Information Note on the Court’s case-law
October 2022
Muhammad v. Spain - 34085/17
Judgment 18.10.2022 [Section III]
Article 14
Discrimination
Allegations of racial profiling by police during identity check on a street duly examined and found unsubstantiated by administrative courts: no violation
Facts – The applicant and his friend, both Pakistani nationals, were stopped by the police whilst walking on a street in a tourist area in which pickpocketing and thievery were relatively frequent. The applicant was asked for his identification. He claimed that when he asked whether he had been checked because of the colour of his skin, one of the officers confirmed this to be the case and that they would not have stopped a “German”. These facts were contested by the police. The applicant was arrested and taken to a police station where he was given an administrative fine for having refused to identify himself, displaying a “lack of respect towards the authority” and “showing an insolent attitude”. Administrative proceedings brought by the applicant in the form of a State liability claim, complaining that the identity check had been discriminatory, were discontinued on the ground that he had not properly substantiated his allegation. His appeals thereto were dismissed. Criminal proceedings were also initiated but were discontinued for lack of evidence of the commission of any criminal offence.
Law – Article 14 taken in conjunction with Article 8:
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. The person concerned had to have an arguable claim that he or she might have been targeted on account of specific physical or ethnic characteristics. Such a claim might 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 of the officers carrying out the check disclose specific physical or ethnic motives for the check. The public nature of the check might also have an effect on a person’s reputation.
The applicant had been subjected to an identity check by the police in public, on the street, allegedly because of his dark skin colour and thus on racial grounds. The check had necessarily affected his private life and would have been sufficient to affect his psychological integrity and ethnic identity, for the purposes of Article 8. Hence the identity check in question fell within the ambit of Article 8. Accordingly, Article 14 was applicable.
Merits –
(a) As regards the complaint concerning the domestic authorities’ failure to carry out an effective investigation
(i) Whether the State was under an obligation to investigate possible racist motives – 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. It had also 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. 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. In cases where discrimination on the grounds of race was alleged, a special duty of investigation arose; racial discrimination was a particularly egregious kind of discrimination and, in view of its perilous consequences, required special vigilance and a vigorous reaction from the authorities.
Where the State authorities investigated violent incidents, there was an additional obligation to identify whether ethnic prejudice might have played a role. Even in those cases, proving racial motivation would often be extremely difficult in practice. The respondent State’s obligation to investigate possible racist overtones to a violent act was an obligation to use best endeavours and not absolute. The authorities must do what is 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.
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. It was even more so when the said attitudes were displayed not by private individuals but by State agents.
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, fell 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.
(ii) Whether the obligation to investigate was complied with –The Court was concerned about any manifestation of racial discrimination on the part of the public authorities and had repeatedly stressed the importance of conducting an investigation with vigour and impartiality where there was a suspicion that racial attitudes induced violent acts. However, it could not accept that the applicant’s situation had amounted to an act of violence; he had merely been requested to show his identity documents – something which he had been, like anyone else in Spain, required to do under the law. The police officers had been identified, had not denied having asked the applicant to show his documents, and their testimony had been taken into account in both the criminal and the administrative proceedings.
At the material time there had been an appropriate legal avenue for the applicant to seek a remedy for the racial discrimination he had allegedly suffered: both criminal and administrative proceedings. However, his complaint and its effects had to be assessed only within the legal framework of the latter proceedings as the applicant had not appealed against the decisions to discontinue the criminal proceedings. Administrative proceedings were different in nature from criminal proceedings. The former had been discontinued on the ground that the applicant had not properly substantiated his allegation that the identity check had been motivated by racial discrimination. Not all the evidence which had been relevant in the criminal proceedings had been pertinent to the administrative proceedings, where the subject of the complaint had been different.
The domestic courts had assessed the evidence before them and concluded that no liability could be established on the part of the public authorities under the relevant domestic law. Moreover, the applicant had had the opportunity to appeal against the central administrative court’s decision concerning the admissibility of the evidence, as well as the ensuing decision to dismiss the State liability claim. From a procedural aspect, the applicant had been able to challenge the domestic courts’ decisions, which had been sufficiently reasoned and motivated.
Conclusion: no violation (four votes to three)
(b) As regards the complaint concerning the allegedly discriminatory grounds for the police check and the arrest of the applicant – Neither the identity check nor the arrest had taken place in the presence of the applicant’s family members or in his neighbourhood. His friend, also Pakistani, had not been arrested and both the police and Government had denied that he had also been requested to identify himself. In the State liability proceedings, the applicant had relied heavily on the fact that nobody else belonging to the “majority Caucasian population” had been stopped on the same street immediately before, during or after his identity check. This, however, could not be taken as an indication per se of any racial motivation behind the request for him to show his identity document. The applicant had not shown any surrounding circumstances which could suggest that the police had been carrying out identity checks motivated by animosity against citizens who shared the applicant’s ethnicity, or which could give rise to the presumption required to reverse the burden of proof at the domestic level as to the existence of any racial or ethnic profiling. There was no reason thus for the Court to depart from the domestic courts’ conclusion that the applicant’s attitude, and not his ethnicity, was what had caused the police officers to stop him and to identify him. It had only been his refusal to show proof of his identity that had caused his detention in order to be identified at the police premises, as provided by the applicable law.
The applicant had submitted reports aimed at proving that racially motivated identity checks were a pervasive practice of the Spanish police forces. It was true that a number of organisations, including intergovernmental bodies, had expressed concern regarding the occurrence of racially motivated police identity checks. However, the Court could not lose sight of the fact that its sole concern in the case at hand was to ascertain whether the fact that the applicant had been required to identify himself on the street had been motivated by racism. As was also mentioned by the central administrative court, the issue at stake was limited to finding out whether the applicant suffered harm which he had not been obliged to suffer, caused by the normal or abnormal functioning of the public authorities (in this instance, the police), and in that case, to award him compensation. The domestic judicial authorities had also noted that the same facts had been assessed by a criminal court in criminal proceedings which had been discontinued for lack of evidence of a racially motivated offence. Indeed, the Spanish legal framework included measures against discrimination on the basis of race or ethnicity (including rules for the reversal of the burden of the proof) and administrative and criminal sanctions for acts that constituted or promote racism. However, in the framework of administrative proceedings, neither the alleged harm suffered by the applicant nor the existence of a causal link with the functioning of the police forces could be established.
It had not thus been established that racist attitudes had played a role in the applicant’s identity check by the police and his arrest in that context.
Conclusion: no violation (four votes to three)
(See also D.H. and Others v. the Czech Republic [GC], 57325/00, 13 November 2007, Legal Summary; B.S. v. Spain, 47159/08, 24 July 2012, Legal Summary; Basu v. Germany, 215/19, 18 October 2022, Legal summary)
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This summary by the Registry does not bind the Court.
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