THIRD SECTION
CASE OF WA BAILE v. SWITZERLAND
(Applications nos. 43868/18 and 25883/21)
 
 
JUDGMENT
Art 14 (+ Art 8) • Domestic courts’ failure to ascertain whether discriminatory motives were behind identity check of dark-skinned man alleging racial profiling in railway station • Art 14 (+ Art 8) applicable • Threshold of severity to fall within ambit of right to respect for private life attained • Arguable claim of discrimination on ground of skin colour • Inability of Government to rebut presumption of discriminatory treatment during identity check, including search • Presumption strengthened by international reports showing racial profiling by police, corroborated by third-party interveners
Art 13 + (Art 14 + 8) • No effective remedy
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
20 February 2024
FINAL
 
20/05/2024
This judgment became final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Wa Baile v. Switzerland,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Pere Pastor Vilanova, President,
 Jolien Schukking,
 Georgios A. Serghides,
 Darian Pavli,
 Peeter Roosma,
 Ioannis Ktistakis,
 Andreas Zünd, judges,
and Milan Blaško, Section Registrar,
Having regard to:
the applications (nos. 43868/18 and 25883/21) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Swiss national, Mr Mohamed Shee Wa Baile (“the applicant”), on 10 September 2018 and 7 May 2021 respectively;
the decision to give notice to the Swiss Government (“the Government”) of the complaint concerning Article 14 of the Convention, read in conjunction with Articles 6 and 8, and the complaint concerning Article 13 of the Convention, and to declare inadmissible the remainder of the applications;
the observations submitted by the respondent Government and the observations in reply submitted by the applicant;
the comments submitted by Amnesty International, the Open Society Justice Initiative and the French Défenseure des droits (Defender of Rights), who were granted leave to intervene in the written procedure by the President of the Section;
the Section President’s decisions to treat some of the documents in the case files as confidential under Rule 33 of the Rules of Court;
Having deliberated in private on 14 November 2023 and 16 January 2024,
Delivers the following judgment, which was adopted on the last-mentioned date:
INTRODUCTION
1. In the present case, the applicant alleged that the identity check to which he was subjected in Zürich railway station had been based on racial profiling. This check, following which he was fined for having refused to submit to it, gave rise to two applications – one concerning the criminal proceedings and the other the administrative proceedings brought by the applicant in the domestic courts – in which he claimed to have been the victim of discrimination on the ground of his skin colour and explained, in particular, that the question whether he had been the subject of racial profiling had not been decided by the competent authorities. The case raised issues under Article 14 of the Convention in conjunction with Article 8 and under Article 13 of the Convention. THE FACTS
2. The applicant is a Swiss national who was born in 1974 and lives in Bern. He was represented by Ms M. Zihlmann, a lawyer practising in Zürich. 3. The Government were represented by their Agent, Mr A. Chablais, of the Federal Office of Justice. I. THE IDENTITY CHECK
4. On the morning of 5 February 2015 the applicant was on his way to work at the Zürich Polytechnical Institute when he was stopped for an identity check in Zürich railway station by three municipal police officers at around 7 a.m. As he refused to comply with their orders, the officers took him aside and asked him to raise his hands in the air and spread his legs. They went on to search his pockets and his backpack until they found a document that established his identity. Once his identity had been confirmed, the applicant was allowed to leave. 5. In his report of 26 February 2015 the officer in charge of the identity check (hereinafter A.) stated, in particular, as follows:
“While on patrol ... , my attention was drawn by a dark-skinned, male individual (subsequently identified as being Mr Wa Baile) who seemed suspicious to me. This was because of the individual’s conduct (Mr Wa Baile averted his gaze when he realised that I was a police officer, and sought to avoid me). There being cause to suspect a breach of the Federal Aliens Act [Law of 16 December 2005, known as the ‘Aliens and Integration Act’ (loi sur les étrangers et l’intégration – ‘LEI’) since 1 January 2019 and published in the Recueil systématique (‘RS’ – Compendium of Federal Law) under number 142.20], I decided to subject Mr Wa Baile to an identity check. When I spoke to him to inform him of the check, he appeared nervous, saying only ‘I don’t have an identity document’. This strengthened my suspicion that I was dealing with a breach of the LEI.”
6. The statement of the facts, as recorded in the report, reads as follows:
“During an identity check, Mr Wa Baile refused to provide proof of his identity by means of an identity document. Furthermore, he repeatedly ignored the police officers’ orders (that he was to cooperate and state his name). During the check, Mr Wa Baile called us racist and characterised the check we were performing as vexatious.”
7. According to the same report, during the identity check, the applicant had in substance made the following remarks:
“I’ve got rights, too. What you are doing here is inappropriate; it’s racism. My identity is checked everywhere I go. I don’t care what you say. I don’t have an identity document and I won’t say who I am, either. Go ahead and write up a report. I’m not going to pay any fine. I’d rather go to prison.”
8. The applicant, for his part, presented the facts as follows. As the three police officers had approached him, he had glanced at them before averting his gaze and moving on. By that time, the officers had already accosted him. He pointed out that no one else in the crowd of people on the way to work – who he claimed were almost all white – had been subjected to an identity check. Lastly, he claimed not to have received an answer as to why he had been stopped. II. THE CRIMINAL PROCEEDINGS (APPLICATION No. 43868/18)
9. By a summary penalty order of 16 March 2015 the applicant was fined 100 Swiss francs (CHF) pursuant to Articles 4 and 26 of the General Ordinance on the Zürich Municipal Police (see paragraph 36 below) for refusal to comply with police orders and a lump sum of CHF 150 for procedural costs. 10. The applicant appealed against the order on 23 March 2015. After gaining access to the case file, he supplemented his claim with a memorial dated 20 April 2015. 11. On 30 November 2015 the Zürich Minor Offences Office (Stadtrichteramt) interviewed the applicant and A. 12. In a memorial dated 2 February 2016 the applicant requested additional evidence-gathering measures. He asked that the pedagogical material on checks on persons that was used in police training be added to the file, together with any internal instruction or document on this subject and the relevant statistical data. In a decision of 30 March 2016 the Minor Offences Office rejected this request in so far as it pertained to the communication of statistical data, explaining that the present case had to be examined on the basis of the particular circumstances and that the communication of such data would provide no further information that was relevant in that regard. As to the other points, the Minor Offences Office had asked the head of the legal department of the Zürich Municipal Police to provide any documents in her possession that might satisfy the applicant’s request. That person had accordingly forwarded to the Minor Offences Office, which had added it to the file, an excerpt from Municipal Police Regulation no. 6105 of 5 January 2009 on checks on persons. There being no further relevant documents, the Minor Offences Office considered that it had sufficiently responded to the applicant’s request. 13. On 30 March 2016 the Minor Offences Office forwarded the file to the Zürich District Court (“the District Court”). 14. In a judgment of 7 November 2016 the applicant was convicted, under Article 26 of the General Ordinance on the Zürich Municipal Police in conjunction with Article 4, of refusing to comply with a police order and was sentenced to pay a fine of CHF 100. The District Court found that the versions of the facts given by the applicant and by A. were both credible. It pointed out that, under domestic law, declaring a police order to be unlawful – unlike declaring it to be null and void – did not entail that the person to whom it had been addressed had not been obliged to comply. It noted that A. had submitted that he had carried out the check because the applicant had seemed suspicious to him for having averted his gaze and attempted to avoid him. Allowing that one might question whether such grounds were sufficient, the District Court nonetheless found that it was appropriate to take into account, in A.’s favour, that he had not had much time to decide whether a check was necessary. Moreover, the District Court observed, it could not be denied that the officer had noticed something which, in that moment, had appeared to justify the check. It found that there was nothing to suggest that the applicant’s skin colour had been a decisive factor in the officer’s decision to perform an identity check. It added that even if, in retrospect, the conclusion were to be reached that the conditions for a check had not been met, the order in question could not be regarded as having been null and void. It followed, according to the District Court, that even if it were shown that A. had overstepped his margin of appreciation and therefore that the identity check had been unlawful, the applicant would still have been obliged to submit to it. The District Court explained that such a line of reasoning, as troubling as it might seem, was both necessary for the proper functioning of State institutions and acceptable having regard to the possibility afforded to those who had been subjected to a check they wished to challenge to have its unlawfulness established ex post facto by the administrative courts. 15. On 12 December 2016 the applicant challenged that judgment before the Zürich Cantonal Court (“the Cantonal Court”), alleging, in particular, that the identity check had been based on racial profiling. 16. In its judgment of 25 August 2017 the Cantonal Court upheld the applicant’s conviction. It pointed out that, to be declared null and void, an order by a police officer had to be grossly and manifestly irregular, or at least easily recognisable as such. It explained that this condition would have been met, in particular, if there had been evidence in the case file of improper conduct or inappropriate remarks on the part of the police officer. The Cantonal Court noted, however, that the applicant had never made any allegations to that effect and that the available evidence, in particular the statements given by A. and by the applicant, gave no indication that the identity check had been performed on manifestly discriminatory grounds. The Cantonal Court attached decisive importance to the fact that the District Court had found credible A.’s submissions to the effect that the identity check had been prompted by the applicant’s conduct rather than his skin colour. It further explained that, while it was certainly true that the conduct in question had provided only a tenuous basis for the assumption that the applicant was in breach of the law and for the resulting decision to subject him to an identity check, the applicant’s submission that he had been the only one that morning subjected to an identity check on the basis of such weak grounds was a mere supposition which nothing in the file substantiated. Thus, the Cantonal Court observed, A. had pointed out that a number of other individuals had been subjected to an identity check on the same day. The Cantonal Court added that regard should be had to the context. It pointed out that the identity check had taken place in Zürich railway station, a very busy place where one could expect intensified criminal activity and, accordingly, a police presence and checks, especially in connection with suspected breaches of the LEI, given that border controls in the Schengen Area were limited. It explained that such breaches were not visible on the basis of clearly perceptible signs and that it was therefore appropriate that police checks in this regard should not be subject to unduly stringent justification requirements. In the Cantonal Court’s view, it could not be inferred from the tenuousness of the signs on the basis of which the decision to perform the check had been taken that this decision had been manifestly unlawful. Nor was there anything in the manner in which the check had been conducted to suggest that it had been vexatious or discriminatory in nature. 17. On 10 October 2017 the applicant lodged an appeal against this judgment with the Federal Supreme Court. 18. In a judgment of 7 March 2018, notified on 15 March 2018, the Federal Supreme Court declared the appeal partly admissible but dismissed it. It found, in particular, that the Cantonal Court’s assessment was not arbitrary. As to the applicant’s complaint that the identity check had been based on racial profiling and had therefore been discriminatory, the Federal Supreme Court took the view that this complaint rested on a different account of the facts from the one which the first-instance court had found to be credible. Explaining that it was bound by the facts as established by the lower court, the Federal Supreme Court declared the complaint inadmissible. III. THE ADMINISTRATIVE PROCEEDINGS (APPLICATION No. 25883/21)
19. On 22 March 2016 the applicant sought to have the identity check of 5 February 2015 declared unlawful by the Zürich Municipal Police. He claimed to have been the victim of infringements of his rights to freedom of movement, respect for his private life and informational self-determination, and of a violation of the prohibition of discrimination. 20. In a decision of 20 July 2016 the Municipal Police adjourned the proceedings pending the outcome of the ongoing criminal proceedings. On 30 March 2017 the applicant sought to have the suspension lifted. 21. On 26 April 2017 the Municipal Police rejected the request on the grounds that the applicant had raised his complaint as to the unlawfulness of the impugned identity check in the context of the criminal proceedings and a final determination had yet to be made in that regard. 22. The administrative proceedings resumed once the Federal Supreme Court’s judgment of 7 March 2018 had put an end to the criminal proceedings (see paragraph 18 above). 23. In a decision of 20 December 2018 the Municipal Police dismissed the applicant’s request. They claimed to be bound by the criminal-law authorities’ findings as to the establishment of the facts and further explained, referring to the Court’s relevant case-law, why the reversal of the burden of proof relied on by the applicant was not applicable in the case at hand. 24. On 25 January 2019 the applicant appealed against this decision to the Zürich Municipal Council (Stadtrat). He again pleaded that the police check of 5 February 2015 had been unlawful and that there had been an infringement of the same rights as he had asserted before the Municipal Police. 25. On 10 April 2019 the Municipal Council rejected the appeal. They explained, as the Municipal Police had done, that the administrative authorities were in principle bound by the facts as established by the criminal courts and went on to examine the applicant’s complaints, taking account of the Court’s relevant practice. 26. On 27 May 2019 the applicant appealed against this decision to the Zürich District Office (Statthalteramt). Putting forward the same arguments, he reiterated in substance the claims he had made before the lower bodies. On 20 November 2019 the District Office dismissed the appeal. 27. On 13 January 2020 the applicant challenged this decision before the Administrative Court of the Canton of Zürich (“the Administrative Court”). He once again requested that the impugned police check be declared unlawful. In this connection, he reiterated his previous allegations of rights violations, further complaining of an infringement of his personality rights. 28. In a judgment of 1 October 2020 the Administrative Court declared the appeal admissible, set aside the lower bodies’ decisions and held that the check of 5 February 2015 had been unlawful. The Administrative Court first examined the applicant’s arguments with regard to the gathering of evidence and declared, in particular, that it could validly rely on the evidence that had been produced before the criminal courts. It found that a fresh interview with the police officer who had performed the impugned check would be unlikely to provide additional clarification and that alternative evidence, such as that sought by the applicant, would be of no use to it in dealing with the issues raised by the case. It went on to lay out the relevant legal framework, devoting several pages, in particular, to a detailed presentation of the applicable principles regarding identity checks. The Administrative Court also examined the various issues raised by the case. It noted, in particular, that, in view of the conflicting statements given by the applicant and the police officer involved, the precise moment at which the applicant had averted his gaze could not be determined. As to the question whether the identity check could be regarded as having been justified – assuming, as the police officer had submitted, that it had been prompted by the act of looking away – the Administrative Court held that, notwithstanding the particular context of Zürich railway station, the answer was “no”. Since the identity check had thus been unlawful in any event, the Administrative Court took the view that the question as to discrimination on the ground of skin colour remained open (point 5.7.3). 29. On 14 December 2020 the applicant lodged an appeal against this judgment with the Federal Supreme Court. On the merits, he asked the Federal Supreme Court, first, to set aside the lower court’s judgment in so far as that court had not examined the question whether the check of 5 February 2015 had been unlawful, in particular by reason of a violation of Article 14 of the Convention in conjunction with Article 8, and, second, to hold that the check in question had entailed, in particular, a violation of his rights under Article 14 of the Convention in conjunction with Article 8. In the alternative, he requested that the case be sent back to the lower court with a view to establishing the relevant facts and examining the violations of fundamental rights he alleged. 30. In a judgment of 23 December 2020 the Federal Supreme Court, sitting as a single judge, declared the appeal inadmissible. Pointing out that, under section 89(1)(c) of the Federal Supreme Court Act of 17 June 2005 (see paragraph 32 below), a person had standing to lodge a public-law appeal only if that person had a legitimate interest in having the decision appealed against quashed or varied, it found that this condition was not met in the case at hand. It explained that the applicant had obtained full satisfaction before the Administrative Court and was therefore seeking neither the quashing nor the amendment of the impugned decision, but merely additional reasoning. However, the Federal Supreme Court pointed out, there was no right to that effect.
relevant legal framework and practice
I. DOMESTIC LAW
31. The relevant provisions of the Federal Constitution of the Swiss Confederation (“the Constitution”), adopted on 18 April 1999 (RS 101), read as follows:
Article 7 – Human dignity
“Human dignity must be respected and protected.”
Article 8 – Equality before the law
“Every person is equal before the law. No person may be discriminated against, in particular on grounds of origin, race, gender, age, language, social position, way of life, religious, ideological or political convictions, or because of a physical, mental or psychological disability.
...”
32. The Federal Supreme Court Act of 17 June 2005 (RS 173.110) provides as follows:
Section 89 – Locus standi
“Locus standi to appeal in matters of public law shall be had by anyone who
a.  has taken part in the proceedings before the lower authority or has been deprived of the opportunity to do so;
b.  has been particularly affected by the decision or legal act appealed against; and
c.  has a legitimate interest in having it quashed or varied.
...”
Section 99 – [New grounds of appeal]
“... 2. Any new pleadings shall be inadmissible.”
33. Article 286 of the Swiss Criminal Code of 21 December 1937 reads as follows:
Article 286 – Obstruction of an official act
“Anyone who has impeded an authority, a member of an authority, or a civil servant in the accomplishment of an act forming part of his or her duties shall be punished by a day-fine for a period of up to 30 days.
...”
34. Article 215 of the Code of Criminal Procedure of 5 October 2007 provides as follows:
Article 215 – Police power to stop
“In order to clarify a breach of the law, the police may stop an individual and, if necessary, take him or her to the station, for the following purposes:
a.  to establish the person’s identity;
b.  to question the person briefly;
c.  to determine whether the person has committed an offence;
d.  to determine whether enquiries should be undertaken in respect of that person or of objects found in his or her possession. The police may compel the apprehended person
a.  to disclose his or her identity;
b.  to produce his or her identity papers;
c.  to display the objects he or she is carrying;
d.  to open his or her luggage or vehicle. The police may request private citizens to assist them in apprehending an individual. Where there are strong indications that offences are being committed or that wanted persons are to be found in a particular place, the police may block the exits and, if appropriate, apprehend those present.”
35. The Canton of Zürich Police Act (published in the Compendium of Canton of Zürich Law under number 550.1) provides as follows:
Article 3 – Police duties
“The police shall contribute to maintaining public safety and order by informing, advising, maintaining a visible presence and taking other appropriate measures. In particular, they shall take measures to
a. prevent the commission of criminal acts;
...
c. avert imminent threats to persons, animals, the environment, or property and put an end to the corresponding disruptions. If they find that offences have been committed, they shall conduct an investigation pursuant to Articles 306 et seq. of the Code of Criminal Procedure.”
Article 21 – Judicial identification measures
“Where the performance of their duties so requires, the police may stop and question an individual, determine his or her identity and establish whether that individual is wanted, or whether his or her vehicle, other property or animals found in his or her company are. The person stopped shall be required to provide information on his or her identity, present the identity and residence documents he or she is carrying and, to that end, open containers and vehicles.
...”
36. The relevant provisions of the General Ordinance on the Zürich Municipal Police (published in the Compendium of Zürich Municipal By-laws under number 551.110) read as follows:
Article 4 – Conduct towards the police
“Police orders must be followed.”
Article 26 – Criminal provisions
“Breaches of the provisions of the present Ordinance or of municipal by-laws based hereon shall be punishable by a fine. In the event of a minor offence, a reprimand may be issued in lieu of a fine.”
II. DOMESTIC PRACTICE
A. Conditions for an identity check
37. As to police stops simply for the purpose of an identity check, namely, the obligation to disclose one’s identity to a police officer and, if necessary, to show him or her a document establishing it, the Federal Supreme Court held, in a judgment of 6 July 1983 (ATF [Judgments of the Federal Supreme Court] 109 1a 146, point 4.b), that even if such a measure did not in itself amount to a very significant interference with personal freedom, it nevertheless constituted a direct intervention in the private sphere of individuals. It pointed out that this practice was therefore subject, in the same way as other control measures the police might impose, to the constitutional principles of public interest and proportionality. It followed that the police were not empowered to stop just any individual walking on the public highway or present in a public establishment, for no reason and in any circumstances whatsoever. It can thus be seen from the judgment that a verbal order to stop, together with a request for personal information or justifying documents, should not be vexatious or guided by a gratuitous sense of curiosity. In the Federal Supreme Court’s view, it would be unacceptable, for example, for certain law-abiding citizens to be systematically and regularly subjected to police checks under spurious or purely subjective pretexts. On the contrary, a police stop must be based on minimum objective grounds, such as the need to clarify a given situation, the presence of the person concerned in the vicinity of a place where an offence has just been committed, his or her resemblance to a wanted person, or his or her inclusion in a group of individuals one or more of whom can be suspected, on the basis of indications, however slight, of being in an illegal situation requiring police intervention. Reiterating that it was not required, in a case concerning the abstract review of a statute, to consider every particular case that could arise, the Federal Supreme Court merely pointed out that, although it was true that a citizen was required to comply with an order to stop the reasons for which were not immediately clear to him or her, this did not mean that he or she was then at the mercy of the authorities’ whims or discretionary power. The principle of proportionality required police officers to show consideration and courtesy towards those they stopped, to cause them as little unease as possible vis-à-vis the surrounding people, not to ask them unnecessary, intrusive questions and not to subject them to harassment. The Federal Supreme Court further clarified that under no circumstances should such measures go beyond what was strictly necessary to verify identity and that verbal affirmations, the truth of which could easily be confirmed on the spot, were sufficient when one had neglected to carry a justifying document. 38. In a judgment of 30 September 2009 (ATF 136 I 87, point 5.2), the Federal Supreme Court, having been called upon to carry out an abstract review of several provisions of the Canton of Zürich Police Act, held that not every identity check was permitted under section 21(1) of that Act (see paragraph 35 above). Pointing out that the text of the provision itself stated that such a measure had to be necessary, the court held that, where such necessity was lacking, this immediately ruled out that an identity check could be regarded as lawful and consistent with the principle of proportionality. The concept of necessity, it clarified, entailed that specific circumstances had to obtain for the police to be justified in performing identity checks and that such checks could not be conducted without cause. It can be seen from the judgment that a check might be necessary, in particular, when the police’s attention was drawn by some particularity of a person, place or circumstance requiring an intervention. The Federal Supreme Court thus explained that an identity check had to be prompted or justified by objective reasons, particular circumstances, or specific grounds for suspicion, such as, for example, the need to clarify a given situation, a person’s presence in the vicinity of a place where an offence had been committed, an individual’s resemblance to a wanted person, grounds for suspicion in connection with an offence and other similar circumstances. In the Federal Supreme Court’s view, these were the elements entailed by the abstract condition that an identity check should be necessary for the discharge of police duties, while, conversely, the same condition precluded identity checks performed on the basis of mere pretexts, out of personal curiosity or on other spurious grounds. Lastly, the Federal Supreme Court held that, given the multiplicity of possible situations, a more detailed formulation, such as a list of examples, would be of little use and would not lead to greater precision, the crucial point being that police action should not go beyond what was necessary. Moreover, the court pointed out in this connection that the police were bound to show moderation and respect. 39. In a case examined in the light of criminal procedure, the Federal Supreme Court found that the conditions for an identity check had been met in respect of a person who had been found in a place where drug-related offences regularly occurred, whom the police officers claimed to have “recognised” as a drug trafficker and who had turned out to be carrying cocaine (judgment 6B_1070/2018 of 14 August 2019, points 1.4 et seq.). B. Obligation to comply with police orders
40. In its examination of cases concerning offences against public authority such as, in particular, violence or threats against the authorities and civil servants (Article 285 of the Criminal Code) or obstruction of an official act (Article 286 of the Criminal Code; see paragraph 33 above), the Federal Supreme Court has had occasion to hold that the only instance in which there was no obligation to comply with a police order was where the order in question was null and void. It pointed out in this connection that, in accordance with the public-law doctrine of “evidence” (Evidenztheorie), an order was null and void in the event of a serious, manifest, or at least easily identifiable irregularity, provided that such a finding did not seriously jeopardise legal certainty. According to the Federal Supreme Court, while an order could be declared null and void on account of particularly serious procedural or formal irregularities, having regard to the circumstances of the case in question, it was only very rarely that irregularities in its content entailed that it was null and void (judgments 6B_113/2007, point 2.5; 6B_393/2008, point 2.1; ATF 103 IV 73, point 6.b; and ATF 98 IV 41, point 4.b). C. Prohibition of discrimination
41. In keeping with the practice of the Federal Supreme Court, discrimination, within the meaning of Article 8 § 2 of the Constitution (see paragraph 31 above), means treating a person differently because they belong to a particular group which, historically or in present-day social reality, is or has been excluded or denigrated. It can be seen from the case-law of the Federal Supreme Court that discrimination consists in unequal treatment suffered by a person placed in a relevantly similar situation to that of another, aggravated by the fact that he or she is disadvantaged in a manner which, because it relates to a characteristic forming an essential part of that person’s identity which he or she cannot or cannot easily renounce, must be regarded as debasing or excluding him or her. The Federal Supreme Court has thus held that the prohibition of discrimination also concerns aspects of human dignity protected by Article 7 of the Constitution (ibid.). Furthermore, it has held that a regulation may have direct or indirect discriminatory effects, the latter corresponding to cases where the regulation, although it does not provide for differences in treatment to the detriment of specially protected groups, nevertheless places members of such a group at a particular disadvantage for no objective reason through the practical effects that it entails. Lastly, the Federal Supreme Court has pointed out that the prohibition of discrimination does not absolutely rule out the use of a prohibited criterion, since such a circumstance initially gives rise only to a presumption of unlawful discrimination, which can potentially be rebutted on special grounds (ATF 139 I 292, points 8.2.1 et seq., with further references). III. RELEVANT INTERNATIONAL LAW AND PRACTICE
A. The International Convention on the Elimination of All Forms of Racial Discrimination
42. Article 5 of the United Nations (UN) International Convention on the Elimination of All Forms of Racial Discrimination, which was adopted on 7 March 1966 and ratified by Switzerland on 29 November 1994, provides as follows:
“In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
(a)  The right to equal treatment before the tribunals and all other organs administering justice;
... (d)  other civil rights, in particular:
(i)  The right to freedom of movement and residence within the border of the State;
...”
43. In its General recommendation No. 36 of 17 December 2020 on preventing and combating racial profiling by law enforcement officials (CERD/C/GC/36), the UN Committee on the Elimination of Racial Discrimination (CERD) noted, in particular, that there was no universal definition of racial profiling in international human rights law (§ 13). For the purposes of that recommendation, the concept was defined as the practice of police and other law enforcement relying, to any degree, on race, colour, descent or national or ethnic origin as the basis for subjecting persons to investigatory activities or for determining whether an individual was engaged in criminal activity (§ 18). According to the Committee, racial profiling was linked to stereotypes and biases, which could be conscious or unconscious, and individual or institutional and structural. Stereotyping became a violation of international human rights law when stereotypical assumptions were put into practice to undermine the enjoyment of human rights (§ 20). 44. The Committee also declared that the practice of racial profiling violated the fundamental principles of human rights (§ 21). It clarified that States Parties were obliged to actively take steps to eliminate discrimination through their laws, policies and institutions (§ 23) and that they were also to ensure that their domestic legal order contained adequate and effective mechanisms through which to assert that racial profiling had taken place and to bring such a practice to an end (§ 24). Lastly, it stated that it was of paramount importance that national law enforcement officials were properly informed of their obligations and were sufficiently aware of how to avoid engaging in practices of racial profiling (§ 25). 45. Concerning Switzerland, the CERD stated as follows in its Concluding observations on the combined tenth to twelfth periodic reports of Switzerland (CERD/C/CHE/CO/10-12, 27 December 2021):
Racial profiling
“19. The Committee reiterates its concern regarding the persistence of racial profiling by the police and the lack of a law explicitly prohibiting that practice. It is also concerned by reports that the State party is not collecting sufficient statistics on racial profiling. While taking note of the information provided by the State party on the inclusion of some aspects of racial discrimination in police training, the Committee is nevertheless concerned at reports that this training is insufficient to effectively prevent racism and racial profiling by police officers (arts. 2, 4 and 5). 20. Recalling its general recommendation No. 36 (2020), the Committee urges the State party to redouble its efforts to effectively counter the use of any and all practices by law enforcement officers that are based on racial profiling and to put an end to such practices by, in particular:
(a)  Incorporating an explicit prohibition of racial profiling into its legislation, taking into account general recommendation No. 36, and adopting operational measures for that purpose, such as the introduction of forms on which the reasons for an identity check or any other police operation must be stated and the provision of information to victims on the available remedies;
(b)  Formulating an action plan to combat racial profiling in consultation with the population groups most at risk of becoming victims of that practice with a view to preventing and countering it effectively by means of a range of measures that include the following:
(i)  Strengthening of initial and ongoing training for police officers and members of other law enforcement agencies on the issues of racism and racial profiling;
(ii)  Follow-up at the cantonal and federal levels of operational measures implemented to combat racial profiling and of regular audits conducted with the help of independent experts to address gaps in policies and organizational practices;
(iii)  The introduction of an independent system for processing complaints related to racial profiling;
(iv)  The compilation of disaggregated data on racial profiling, the regular publication of those data and their inclusion in the next periodic report.”
B. The International Covenant on Civil and Political Rights and the UN Human Rights Committee
46. The International Covenant on Civil and Political Rights, which was adopted on 16 December 1966 and ratified by Switzerland on 18 June 1992, provides as follows:
Article 2
“1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant. 3. Each State Party to the present Covenant undertakes:
(a)  To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
b)  To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c)  To ensure that the competent authorities shall enforce such remedies when granted.”
Article 17
“1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.”
Article 26
“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
47. In its views of 27 July 2009 on Communication No. 1493/2006 against Spain, submitted by Rosalind Williams Lecraft (UN Doc. CCPR/C/96/D/1493/2006), the UN Human Rights Committee examined a case of discrimination that was alleged to have arisen on the occasion of an identity check and found that there had been a violation of Article 26 of the International Covenant on Civil and Political Rights, read in conjunction with Article 2 § 3. The Human Rights Committee found as follows:
“2.1  The author, who is originally from the United States of America, acquired Spanish nationality in 1969. On 6 December 1992, she arrived at Valladolid railway station from Madrid with her husband and son. Shortly after she got off the train an officer from the National Police approached her and asked to see her National Identity Card. The police officer did not ask anyone else who was on the platform at that time, including her husband and son, for their identity cards. The author asked the police officer to explain the reasons for the identity check; the officer replied that he was obliged to check the identity of people like her, since many of them were illegal immigrants. He added that the National Police were under orders from the Ministry of the Interior to carry out identity checks of “coloured people” in particular. ...
...
7.2  The Committee must decide whether being subjected to an identity check by the police means that the author suffered racial discrimination. The Committee considers that identity checks carried out for public security or crime prevention purposes in general, or to control illegal immigration, serve a legitimate purpose. However, when the authorities carry out such checks, the physical or ethnic characteristics of the persons subjected thereto should not by themselves be deemed indicative of their possible illegal presence in the country. Nor should they be carried out in such a way as to target only persons with specific physical or ethnic characteristics. To act otherwise would not only negatively affect the dignity of the persons concerned, but would also contribute to the spread of xenophobic attitudes in the public at large and would run counter to an effective policy aimed at combating racial discrimination.
...
7.4  In the present case, it can be inferred from the file that the identity check in question was of a general nature. The author alleges that no one else in her immediate vicinity had their identity checked and that the police officer who stopped and questioned her referred to her physical features in order to explain why she, and no one else in the vicinity, was being asked to show her identity papers. These claims were not refuted by the administrative and judicial bodies before which the author submitted her case, or in the proceedings before the Committee. In the circumstances, the Committee can only conclude that the author was singled out for the identity check in question solely on the ground of her racial characteristics and that these characteristics were the decisive factor in her being suspected of unlawful conduct. Furthermore, the Committee recalls its jurisprudence that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant. In the case under consideration, the Committee is of the view that the criteria of reasonableness and objectivity were not met. ...”
48. With regard to Switzerland, the UN Human Rights Committee noted the following on the subject of statistical data in its Concluding observations on the fourth periodic report of Switzerland (CCPR/C/CHE/CO/4Add.1, 9 August 2018):
V. Recommendation 29 (c): statistics
“31. There has been no development on the issue of a national police abuse database since the submission of the fourth periodic report of Switzerland (see the periodic report of Switzerland of 7 July 2016, para. 112). 32. The handling of complaints against police officers is regulated at the cantonal level and there is therefore no national database or corresponding register. Most cantons keep internal statistics of all complaints received.
...”
C. The UN Committee against Torture
49. In its Concluding observations concerning the seventh periodic report of Switzerland, the UN Committee against Torture noted as follows (CAT/C/CHE/CO/7, 7 September 2015):
Police violence
“10. The Committee is concerned at information received to the effect that alleged cases of excessive use of force and of racist behaviour by the police and immigration services are not systematically reported to the authorities, even where there is medical evidence of injury. It also notes with concern the reports indicating the lack of prompt and effective investigations, as noted by the European Court of Human Rights in the case of Dembele v. Switzerland (2013). In this regard, the Committee finds it regrettable that the State party has not yet established an independent body to investigate individual cases, despite the Committee’s repeated recommendation in its previous concluding observations (see CAT/C/CR/34/CHE, para. 4 (g), and CAT/C/CHE/CO/6, para. 9). The Committee also finds it regrettable that the State party has not provided adequate statistical data at the national level concerning allegations of violence and ill-treatment by law enforcement officers. With regard to the data relating to the cantons of Geneva, Vaud and Zurich, it notes with concern that a large number of cases were discontinued and that, in the few cases that resulted in penalties being applied, these were only disciplinary sanctions (arts. 2, 12, 13 and 16).”
D. The European Commission against Racism and Intolerance
50. In General Policy Recommendation No. 11 on combatting racism and racial discrimination in policing (CRI(2007)39), which as adopted on 29 June 2007 by the Council of Europe’s European Commission against Racism and Intolerance (ECRI), racial profiling is defined as follows:
“1.  ... For the purposes of this Recommendation, racial profiling shall mean:
‘The use by the police, with no objective and reasonable justification, of grounds such as race, colour, language, religion, nationality or national or ethnic origin in control, surveillance or investigation activities’;
...”
51. The ECRI recommended to the governments of member States, inter alia:
“9. To ensure effective investigations into alleged cases of racial discrimination or racially-motivated misconduct by the police and ensure as necessary that the perpetrators of these acts are adequately punished;
10. To provide for a body, independent of the police and prosecution authorities, entrusted with the investigation of alleged cases of racial discrimination and racially-motivated misconduct by the police;
...”
52. With regard to paragraph 1, the Explanatory Memorandum to the Recommendation also states, inter alia, as follows:
“34. iii) ... Research has shown that racial profiling has considerably negative effects. Racial profiling generates a feeling of humiliation and injustice among certain groups of persons and results in their stigmatisation and alienation as well as in the deterioration of relations between these groups and the police, due to loss of trust in the latter. ...”
53. Paragraph 11 of ECRI General Policy Recommendation No. 7 on national legislation to combat racism and racial discrimination, adopted on 13 December 2002 and amended on 7 December 2017 (CRI(2003)8 Rev.), reads as follows in the revised version:
“The law should provide that, if persons who consider themselves wronged because of a discriminatory act establish before a court or any other competent authority facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no discrimination.”
54. In its Report on Switzerland (sixth monitoring cycle) adopted on 10 December 2019 and published on 19 March 2020, the ECRI voiced criticism of the authorities of that State and made the following recommendations (references omitted):
Police abuses
“110. ECRI notes numerous reports drawing attention to allegations of police abuses, including racial profiling and brutality. Representatives of the Yenish and Sinti/Manouche communities have all raised concerns about a possible profiling of persons with itinerant ways of life and repeated identity checks. A 2016 poster campaign against begging run by the Lugano police stereotyped Roma exploiting women and children as part of criminal organisations. Black people are also particularly targeted for police checks which frequently involve arrest and strip searching for drugs. ECRI is particularly alarmed that a number of police activities have ended in the death of Black persons. For example, in March 2018, a Nigerian man in Lausanne died following a police arrest during which he was pinned down and handcuffed; in October 2017, a 23-year old Gambian man died in police custody in Vaud; and in November 2016, a young Congolese man was fatally shot during a police patrol in Lausanne. Criminal proceedings relating to these cases in the canton of Vaud are ongoing. According to the NGO humanrights.ch, lawsuits in cases of police violence are often long and burdensome and rarely find in favour of the complainant, resulting in a system where victims feel helpless and that police are above the law. 111. The Federal Commission against Racism, referring to Black people being victims of racial profiling, recommended training for police to combat the problem of institutional and structural racism. According to a police trainer and government advisor, around 20% of police interventions do not respond to objective criteria. Lack of training was put forward as an explanation as well as the absence of an independent body to investigate complaints against police. 112. ECRI recommends further training for the police on the issue of racial profiling and on the use of the reasonable suspicion standard. It also strongly recommends setting up a body independent of the police and prosecution authorities, entrusted with the investigation of alleged cases of racial discrimination and racially-motivated misconduct by the police, in line with its General Policy Recommendation No. 11 on combating racism and racial discrimination in policing.”
E. The Committee of Ministers of the Council of Europe
55. The European Code of Police Ethics (Rec(2001)10), adopted by the Committee of Ministers of the Council of Europe on 19 September 2010, lays down the principles by which the Committee of Ministers recommends that the governments of members States be guided in their domestic legislation, practice and codes of conduct of the police. It contains the following articles, in particular:
“... IV. Organisational structures of the police
... C. Training of Police Personnel
... 30. Police training shall take full account of the need to challenge and combat racism and xenophobia.
... V. Guidelines for police action/intervention
A. Guidelines for police action/intervention: general principles
... 40. The police shall carry out their tasks in a fair manner, guided, in particular, by the principles of impartiality and non-discrimination.
... B. Guidelines for police action/intervention: specific situations
1. Police investigation
47. Police investigations shall, as a minimum, be based upon reasonable suspicion of an actual or possible offence or crime. 48. The police must follow the principles that everyone charged with a criminal offence shall be considered innocent until found guilty by a court, and that everyone charged with a criminal offence has certain rights, in particular the right to be informed promptly of the accusation against him/her, and to prepare his/her defence either in person, or through legal assistance of his/her own choosing. 49. Police investigations shall be objective and fair. They shall be sensitive and adaptable to the special needs of persons, such as children, juveniles, women, minorities including ethnic minorities and vulnerable persons. 50. Guidelines for the proper conduct and integrity of police interviews shall be established, bearing in mind Article 48. They shall, in particular, provide for a fair interview during which those interviewed are made aware of the reasons for the interview as well as other relevant information. Systematic records of police interviews shall be kept.
...”
F. The European Union (EU)
56. Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin provides, in so far as relevant:
Recital 21
“The rules on the burden of proof must be adapted when there is a prima facie case of discrimination and, for the principle of equal treatment to be applied effectively, the burden of proof must shift back to the respondent when evidence of such discrimination is brought.”
Article 8 – Burden of proof
“1. JOINDER OF THE APPLICATIONS
57. The applicant requested the joinder of the applications. The Government did not object to this. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH ARTICLE 8
58. The applicant submitted that the identity check and search to which he had been subjected and the fine imposed on him had amounted to discrimination on the ground of his skin colour. He relied on Article 14 of the Convention in conjunction with Article 8. Those provisions read as follows:
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
59. The Government contested that argument. 60. The Court would point out that in application no. 43868/18 the applicant relied not only on Article 8 but also on Article 6 § 2 in support of his allegation of a violation of Article 14. However, in the light of recent judgments concerning racial profiling (see Basu v. Germany, no. 215/19, 18 October 2022, and Muhammad v. Spain, no. 34085/17, 18 October 2022), the Court considers it appropriate to examine the present complaint under Article 14 in conjunction solely with Article 8 of the Convention. A. Admissibility
1. Victim status
(a)   The parties’ submissions
61. The Government submitted that the applicant could no longer claim to be the victim of a violation of the Convention within the meaning of Article 34. In support of this argument, they explained that he had obtained full satisfaction in the domestic proceedings. The Government pointed out in this connection that the applicant had asked the domestic courts to rule on the lawfulness of the identity check of 5 February 2015 and that, following a detailed examination of the various aspects of the case, the Administrative Court had held that the check had been unlawful for lack of sufficient grounds to justify it. They argued that the lack of sufficient grounds was an essential component of racial profiling and that the finding of unlawfulness should therefore be regarded as an acknowledgment of the alleged violation. In the Government’s view, the Administrative Court had thus accepted the applicant’s pleadings on the merits in their entirety. As to the applicant’s subsequent appeal to the Federal Supreme Court, in which he had asked it to find, in particular, that the identity check had amounted to a violation of Article 14 of the Convention in conjunction with Article 8, the Government pointed out that any new pleadings were inadmissible in such proceedings. 62. The applicant replied that, to date, the racial discrimination of which he claimed to have been a victim had not been established by the domestic courts. He explained that there was an obligation to do so even if the impugned measure had been found to have been unlawful on other grounds. In this connection, he argued that there was a difference between an unlawful check and one that was discriminatory in that, in his view, the latter was humiliating for the person thereby singled out, could cause repeated trauma, drove the victim to limit his or her freedom of movement and caused him or her to feel less secure. He added that, throughout the criminal proceedings, the judicial authorities had continued to treat him as an accused person rather than as a victim. Furthermore, they had shifted responsibility for ruling on the question of discrimination back and forth between them until that responsibility had no longer fallen to any of them. He also complained that his victim status had been renewed by the fine imposed on him in that the courts’ finding of unlawfulness had not released him from the obligation to pay it and the judgment delivered in that connection was not subject to review. However, by justifying their upholding of the fine on the ground that the applicant would have been exempt from following the police order only if that order had been null and void, the authorities had, in his view, introduced, for the sole purpose of the proceedings in his case, a principle that was incompatible with Swiss case-law as it had previously stood. In sum, he argued that he had victim status by reason of the authorities’ continued failure to take into account the discrimination to which he had been subjected. (b)   The Court’s assessment
63. The Court reiterates that it falls first to the national authorities to redress any alleged violation of the Convention. In this regard, the question whether an applicant can claim to be the victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see, among other authorities, Siliadin v. France, no. 73316/01, § 61, ECHR 2005-VII). In addition, a decision or measure favourable to the applicant is not in principle sufficient to deprive him or her of “victim” status for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Eckle v. Germany, 15 July 1982, § 66, Series A no. 51; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI; and Siliadin, cited above, § 62). 64. The Court would point out that the Cantonal Court, in the judgment it delivered in the criminal proceedings on 25 August 2017, held that the available evidence did not indicate that the identity check had been performed for manifestly discriminatory reasons or that it had been carried out in a vexatious or discriminatory manner. It observes that the Federal Supreme Court upheld that judgment on 7 March 2018, thereby confirming the applicant’s conviction (see paragraph 18 above). It further notes that, in the administrative proceedings, the Administrative Court, in its judgment of 1 October 2020, found both that the identity check had been lawful and that the question as to discrimination on the ground of the applicant’s skin colour remained open (see paragraph 28 above). Lastly, the Court notes that this judgment was upheld in a judgment of the Federal Supreme Court delivered on 23 December 2020, which took the view that the applicant had obtained full satisfaction and therefore did not have a legitimate interest in having the decision appealed against quashed or varied (see paragraph 30 above). 65. In the light of the findings of the domestic courts, the Court does not share the Government’s view that the Administrative Court’s finding as to the unlawfulness of the applicant’s identity check has deprived him of his victim status. It finds that neither the judgment in question nor any other domestic decision has acknowledged a breach of the prohibition of discrimination within the meaning of Article 14 of the Convention in conjunction with Article 8. It follows that the alleged violation has not been remedied. 66. In view of the foregoing considerations, the applicant can claim to have been the victim of a violation of Article 14 of the Convention in conjunction with Article 8. 2. Compatibility ratione materiae with the Convention
67. The Court notes that the Government did not contest that Article 14 of the Convention, in conjunction with Article 8, was applicable to the present case. It nevertheless considers it appropriate to add the following observations. 68. As the Court has consistently held, Article 14 of the Convention only complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions (see, among many other authorities, Şahin v. Germany [GC], no. 30943/96, § 85, ECHR 2003‑VIII, and Fábián v. Hungary [GC], no. 78117/13, § 112, 5 September 2017). The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary, but it is also sufficient, for the facts of the case to fall within the ambit of one or more of the Convention Articles (see, among other authorities, Beeler v. Switzerland [GC], no. 78630/12, § 48, 11 October 2022). 69. As to the “private life” aspect of Article 8, the Court has previously had occasion to observe that this is a broad term, not susceptible to exhaustive definition, and that it can sometimes embrace aspects of an individual’s physical and social identity (see Lacatus v. Switzerland, no. 14065/15, § 54, 19 January 2021; Glor v. Switzerland, no. 13444/04, § 52, ECHR 2009; Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I; and Beizaras and Levickas v. Lithuania, no. 41288/15, § 117, 14 January 2020). 70. The “private life” concept also covers the right to personal development and to establish and develop relationships with other human beings and the outside world (see, for example, Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007‑I, and A.‑M.V. v. Finland, no. 53251/13, § 76, 23 March 2017). Respect for these rights is one of the fundamental requirements of “le vivre-ensemble” (“living together”) in a democratic society (see S.A.S. v. France [GC], no. 43835/11, §§ 141-42, ECHR 2014 (extracts)). There is thus a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 56, ECHR 2001‑IX, with further references). 71. The Court has previously held in the Muhammad (cited above, §§ 50‑51) and Basu (cited above, § 27) cases that a complaint of racial profiling based on an identity check considered to have been discriminatory can fall within the ambit of the right to respect for private life within the meaning of Article 8 of the Convention and, consequently, that Article 14 of the Convention, in conjunction with Article 8, is applicable in such cases. For it to be ascertained whether the threshold of severity has been attained in a particular case, the person concerned must have an arguable claim that he or she was targeted on the basis of specific physical or ethnic characteristics. Such an arguable claim may 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 by the police officers carrying out the check disclosed specific physical or ethnic motives (ibid., § 25). Moreover, in the cases cited above, the Court attached a certain importance to the fact that the checks in question had taken place in public, a fact that may have a negative effect on a person’s reputation and self-respect. 72. In the present case, the Court finds that the question whether the applicant’s complaint falls within the ambit of Article 8 and, consequently, whether Article 14 of the Convention, in conjunction with Article 8, is applicable, is intrinsically linked to the merits of the case. Accordingly, it joins the question of compatibility ratione materiae to the merits of the complaint regarding the obligation to examine whether discriminatory grounds may have played a part in the identity check to which the applicant was subjected. 3. Conclusion as to admissibility
73. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. B. Merits
1. Procedural aspect: alleged violation of the obligation to examine whether discriminatory grounds may have played a part in the impugned identity check
(a)   The parties’ submissions
(i)      The applicant
74. The applicant submitted that Articles 13 and 14 of the Convention imposed on the national courts the obligation to establish the facts with regard to the identity check of their own motion so as to assess whether there had been any discrimination. He argued that the domestic courts ought to have examined the following questions: whether skin colour had been mentioned as a ground for the identity check; whether the ground relied on to justify the check was plausible; how the person concerned had conducted himself or herself prior to the check and – in order to determine whether that person had been treated differently from others – whether other individuals had conducted themselves in the same manner at that time; lastly, whether any of the established facts suggested that the impugned check was tied or could probably have been tied to a protected characteristic. 75. The applicant further submitted that, in accordance with the Court’s case-law as established, in particular, in Nachova and Others v. Bulgaria ([GC], nos. 43577/98 and 43579/98, ECHR 2005-VII), the national courts ought to have shifted the burden of proof. He explained that the facts pertaining to the possible existence of a practice of racial profiling were within the exclusive knowledge of the State authorities. As to the Government’s argument that he had not provided any evidence in support of his allegations, the applicant replied that the authorities had refused to gather the additional evidence he had requested in order to have the alleged discrimination established. Alternatively, referring to the Court’s case-law in such matters, the applicant submitted that once prima facie evidence of discrimination had been presented, it was for the respondent State to prove that there had been no discrimination. 76. Lastly, the applicant submitted that the domestic courts’ judgments had contained insufficient reasoning with regard to his credible allegation of discrimination. In this connection, he pointed out that the District Court had not even mentioned this complaint, that the Administrative Court, ruling on appeal, had found that the question of potential discrimination remained open and that the Federal Supreme Court had examined the case solely from the standpoint of arbitrariness. The applicant therefore submitted that the question of potential discrimination had never been examined as such. (ii)    The Government
77. The Government argued that there had been no procedural violation of Article 14 of the Convention. On the whole, in both the criminal and the administrative proceedings, the national courts had carefully examined the complaints raised by the applicant. 78. As to the criminal aspect, the Government submitted that the Zürich Minor Offences Office had taken all the necessary measures, including interviewing the police officer and forwarding the relevant training guidelines and documents, to establish whether or not the applicant’s skin colour had been a decisive factor in the police’s decision to subject him to an identity check. 79. They added that it should be borne in mind that the Cantonal Court and the Federal Supreme Court had limited powers of review in so far as these courts could hear a case only when it was alleged before them that the judgment of a lower court contained a mistake of law, or that the establishment of the facts had been manifestly inaccurate or in breach of the law. In the Government’s view, however, the courts in question had carefully examined the applicant’s complaints notwithstanding that restriction. 80. As to the administrative proceedings, the Government argued that the Administrative Court had given considerable attention to the applicant’s complaint that he had been subjected to the impugned check on grounds relating to his skin colour. They pointed out that several pages of the judgment delivered by that court were devoted to an in-depth analysis of the applicable principles in matters of racial profiling, which the court had laid out in detail. In the Government’s view, in finding the identity check to have been unlawful, the Administrative Court had already afforded the applicant full satisfaction in respect of his claims and, furthermore, it had not been required to rule on the question whether the check had been discriminatory in nature. In this connection, the Government argued that, in the final analysis, the applicant had asked the Administrative Court to hold that the impugned check had been unlawful and that he had alleged violations of various fundamental rights only in so far as they constituted grounds of unlawfulness. Since the claim had been formulated thus, the domestic authorities had not been required, in the Government’s view, to rule on each of the alleged violations. The Government added that, when the applicant had finally submitted these complaints of a violation to the Federal Supreme Court, his action had been out of time in the light of the procedural rules, such that the Federal Supreme Court had delivered an exclusively procedural judgment, the appeal having failed to meet the statutory conditions for admissibility. 81. Lastly, the Government argued that the cases in which the Court had found a procedural violation of Article 14 of the Convention in conjunction with Articles 2 and 3 had concerned situations where the authorities of the respondent State had failed to examine the issue of discrimination despite allegations that racist remarks had been made in connection with the acts of violence before them. The Government explained that such cases could not be compared to the present one. (b)   Observations of the third-party interveners
(i)      The French Défenseure des droits
82. The French Défenseure des droits referred to a number of the Court’s judgments and to the ECRI’s recommendations (see paragraphs 50 et seq. above) to emphasise that identity checks performed in a discriminatory manner were in breach of the Convention and could engage the responsibility of the State in view of its positive procedural obligations. 83. She added that the Court had held that discriminatory identity checks required “special vigilance and a vigorous reaction” from the national authorities, which had to use all available means – including those of a procedural nature – to combat racism and to prevent and punish acts of that kind (she referred to Timishev v. Russia, nos. 55762/00 and 55974/00, § 56, ECHR 2005 XII). She pointed to the national authorities’ procedural obligations and to their duty to gather meticulously all relevant evidence as soon as allegations of discrimination were brought to their attention. She also called on the national authorities to adapt the rules on the burden of proof in discrimination cases in order to ensure the right to an effective remedy in accordance with the Court’s case-law, which, she explained, placed the onus on the respondent to prove non-discrimination where the claimant had adduced prima facie evidence of discrimination (ibid., § 57). 84. The Défenseure des droits also took the view that there should be some flexibility when applying the rules on the admissibility of evidence in discrimination cases, failing which, where domestic law did not impose an obligation to justify police checks or to implement a system for tracking them, the subject of the check would encounter insurmountable difficulties and would have only his or her own testimony, that potentially obtained from any witnesses and/or statistical data to present in support of his or her complaint. According to the Défenseure des droits, the absence of any obligation for the police officer concerned to prove that the check was justified on grounds of reasonable suspicion could impede the judicial review and deprive the victim of the opportunity to challenge the measure’s lawfulness in an effective manner and to complain that it was discriminatory. In this connection, she pointed out that in the Gillan and Quinton v. the United Kingdom (no. 4158/05, §§ 83 and 86, ECHR 2010 (extracts)) case, the Court had held that the possibility of challenging such measures by way of judicial review did not constitute a safeguard against abuse, since the police officer was not required to demonstrate the existence of a reasonable suspicion apt to justify the measures in question and any potential abuse of power was therefore impossible to prove. (ii)    The Open Society Justice Initiative
85. For its part, the Open Society Justice Initiative stated that a number of European and American courts had examined racial profiling and the related procedural issues. It argued, in particular, that the French Court of Cassation had held, with regard to a police check certain aspects of which had created a presumption of discrimination, that it was appropriate to shift the burden of proof as to the existence of discrimination and that it therefore fell to the authorities to prove that the impugned check had been based on objective grounds (decisions nos. 15-24207 and others, 9 November 2016). 86. It also pointed out that, in the B.S. v. Spain (no. 47159/08, 24 July 2012) case, the Court had held that, by omitting to examine the complaint that the four incidents in which the applicant had been stopped by the police had been motivated by racism, the national authorities had failed to take account of her particular vulnerability as a African female sex worker, and had thus – in breach of Article 14 of the Convention in conjunction with Article 3 – failed to comply with their duty to take all possible steps to ascertain whether or not a discriminatory attitude might have played a role in the events in question. The third party added that in the Grigoryan and Sergeyeva v. Ukraine (no. 63409/11, 28 March 2017) case, the Court had found that there had been a violation of Article 14 in conjunction with Article 3 in that the authorities had not done all that could have been reasonably expected of them to uncover the racist motives behind the ill-treatment to which the applicant had been subjected. (iii)   Amnesty International
87. Amnesty International explained that indirect discrimination could be proven by providing statistical evidence or by using alternative means of evidence. It pointed out that the Court had established that the burden of proof fell to the State where the events in issue lay wholly, or in large part, within the exclusive knowledge of the authorities (it referred to Bouyid v. Belgium [GC], no. 23380/09, § 83, ECHR 2015). Amnesty International added that the Court had held that, where the authorities, faced with acts of violence by State agents, had failed to take the required investigative measures and had disregarded evidence of possible discrimination, the Court might, when examining complaints under Article 14 of the Convention, draw negative inferences or shift the burden of proof to the respondent Government (see Nachova and Others, cited above, § 128). 88. Lastly, the third party argued that, when confronted with allegations of racist violence, States had the duty to take all reasonable steps to unmask any racist motive and to establish whether ethnic hatred or prejudice had played a role in the events. In this connection, it referred, in particular, to the Nachova and Others (cited above, § 160) judgment. (c)   The Court’s assessment
(i)      General principles
89. Referring to the relevant general principles as reiterated in the Basu (cited above, §§ 31-35) and Muhammad (cited above, §§ 64-68) judgments, the Court considers it appropriate to emphasise following points. 90. A differential treatment of persons in relevantly similar situations, without an objective and reasonable justification, constitutes discrimination (see Timishev, cited above, § 56, and Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV). Racial discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. The authorities must use all available means to combat racism, thereby reinforcing democracy’s vision of a society in which diversity is not perceived as a threat but as a source of enrichment (see Timishev, § 56, and Nachova and Others, § 145, both cited above). 91. It can be seen from the relevant principles that where an arguable claim has been lodged with the authorities of a State alleging that someone has been targeted by a State agent on the ground of race and it is established that the impugned events fall within the ambit of Article 8, the authorities have an obligation, under Article 14 of the Convention, read in conjunction with Article 8, to ascertain whether a link can be established between the alleged racist attitudes and the impugned act. Such an obligation is essential in order for the protection against racial discrimination not to become theoretical and illusory, to ensure protection from stigmatisation of the persons concerned and to prevent the spread of xenophobic attitudes (see Basu, cited above, § 35). The duty must also be fulfilled in such a way as to afford the person concerned the opportunity to show, without facing insurmountable obstacles, that the act in question was ultra vires or an abuse of power (see, mutatis mutandis, Gillan and Quinton, cited above, § 80). 92. Lastly, the Court has also observed that the domestic courts must provide sufficiently detailed reasons for their decisions, not least to enable the Court to carry out the European supervision entrusted to it (see, mutatis mutandis, I.M. v. Switzerland, no. 23887/16, § 72, 9 April 2019, and X v. Latvia [GC], no. 27853/09, § 107, ECHR 2013). A lack of reasoning in domestic decisions, without any real weighing-up of the interests in issue, falls short of the requirements of Article 8 of the Convention (see Platini v. Suisse (dec.), no. 526/18, § 61, 11 February 2020). The above principles, developed inter alia under Article 8, also apply, mutatis mutandis, to Article 14 of the Convention (see, to this effect, Danilenkov and Others v. Russia, no. 67336/01, § 124, ECHR 2009). (ii)    Application of those principles to the present case
(α)     Preliminary remarks
93. The Court considers it appropriate at the outset to emphasise the major difference between the present case and the Basu and Muhammad cases cited above. The difference consists in the fact that, in those cases, the applicants themselves instituted criminal and administrative proceedings against the authorities, whereas in the present case the applicant complained of discriminatory treatment in the criminal proceedings brought against him and was obliged to initiate administrative proceedings to have the impugned identity check declared unlawful (see paragraph 19 above) following his conviction on 16 March 2015 for failure to comply with police orders (see paragraph 9 above). 94. In the light of the relevant principles reiterated above and having regard to the Administrative Court’s finding that there was no objective justification for the identity check to which the applicant was subjected (see paragraph 28 above), the Court takes the view that the competent authorities had a duty to determine whether or not the check and search had been racially motivated. 95. Lastly, the Court observes that the applicant raised a number of complaints in relation to the establishment of the facts and the gathering of evidence by the competent authorities of the Canton of Zürich. It takes the view that it is not essential that these complaints be addressed definitively and considers it appropriate to focus its examination on the question whether, in the context of the applicant’s appeals seeking to have his conviction overturned and the police check declared unlawful, the competent courts duly examined the allegation of racial profiling, and on the question whether they delivered sufficiently reasoned decisions in that regard (see Muhammad, cited above, § 75). (β)      The criminal proceedings (application no. 43868/18)
96. Firstly, as to the criminal proceedings, the Court notes that, in its judgment of 7 November 2016, the District Court confined itself to holding that there was no conclusive evidence that the applicant’s skin colour had been a decisive factor in the police officer’s decision to perform an identity check. It observes, moreover, that, on appeal by the applicant, the Cantonal Court held that the available evidence, in particular the statements given by A. and by the applicant, did not give any indication that the check had been conducted on manifestly discriminatory grounds, adding that there was nothing in the manner in which the check had been conducted to suggest that it had been vexatious or discriminatory in nature. The Court further notes that, in upholding the applicant’s conviction in a judgment of 7 March 2018, the Federal Supreme Court ventured no further than to find that the lower court’s assessment had not been arbitrary. In sum, the Court finds that the applicant’s allegation of racial profiling was not scrutinised in detail by the domestic criminal courts. Lastly, it notes that the District Court, far from conducting a separate investigation into the applicant’s credible allegations of racial profiling, placed the entire burden of proving discriminatory treatment on him. 97. The Court also observes that it is clear from the relevant domestic practice (see paragraph 40 above) that the only instance in which there is no obligation to comply with a police order is where the order in question is null and void. It notes that, in accordance with the doctrine of “evidence” (Evidenztheorie), an order is null and void in the event of a serious, manifest, or at least easily identifiable irregularity. It observes that the Federal Supreme Court’s case-law shows that an order may be found to be null and void, depending on the circumstances of the case under consideration, on account of particularly serious procedural or formal irregularities, but only very rarely as a result of irregularities in its content. This being so, the Court considers that an order cannot in general be declared null and void on the ground that it is incompatible with the Convention, such that in the present circumstances the question whether the impugned identity check was based on a discriminatory or, more specifically, racist ground fell outside the scrutiny of the domestic courts. 98. Lastly, as to the Federal Supreme Court’s reasoning to the effect that the complaint of racial profiling and of a discriminatory motive for the impugned police check was based on a different account of the facts from the one which the first-instance court had found credible, the Court considers it overly formalistic. Moreover, it would point out that the lower court, for its part, had addressed the allegation of racial discrimination, albeit briefly (see paragraph 16 above). (γ)      The administrative proceedings (application no. 25883/21)
99. Regarding the administrative proceedings, the Court would point out that all three of the administrative authorities of the Canton of Zürich to which the applicant applied dismissed his request to declare the check unlawful on the ground that they were bound by the facts as established by the criminal-law authorities (see paragraphs 23, 25 and 26 above). 100. The Court further observes that the Administrative Court, in setting aside the lower authorities’ decisions on an appeal by the applicant, concluded that the check of 5 February 2015 had been unlawful, taking the view that there could be no justification for it, even assuming that it had been prompted by the applicant’s having averted his gaze (see paragraph 28 above). It also notes that the Administrative Court found that, given that the identity check had thus been unlawful in any event, the question whether the applicant’s skin colour had played a decisive role in the police officer’s decision to subject him to a check remained open. 101. Lastly, it observes that, on an appeal by the applicant, the Federal Supreme Court held that he did not have a legitimate interest in having the impugned decision quashed or varied and therefore lacked locus standi to lodge an appeal. It follows, the Court notes, that the highest Swiss court itself failed to examine the allegation of racial profiling. (δ)      Conclusion
102. Having regard to the foregoing considerations, and in particular to the specific circumstances surrounding the identity check and the place – Zürich railway station – where the applicant was subjected to it, the Court finds that the requisite threshold of severity was reached such that the right to respect for private life within the meaning of Article 8 of the Convention is engaged (see paragraph 71 above) and that the applicant has an arguable claim of discrimination on the ground of his skin colour. It follows that Article 14 of the Convention, taken in conjunction with Article 8, is applicable in the present case.

Article of the Convention at issue: Article 14
Outcome: violation