Racial Profiling by the Police during Identity Check: European Court of Human Rights rules against Switzerland

26-02-2024

Burak Tahsin Bahce

International Justice and Human Rights Intern

Global Human Rights Defence

On 20 February 2024, the European Court of Human Rights delivered its judgment on a complaint of a Swiss national, concerning his racial profiling during an identity check by the police officers and subsequent proceedings. The Court found that there had been violations of the procedural and substantial aspects of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private life), and Article 13 (right to an effective remedy) in connection with these rights. [1]

In 2015, the applicant, Mohamed Shee Wa Baile, while on his way to work, was stopped for an identity check by police officers at Zurich Railway Station. He refused to comply with their order, followed by that the officers took him aside and then searched his pockets and backpack. After they found and confirmed his identity document, they allowed him to leave. He was then subjected to a criminal proceeding lasting from 2015 to 2016, for having refused to comply with the police officers` orders. He defended himself by arguing that the identity check had been based on racial profiling, and was, however, ultimately fined 100 Swiss Francs by the domestic court. Subsequently, he initiated an administrative proceeding before the Municipal authorities, relying particularly on the prohibition of discrimination. After they dismissed his application by finding that they were bound by the facts as established by criminal courts, he appealed before the administrative courts which set aside the administrative decision and held that the identity check in question was unlawful but left the question as to prohibition of discrimination to remain open. Upon that, the case was brought before the European Court of Human Rights. [2] Amnesty International, Open Justice Initiative, and the Defender of Rights intervened in it as third parties.

As to the procedural aspect of Article 14 in conjunction with Article 8, the Court noted that criminal courts have not reviewed in detail the applicant`s allegation of racial profiling, and shifted onto him the entire burden of proof concerning that he had been subjected to discriminatory treatment. The administrative proceeding, on the other hand, as the Court noted, although found the identity check unlawful, failed to examine the question of whether the applicant’s skin color had played a decisive role in the police officer’s decision to subject him. For these reasons, finding that the requisite threshold of severity had been reached such that the right to respect for private life within the meaning of Article 8 was engaged, the Court held there had been a violation of the procedural aspect of Article 14 in conjunction with Article 8. [3]

As to the substantial aspect of Article 14 in conjunction with Article 8, the Court, remarkably, referred to the reports issued by international organizations. Accordingly, the UN Committee on the Elimination of Racial Discrimination, in its Concluding Observation on Switzerland, had considered that the training received by Swiss police officers was insufficient to prevent, in an effective manner, any racism or racial profiling on their part. [4] Furthermore, the Court noted that the Council of Europe’s European Commission against Racism and Intolerance had recommended Switzerland that further training be given to police on the issue of racial profiling and the use of the “reasonable suspicion standard”, and also strongly recommended that a body be set up that was independent of the police and prosecution authorities and entrusted with the investigation of alleged cases of racial discrimination and racially-motivated misconduct by the police. [5] The Court also pointed out the third-party civil human rights organizations` reports and observations concerning cases of racial profiling by the police in Switzerland. [6] Considering as a whole further corroborated by these observations, the Court concluded that they tended to lend support to the rebuttable presumption that the applicant had been subjected to discriminatory treatment. Therefore, while expressing its awareness of how difficult it was for police officers to decide very quickly and without necessarily having the benefit of clear domestic guidelines – whether they were faced with a threat to public order or security, it reached a presumption in favor of the applicant and found that there had also been a violation of the substantial aspect of Article 14 in conjunction with Article 8. [7]

Lastly, as the Court had already found the applicant’s arguable claim of discrimination on the ground that his skin color had not been effectively examined by the Swiss courts, it found that no effective remedy had been available to the applicant, and, therefore, there had also been a violation of Article 13 in connection with the main claims of the complaint.

Besides the overall outcome of the judgment, it was particularly relevant as the Court widely relied on the other international institutions` reports as well as the civil organizations` observations to reach or support its conclusions of the substantial aspect of the complaint. It showed us again that the monitoring activities and amicus curiae efforts have an important strategic role in clarifying systemic domestic deficiencies and repetitive violations before the international human rights mechanisms.

Sources and further readings:

[1] Wa Baile v Switzerland, Applications nos 43868/18 and 25883/21 (ECHR, 20 February 2024).

[2] Police failed to observe non-discrimination principle during identity check in Zürich railway station, ECHR 045 (2024) (The Registrar of the European Court of Human Rights, 20 February 2024).

[3] Wa Baile v Switzerland, para 89-103.

[4] ibid, para 127-128; UN Committee on the Elimination of Racial Discrimination, `Concluding observations on the combined tenth to twelfth periodic reports of Switzerland´, 27 December 2021, UN Doc CERD/C/CHE/CO/10-12.

[5] Wa Baile v Switzerland, para 129; European Commission against Racism and Intolerance, ` Sixth report on Switzerland´, 10 December 2019 < 16809ce4bd (coe.int)> accessed on 24 February 2024.

[6] ibid, para 135.

[7] ibid, para 124-136.