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Article Switzerland: European Court of Human Rights Finds Swiss Police Guilty of Racial Profiling

On February 20, 2024, the European Court of Human Rights (ECtHR) held unanimously that the Swiss police had discriminated on the basis of race when performing an identity check on the applicant at the Zurich railway station. Furthermore, the ECtHR found that no effective remedy had been available to the applicant in the Swiss domestic courts in respect of his complaint. These actions violated article 14 (prohibition of discrimination) in conjunction with article 8 (right to respect for private life) and article 13 (right to an effective remedy) of the European Convention on Human Rights (ECHR).

Facts of the Case

The applicant, Mohamed Shee Wa Baile, is a Swiss national. In 2015, the Zurich municipal police performed an identity check on him at the Zurich railway station when he was on his way to work. He did not comply with their orders and was therefore taken aside and searched until the police found a document that established his identity. He was permitted to leave after that. Criminal proceedings for not complying with the police orders were brought, and he was convicted and sentenced to pay a fine of 100 Swiss francs (about US$114). (Decision paras. 2, 4, 9.)

Wa Baile alleged that the Swiss police had based the identify check on racial profiling in violation of the prohibition on discrimination and moved to have the identity check declared unlawful. However, the municipal police, the municipal council, and the Zurich district office all rejected his claim, stating that they were bound by the findings of the criminal authorities. In 2020, he appealed to the Zurich Cantonal Administrative Court, which held that the identity check was unlawful but did not rule on the question of race discrimination. The Swiss Federal Supreme Court declared his subsequent appeal inadmissible. (Paras. 19–30.) The applicant therefore submitted a complaint to the ECtHR alleging that the identity check constituted discrimination on the basis of his skin color in violation of article 14 in conjunction with article 8 of the ECHR and that the authorities failed to investigate his claims properly. (Para. 57.)

Decision

The ECtHR found in favor of the applicant.

The ECtHR recalled that article 14 of the ECHR is violated if there is an unequal treatment of persons in equal situations and there is no objective and reasonable justification for the unequal treatment. Racial discrimination is a particularly egregious kind of discrimination, and its perilous consequences require special vigilance and a vigorous reaction from the authorities. (Para. 90.) In the opinion of the court, state authorities are therefore required to investigate whether there were racist motives for the act in question. In the applicant’s case, they failed to examine whether there were racist motives for the identity check and placed the burden of proof on the applicant. The ECtHR concluded that, in particular given the circumstances and the public place, the applicant could assert an arguable complaint of discrimination on the basis of his skin color, which the courts failed to examine, thereby resulting in a procedural violation of article 14 in conjunction with article 8 of the ECHR. (Paras. 91, 94, 96, 102.)

The ECtHR reiterated that states have a positive obligation to ensure the effective enjoyment of the rights and freedoms guaranteed by the ECHR, in particular for minorities. This obligation entails putting into place a legal and administrative framework that enables state authorities to fulfill their duties, such as define the conditions under which law enforcement officials can use force and use firearms and provide training to them to avoid engaging in racial profiling, among other things. Relying on several reports on the topic, the court concluded that the training of Swiss police officers was insufficient to effectively prevent any racism and racial profiling on their part, which likely gave rise to discriminatory identity checks. In the opinion of the court, the government failed to refute this presumption of discriminatory treatment, causing another violation of article 14 in conjunction with article 8. (Paras. 124–130, 136.)

Lastly, the ECtHR recalled that article 13 of the ECHR requires state parties to offer effective domestic remedies and appropriate relief when a violation of the ECHR has occurred. As already outlined when discussing the violation of article 14 in conjunction with article 8, no effective remedy was available to the applicant because the courts did not examine his claims. (Paras. 140, 145, 147.)

Jenny Gesley, Law Library of Congress
March 6, 2024

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Chicago citation style:

Gesley, Jenny. Switzerland: European Court of Human Rights Finds Swiss Police Guilty of Racial Profiling. 2024. Web Page. https://www.loc.gov/item/global-legal-monitor/2024-03-05/switzerland-european-court-of-human-rights-finds-swiss-police-guilty-of-racial-profiling/.

APA citation style:

Gesley, J. (2024) Switzerland: European Court of Human Rights Finds Swiss Police Guilty of Racial Profiling. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2024-03-05/switzerland-european-court-of-human-rights-finds-swiss-police-guilty-of-racial-profiling/.

MLA citation style:

Gesley, Jenny. Switzerland: European Court of Human Rights Finds Swiss Police Guilty of Racial Profiling. 2024. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2024-03-05/switzerland-european-court-of-human-rights-finds-swiss-police-guilty-of-racial-profiling/>.