Information Note on the Court’s case-law
October 2022
Basu v. Germany - 215/19
Judgment 18.10.2022 [Section III]
Article 14
Discrimination
Lack of independent effective investigation into arguable allegations of racial profiling by police during identity check on a train: violation
Facts – In July 2012 two police officers carried out an identity check on the applicant, a German national of Indian origin, and his daughter, on a train which had just passed the border from the Czech Republic to Germany. The applicant asked the police officers why he was checked, and they said it was a random check. One of them later added that cigarettes were frequently smuggled on that train, but confirmed that there had not been any specific suspicion in respect of the applicant in this regard. The administrative courts declined to examine the merits of the applicant’s complaint about having been treated in a discriminatory manner by the identity check.
Law – Article 14 taken in conjunction with Article 8:
(a) Applicability – Not every identity check of a person belonging to an ethnic minority attained the necessary threshold of severity so as to fall within the ambit of the right to respect for that person’s private life. That threshold was only attained if the person concerned had an arguable claim that he or she might have been targeted on account of specific physical or ethnic characteristics. Such an arguable claim might notably exist where the person concerned had 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 had been apparent or where any explanations of the officers carrying out the check disclosed specific physical or ethnic motives for the check. In this regard, the public nature of the check might have an effect on a person’s reputation and self-respect.
The applicant had been subjected to an identity check by the police in public, on a train. In his submission, that check had only been carried out because of his dark skin colour and thus on racial grounds. He had substantiated that allegation by his observation that of the persons present in different compartments of the train carriage, he and his daughter had been the only persons with a dark skin colour and the only persons who had been subjected to the check. Furthermore, the explanations given by the police officer who had carried out the check had not disclosed any other objective grounds for targeting the applicant. The Court therefore could not agree with the Government’s argument that in those circumstances, there was no arguable claim that the applicant had been targeted on account of specific physical or ethnic characteristics. The applicant had further argued that the identity check under those conditions had had serious negative effects on his private life as he had felt so stigmatised and humiliated that he had stopped travelling by train for several months.
The applicant had substantiated his argument that the identity check by the police under these special circumstances had had sufficiently serious consequences for his right to respect for his private life. The identity check in question therefore felt within the ambit of Article 8. Accordingly, Article 14 was applicable.
Conclusion: Article 14 taken in conjunction with Article 8 applicable.
(b) Merits – Generally, duties to investigate served to ensure accountability through appropriate criminal, civil, administrative and professional avenues. In this context, the State enjoyed a margin of appreciation in determining the manner in which to organise its system to ensure compliance with the Convention (F.O. v. Croatia). The Court had previously recognised a duty to investigate in the context of Article 8 in certain circumstances in respect of acts of private individuals Moreover, the Court had not excluded the possibility that the State’s positive obligation under Article 8 to safeguard an individual’s integrity might extend to questions relating to the effectiveness of an investigation. It found that an obligation to investigate should even less be excluded in the context of Article 8 in relation to acts of State agents if the applicant made an arguable claim that he had been targeted on account of specific physical or ethnic characteristics.
A duty of the authorities to investigate possible racist attitudes might be implicit in their responsibilities under Article 14 in certain circumstances. In the context of alleged violations of Article 14 taken in conjunction with Article 3, State authorities had an obligation to take all reasonable measures to identify whether there had been racist motives and to establish whether or not ethnic hatred or prejudice might have played a role in the events. The authorities had to do what was reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that might be indicative of racially induced violence. For an investigation to be effective, the institutions and persons responsible for carrying it out had to be independent of those targeted by it. This meant not only a lack of any hierarchical or institutional connection but also practical independence. The authorities’ responsibilities under Article 14 to secure respect without discrimination for a fundamental value might also come into play when possible racist attitudes resulting in the stigmatisation of the person concerned were at issue in the context of Article 8.
In the context of an arguable claim of racial discrimination, racial discrimination as prohibited by Article 14 was a particularly egregious kind of discrimination and, in view of its perilous consequences, required from the authorities special vigilance and a vigorous reaction. The Court referred in this context also to the ECRI’s finding that racial profiling, in particular, resulted in the stigmatisation and alienation of the persons concerned by it.
In the light of the above elements, once there was an arguable claim that the person concerned might have been targeted on account of racial characteristics and such acts, under the threshold conditions set out above, felt into the ambit of Article 8, the authorities’ duty to investigate the existence of a possible link between racist attitudes and a State agent’s act was to be considered as implicit in their responsibilities under Article 14 also when examined in conjunction with Article 8. This was essential in order for the protection against racial discrimination not to become theoretical and illusory in the context of non-violent acts falling to be examined under Article 8, to ensure protection from stigmatisation of the persons concerned and to prevent the spread of xenophobic attitudes.
In the Government’s submission, the superior police authority to the Office of the Federal Police, for which the police officer, who had conducted the check, worked, had carried out an internal investigation into the incident. However, in view of the hierarchical and institutional connections between the investigating authority and the State agent which had carried out the act in question, the investigations in this regard could not be considered as independent.
As for the proceedings before the administrative courts, those courts had declined to examine the merits of the applicant’s complaint about having been treated in a discriminatory manner by the identity check. Despite an arguable claim that the applicant might have been the victim of racial profiling, they had failed to take the necessary evidence and, in particular, failed to hear the witnesses who had been present during the identity check. They had dismissed the applicant’s action on formal grounds, considering that the applicant had not had a legitimate interest in a decision on the lawfulness of his identity check.
In these circumstances, the State authorities had failed to comply with their duty to take all reasonable measures to ascertain through an independent body whether or not a discriminatory attitude had played a role in the identity check, and thus had failed to carry out an effective investigation in this regard. Therefore, the Court was unable to make a finding as to whether the applicant had been subjected to the identity check on account of his ethnic origin.
Conclusion: violation (unanimously).
Article 41: no award (in the absence of any claim of just satisfaction).
(See also Gillan and Quinton v. the United Kingdom, 4158/05, 12 January 2010, Legal summary; Denisov v. Ukraine [GC], 76639/11, 25 September 2018, Legal summary; Volodina v. Russia, 41261/17, 9 July 2019, Legal summary; Vig v. Hungary, 59648/13, 14 January 2021; F.O. v. Croatia, 29555/13, 22 April 2021, Legal summary; Tunikova and Others v. Russia, 55974/16 et al., 14 December 2021, Legal summary; Y and Others v. Bulgaria, 9077/18, 22 March 2022, Legal summary; Muhammad v. Spain, 34085/17, 18 October 2022, Legal summary)
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This summary by the Registry does not bind the Court.
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