The ECtHR Advances the Battle against Racial Profiling in Wa Baile c. Suisse

On 20 February 2024, the European Court of Human Rights (hereafter ECtHR or the Court) decided in the case of Wa Baile c. Suisse (in French only) on racial profiling. This blog argues that the judgment represents a cautious step forward in the fight against racial profiling and repairs some shortcomings of earlier case law. The ECtHR critically scrutinises procedures at the national level but does not stop there. It holds that Switzerland violated both the procedural and substantive aspects of Article 14 in combination with Article 8 ECHR. Regarding the substantive violation, the ECtHR reverses the burden of proof and accepts that both the lack of an adequate preventive framework and reports by international human rights bodies and NGOs contribute to establishing a presumption of discrimination. In doing so, it shows itself aware of the nature of racial profiling as a form of structural discrimination. This blog post briefly discusses the notion of racial profiling and its prevalence in Europe before analysing the emerging line of ECtHR case law on the topic and its elaboration in Wa Baile c. Suisse.

Racial profiling in Europe

Racial profiling (also referred to as ethnic profiling) involves the use of racialised characteristics –including skin colour but also nationality, surname or place of birth – to categorise and select people for the purpose of law enforcement. The EU Fundamental Rights Agency (FRA) distinguishes between reactive profiling, with the purpose of identifying a specific individual upon suspicion of a crime that has already been committed, and predictive profiling, whereby personal characteristics are used to make assumptions about who will display unlawful behaviour. The harm of reactive racial profiling is poignantly illustrated by the Netflix series “When they see us”, which shows how the lives of five young men in the United States are wrecked after they are falsely identified as suspects of rape and assault based on the colour of their skin (a film and opera were also made about the case). Meanwhile, predictive racial profiling relies on general correlations that relate racialised features to certain forms of unlawful behaviour. Even when such correlations are statistically correct and not inferred from already biased data, it remains the case that they provide information about groups rather than specific individuals within those groups. Consequently, predictive racial profiling involves selecting people for controls who, because of their skin colour, surname or nationality, are considered more likely to engage in unlawful conduct. Such profiling stigmatises those affected and is likely to reinforce stereotypes and subsequent discrimination against racialised groups.

Racial profiling is a persistent problem in the Council of Europe as noted by the CoE Commissioner for Human Rights in 2019. The most recent FRA report on the topic shows that more than half the people of African descent who were stopped by police in 2022 believed this to be because of discriminatory racial profiling. Besides policing, racial profiling by public authorities is known to occur in other contexts, including border controls and the detection of welfare fraud (for an example of the harm this can lead to, see the Dutch childcare benefits scandal). Technological developments of the past ten to fifteen years have resulted in increased use of profiling in general as well as algorithmic profiling, whereby correlations are inferred from large datasets in automated processes (FRA 2018).

Racial profiling in Strasbourg: the ECtHR steps in

Given the prevalence of racial profiling in the Council of Europe and its discriminatory effects on racialised groups, it is not surprising that the issue has come before the ECtHR. After briefly touching upon the matter in Gillan and Quinton v. the United Kingdom (para 85), the Court used the term “ethnic profiling” for the first time in Lingurar v. Romania, concerning a violent police raid on a Roma community. In that case, the raid, as well as the use of force against the applicants, were motivated by the stereotypical perception of Roma as a group prone to criminal and anti-social behaviour. This led the ECtHR to find that: “The authorities automatically connected ethnicity to criminal behaviour, thus their ethnic profiling of the applicants was discriminatory” (para 76).

While the responsible actors in Lingurar openly used racial criteria to justify the deployment of police powers, this was not so in the twin cases Basu v. Germany and Muhammad v. Spain, decided a few years later. Like Mr Wa Baile, the applicants alleged having been controlled by police because of their foreign origin, which was denied by the respondent States. In Basu and Muhammad, the ECtHR established that racial profiling can fall within the scope of Articles 14 and 8 ECHR, notwithstanding that it did not result in a subsequent interference with the mental or physical integrity of the applicant. Even an identity check, without any further consequences, can come within the ambit of the right to private life if “the person concerned has an arguable claim that he or she may have been targeted on account of specific physical or ethnic characteristics” (Basu, para 25).

However, the majority of judges in Basu and Muhammad did not follow up on their initial openness towards addressing racial profiling when it came to assessing the available evidence. As a result, the Court did not find a substantive violation of the prohibition of discrimination in either case, although in Basu it held that the German authorities had failed to effectively investigate the applicant’s claim. When assessing cases under Article 14 ECHR, the ECtHR commonly applies a reversal of the burden of proof. Under this doctrine, it suffices for the applicant to adduce evidence of a difference in treatment. This then creates a presumption of discrimination, causing the burden of proof to shift to the respondent government to show that the difference was justified (for example, Fábián v. Hungary, para 116). Yet, in Basu and Muhammad, the Court failed to establish a presumption of discrimination capable of shifting the burden of proof to the respondent States.

This reticence was criticised both within the Court (see the (partly) dissenting opinions of Judge Pavli in Basu and Judges Zünd and Krenc in Muhammad) and in academic commentaries (for example, here and here). According to Judge Pavli, the fact that the national authorities had done too little to ascertain the facts surrounding the check performed on Mr Basu should have led to a presumption of racial profiling. In Muhammad, the ECtHR disregarded the evidence provided by the applicant, consisting of statistical expert reports, news articles and reports by human rights bodies and NGOs, to show that racial profiling by police was widespread in Spain. The explanation provided by the Court was that “its sole concern in the case at hand is to ascertain whether the fact that the applicant was required to identify himself […] was motivated by racism” (para 100). The applicant was thus effectively required to prove racist intent on the part of the police officers who stopped him. Such a burden of proof is not only very difficult to meet but also denies the structural nature of the discrimination involved in racial profiling, which results from widespread stereotypes embedded in laws, procedures and patterns of behaviour, that produce conscious as well as unconscious bias (Glaser 2015).

Wa Baile: towards more robust protection against racial profiling

Turning now to the judgment in Wa Baile c. Suisse, there is no doubt that the Court has paid heed to the above criticism. The facts of the case resemble those in Basu and Muhammad. The applicant was stopped for an identity check at Zürich station one morning on his way to work. He refused to identify himself and was taken apart and searched until the police eventually found his ID card and let him go. He was, however, served a fine for failing to comply with police orders, which he contested, stating that the decision to stop him had been based on racial profiling. This was denied by the police, who claimed that the applicant had behaved suspiciously by turning away his eyes when he encountered the police at the station and that he had been stopped on the suspicion that he was unlawfully resident in Switzerland.

The applicant appealed the fine before the criminal court and instituted administrative procedures to have the identity check declared unlawful. The criminal courts, acknowledging that the basis for the control was “fragile”, nevertheless held that the facts as established did not reveal a discriminatory motive on the part of the police. In the courts’ view, it had to be taken into account that police officers conducting identity checks had very little time to decide whether or not to stop someone and that Zürich station was a place where controls to detect unlawful residence could be expected. Given that unlawful residence does not manifest itself through clearly visible signs, the court found that the standard for the justification of controls should not be set too high. By contrast, the administrative court upheld the applicant’s claim, stating that the identity check had not been based on sufficient reasons and was therefore unlawful. However, it did not establish that the applicant had been subject to racial profiling. The applicant’s request to explicitly declare a violation of his rights under Articles 14 and 8 ECHR was found to lack sufficient interest, as it would not change the already existing finding of unlawfulness.

The obligation to investigate racist motive

The ECtHR confirms that the national authorities violated their procedural obligation under Article 14 ECHR, read together with Article 8, to effectively investigate the applicant’s claim of racial profiling. At first sight, this finding does not add anything to the judgment in Basu. It is noteworthy, however, that the violation in Basu occurred because the investigation had not been conducted by an independent body. In Wa Baile, the ground for the violation is more substantial: although the applicant’s claim had been treated by a variety of instances, administrative and judicial, all of them failed to address the question of whether the identity check and the subsequent search had been based on racial criteria. What stands out is the Court’s denunciation of Swiss doctrine on the nullity of police orders on the ground that the focus on procedural defects allowed the courts to decide on the lawfulness of the order without having to address the question of racist motive. Along the same line, the ECtHR holds that the Swiss federal court acted too formalistic in deciding that the applicant’s claim of racial discrimination could not be based on the facts as they were established in first instance. This shows that the Court is prepared to actively scrutinise national legal systems to uncover racial discrimination residing in formal arguments.

The burden of proof and evidence of structural discrimination

Unlike the earlier judgments, the ECtHR in Wa Baile establishes a presumption of discrimination and shifts the burden of proof to the Swiss government to show that the applicant had not been subject to racial profiling. While this move echoes the critical responses to the majority opinions in Basu and Muhammad, a closer look at the judgment begs the question of what exactly tipped the balance in favour of the applicant. Three different elements can be distinguished in the Court’s argumentation to support the finding of prima facie discrimination: 1) the fact that Switzerland, as corroborated by international and regional human rights bodies (the CERD Committee and ECRI), had failed to put in place a legal and policy framework providing effective safeguards against racial profiling, notably by ensuring adequate police training; 2) the fact that the national administrative court found that the decision to stop the applicant was without objective reasons. Here, the Court distinguishes the case from Basu, where the unlawfulness of the identity check had not been established. According to the ECtHR, the absence of a valid motive gives rise to a strong presumption of discrimination; 3) the prevalence of racial profiling by police in Switzerland, as confirmed by reports of international human rights bodies and some of the Third Party Interveners, notably Amnesty International.

The first and third elements, in particular, indicate a recognition of racial profiling as a form of structural discrimination, and their inclusion stands out positively compared to the judgment in Muhammad, where such evidence was found irrelevant to the case. Nevertheless, the presumption of discrimination in Wa Baile seems to hinge on the second element: the absence of a valid motive for the identity check as established by the Swiss administrative court. Although the ECtHR reproached the national courts for not looking further into the allegation of racial profiling, it remains unsure whether it would have itself established that the applicant’s behaviour at Zürich station – the turning away of his head in view of the police – did not constitute an objective reason for the identity check. In this sense, it is too soon to conclude that Judge Pavli’s reproach of “procedural minimalism” in the case of Basu has been entirely vindicated. Still, the judgment in Wa Baile presents a much needed, if careful, step forward in the battle against racial profiling in Europe.