| Applicant name | WA BAILE |
| Applicant type | natural person |
| Number of applicants | 1 |
| Country | Switzerland |
| Application no. | 43868/18 25883/21 |
| Date | 20/02/2024 |
| Judges | Father Pastor Vilanova , President , Jolien Schukking, Georgios A. Serghides, Darian Pavli, Peter Roosma, Ioannis Ktistakis, Andreas Zünd |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | Violation (8+14) |
| Reason | Positive obligation |
| Type of privacy | Procedural privacy; private life |
| Keywords | ratione personae; ratione materiae; discrimination |
| Facts of the case | The applicant claims that the identity check to which he was subjected, the search he underwent and the fine imposed on him amount to discrimination based on the colour of his skin. He relies on Article 14 of the Convention taken in conjunction with Article 8. |
| Analysis | The Court discusses two questions concerning the admissibilityof the case. First, the question whether the applicant can claim to be a victim. Although the domestic courts had recognised the unlawfullness of the check, this does not deprive him from his status of victim for the purposes of the Convention. Second, on the material scope of the case, the Court refers to the cases of Muhammad and Basu, in which it found that a complaint of racial profiling based on an identity check was discriminatory may fall within the scope of the right to respect for private life within the meaning of Article 8 of the Convention and that, consequently, Article 14 of the Convention taken in conjunction with Article 8 is applicable in such cases. In order to assess whether the threshold of seriousness has been reached in a specific case, the person concerned must put forward an arguable complaint that he or she was targeted on the basis of his or her physical or ethnic characteristics. Such an arguable complaint may exist in particular where the person concerned (or persons with similar characteristics) claim to have been the only individual(s) subject to a stop and where the stop was not based on any other obvious grounds capable of justifying it or where certain explanations given by the police officer carrying out the stop indicate that it was based on particular physical or ethnic grounds. Furthermore, in the above-mentioned cases, the Court attached some importance to the fact that the stops in question took place in public spaces, a circumstance which may have a negative effect on reputation and self-respect. The Court finds that that the present complaint falls under the Convention ratione materiae. Moving to the substance of the case, the ECtHR assesses whether the competent courts duly examined the allegation of racial profiling and whether they gave sufficiently reasoned decisions in this regard. First, as to the criminal proceedings, the Court considers that the applicant’s allegation of racial profiling was not subject to a thorough review and that far from conducting a separate investigation of the applicant’s credible allegations of racial profiling, the domestic courts placed the burden of proving that he had suffered discriminatory treatment entirely on him. Second, as to the administrative procedure, the national courts considered that the stop was unlawful regardless of the hypothesis adopted in this regard, the question of whether the colour of the applicant’s skin had played a determining role in the police officer’s decision to subject him to a stop remained open. Consequently, there has been a procedural violation of Article 14 of the Convention taken in conjunction with Article 8 as regards the obligation to determine whether discriminatory motives may have played a role in the identity check to which the applicant was subjected. |
| Other Article violation? | Yes, 13+8 |
| Damage awarded | 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, the sum of EUR 23,975 (twenty-three thousand nine hundred and seventy-five euros), to be converted into Swiss francs at the rate applicable on the date of settlement, plus any tax that may be chargeable to the applicant on this sum, in respect of costs and expenses ; |
| Documents | Judgment |