic authorities, the Government argued that, although the applicant had appended to his submissions the details of the services provided, he had not submitted an invoice or any other document showing that the amount in question had indeed been invoiced to him or that he had actually borne the cost in question. Nor had the applicant shown that he had paid the court fees himself. In that connection, they pointed out that internet sources showed that the applicant had received financial support for the proceedings before the domestic courts from various organisations, in particular the association Allianz gegen Racial Profiling, and that the same association had successfully mounted a crowdfunding initiative for the purposes of the present application. The Government added that this association had indicated that it would use the surplus of other funding drives to cover the applicant’s court fees. In the light of these considerations, and absent any documents showing that the applicant had actually borne the costs in question, the Government asked that the Court dismiss his claim under this head.

153.

According to the Court’s case-law an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum (see Dudgeon v. the United Kingdom (Article 50), 24 February 1983, § 20, Series A no. 59). The Court would also point out that a representative’s fees are actually incurred if the applicant has paid them or is liable to pay them (see Merabishvili v. Georgia [GC], no. 72508/13, § 371, 28 November 2017; Luedicke, Belkacem and Koç v. Germany (Article 50), 10 March 1980, § 15, Series A no. 36; and Airey v. Ireland (Article 50), 6 February 1981, § 13, Series A no. 41). The fees of a representative who has acted free of charge are not actually incurred, for example (see McCann and Others v. the United Kingdom, 27 September 1995, § 221, Series A no. 324).

154.

As to the costs incurred in the proceedings before it (CHF 18,914.50), the Court considers that, having regard to the documents in its possession and the above criteria, this claim is not sufficiently substantiated for lack of supporting documents.

Moreover, it takes note of the Government’s submission that crowdfunding was organised to cover the costs incurred before the domestic authorities in the applicant’s case, among others. It cannot be ruled out, therefore, that at least part of those costs may have been borne by third parties. It further notes, lastly, that the applicant was granted legal aid in the amount of EUR 850 (application no. 25883/21). Accordingly, the Court rejects the claim for reimbursement of the costs incurred before it.

155.

However, as regards the sums claimed in respect of the domestic proceedings, the Court considers that the information available on the websites indicated by the Government does not support the conclusion that the financial support organised by third parties generated sufficient resources to cover all the relevant costs and expenses. As regards the court fees (CHF 3,450) and related legal fees (CHF 14,983.50) incurred in the context of application no. 43868/18, the Court considers that the claim is justified, reasonable and detailed. It accordingly awards the applicant the sums in question. As to the sum of CHF 10,197 claimed in application no. 25883/21 in respect of the costs of legal representation before the Federal Supreme Court, the Court considers it excessive. Under this head, it considers it reasonable to award the sum of CHF 4,000.

156.

Having regard to the above considerations, the Court awards the applicant a total of CHF 22,433.50 (or the equivalent of approximately 23,975 euros (EUR)) in respect of costs and expenses incurred in the domestic proceedings, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Decides to join the applications;

Decides to join the question of the compatibility ratione materiae with the Convention of the complaint of a violation of Article 14 of the Convention in conjunction with Article 8 to the merits of the complaint regarding the obligation to examine whether discriminatory grounds may have played a role in the identity check to which the applicant was subjected;

Declares the applications admissible;

Holds that Article 14 of the Convention, read in conjunction with Article 8, is applicable in the present case and that there has been a procedural violation of that provision as to the obligation to examine whether discriminatory grounds may have played a role in the identity check to which the applicant was subjected;

Holds that there has been a substantive violation of Article 14 of the Convention in conjunction with Article 8 on account of the discriminatory nature of the identity check to which the applicant was subjected;

Holds that there has been a violation of Article 13 of the Convention in relation to the applicant’s complaint under Article 14 in conjunction with Article 8, with regard to application no. 25883/21;

Holds that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 23,975 (twenty-three thousand nine hundred and seventy-five euros), to be converted into Swiss francs at the rate applicable at the date of settlement, plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Dismisses, the remainder of the applicant’s claim for just satisfaction.

Done in French, and notified in writing on 20 February 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Pere Pastor Vilanova

Registrar President