A. United Nations Human Rights Committee

11. The United Nations (UN) Human Rights Committee dealt with alleged discrimination resulting from an identity check in its Views of 27 July 2009 on Communication No. 1493/2006 submitted by Rosalind Williams Lecraft against Spain (CCPR/C/96/D/1493/2006). Finding a breach of the prohibition of discrimination under Article 26, read in conjunction with Article 2, paragraph 3, of the International Covenant on Civil and Political Rights in the circumstances of the case, the Committee stated the following:

B. European Commission against Racism and Intolerance

12. The Council of Europe's European Commission against Racism and Intolerance (ECRI) adopted General Policy Recommendation No. 11 on combating racism and racial discrimination in policing on 29 June 2007 (CRI(2007)39). It defines racial profiling as follows:

13. The ECRI recommends to the governments of Member States, inter alia:

14. The Explanatory Memorandum to the Recommendation, regarding paragraph 1 of the Recommendation, provides, in so far as relevant:

15. Paragraph 11 of ECRI's General Policy Recommendation No. 7 on national legislation to combat racism and racial discrimination, adopted on 13 December 2002, in the version applicable at the relevant time, reads as follows:

A. Admissibility

B. Merits

A. Direct discrimination and the reversal of the burden of proof: general principles

3. The Court has concluded under its admissibility analysis that the applicant put forward, at both the national level and in the Strasbourg proceedings, “an arguable claim that [he] had been targeted on account of specific physicalFootnote ¹ or ethnic characteristics”. It reached this conclusion by relying on the uncontested allegation that the applicant and his daughter, being of dark skin, were the only individuals who had been subjected to the identity check in their part of the train; and that the police officer who had performed the check “had not disclosed any other objective grounds for targeting the applicant” (see paragraph 26 of the judgment).

4. This conclusion begs the following question: in the presence of an arguable claim of direct discrimination on racial or ethnic grounds by a State agent, why did the majority not shift the burden onto the respondent to prove that the differentiated treatment was in fact in compliance with Article 14? I find that the judgment provides no persuasive answer to this question in effectively dismissing the applicant's claim that there has been a substantive violation of the anti-discrimination provision, in addition to the procedural violation. After all, it is a central tenet of our Article 14 jurisprudence that, as a rule, it is for the applicant to show a difference in treatment and for the Government to show that it was justified (see Timishev v. Russia, nos. 55762/00 and 55974/00, § 57, 13 December 2015; D.H. and Others v. the Czech Republic, no. 57325/00, § 177, 13 November 2007; and Di Trizio v. Switzerland, no. 7186/09, § 84, 2 February 2016). It is the very function and purpose of rules on the allocation of the burden of proof to allow the Court to reach substantive conclusions in the absence of complete certainty about the facts of the case or other relevant considerations. Even the respondent Government have conceded that “only the State had the ability to establish the relevant facts” (see paragraph 30 of the judgment). It is therefore not necessary or appropriate to regard the investigative failures at the national level as a factor that would objectively prevent the Court from reaching conclusions on the substantive component. Among other reasons, this may provide perverse incentives to any national authorities which may not be inclined to “lift the lid” on either isolated or, worse still, systemic incidents of racial profiling by State agents. It also makes it nigh impossible for victims of racial profiling to succeed in a claim of a substantive violation in such circumstances.

5. In addition to our own jurisprudence, principles on the reversal of the burden of proof in the discrimination context are also firmly established in European law more generally, including European Union legislation and the standards of the Council of Europe's own European Commission against Racism and Intolerance (ECRI). These standards are cited in paragraphs 15-16 of the judgment, but it is not clear to what purpose. They state the relevant requirements in almost identical terms: when individuals establish “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 breach of the principle of equal treatment” (see Article 8 of EU Directive 2000/43/EC, emphasis added; see also ECRI's General Policy Recommendation No. 7, paragraph 11).

6. Our jurisprudence to date has for the most part looked at conduct of State agents potentially motivated by racist or other discriminatory animus in the context of Article 3 of the Convention, involving, for example, acts of police brutality (see paragraph 33 of the judgment and the cases cited therein). It is true that in some of these cases the Court has chosen not to shift the burden of proof onto the respondents despite the failure of the national authorities to carry out an effective investigation into the allegations of discrimination – on the basis that such an approach would amount to requiring the respondent Government to prove the absence of a particular subjective attitude (see Nachova and Others v. Bulgaria, nos. 43577/98 and 43579/98, § 157, 6 July 2005).

7. The present case, however, sits in a very different context. Firstly, unlike unjustified police violence, which is illegal and can be motivated by many different factors, an identity check of train passengers is presumably legal and ought to be based on sound and objective law-enforcement standards. Secondly, discrimination in this context may not be driven necessarily by a police officer's individual and conscious attitude or hostility against a particular racial or ethnic group; it may also be the result of biased (or at least permissive) internal police guidelines, practices or attitudes, whether formalised or merely tolerated by the hierarchy. To put it simply, it is not too much to ask of the Government in this context to merely show that the identity check had an objective and reasonable basis, not triggered exclusively or primarily by the person's race or the fact of belonging to another group. For similar reasons, it would place an unfair and often impossible burden on the applicants to require them to prove the State agent's discriminatory attitude. This would limit their chances to situations where a police officer would, say, be reckless enough to express his or her discriminatory motives and the future applicant would be lucky enough to have witnesses available. As such, it would hardly be fit to deter pernicious practices of racial discrimination by State agents.

8. Finally, the refusal to shift the burden of proof in cases of an arguable claim of direct discrimination by State agents would create some rather paradoxical effects – considering that the Court has often agreed to do so in situations where applicants have put forward a presumption of indirect discrimination, e.g. by providing evidence of an apparently neutral practice that has produced disproportionately harmful effects on a particular group of people (see Hoogendijk v. the Netherlands (dec.), no. 58641/00, 6 January 2005; D.H. and Others, cited above; and Di Trizio, cited above). In such circumstances, the Government are invited to rebut that presumption by pointing to objective factors underlying the practice or policy. I cannot see why applicants such as Mr Basu, claiming to be victims of direct discrimination in a police check, ought to be placed in a less favourable position.

B. The general national context and legal framework

9. Various international bodies have published findings regarding the degree of prevalence of problematic profiling practices by German law enforcement. The present judgment does not, however, include any information about the general national context. ECRI has addressed the issue in its last two reports on Germany; in the most recent one, from December 2019, it expressed concerns about allegations of racially motivated conduct by police forces and referred, for example, to a study in which 34 percent of respondents of sub-Saharan African background reported having been stopped by the police at least once within the past five yearsFootnote ².

10. Another ECRI critique is more directly relevant to this case as it involved the same legal provision that was invoked as the basis for Mr Basu's identity check in the present case – section 23(1)(3) of the Federal Police Act (the “FPA”, see paragraph 10 of the judgment) – as well as the internal police guidelines on identity checks, which are not publicly available. With respect to the latter, ECRI noted in its above-cited 2019 report (paragraph 107) that “even though a [national] higher administrative court considered the practical guidelines of the police as too vague to protect individuals against their abusive use, ECRI did not receive any information about any attempt to render them more precise”. These were presumably the same laws and guidelines that were in force at the time when the present applicant was stopped during his train ride, on 26 July 2012.

11. German courts have also been critical of section 23 of the FPA and its application in certain contexts. The Baden-Württemberg Higher Administrative Court held in 2018 that section 23 did not provide a sufficient legal basis for an identity check involving a train passenger close to a border crossing; whereas a second court found that the police had misused their powers when carrying out an identity check at a train station where skin colour had been the decisive factor for the police officer in choosing to check the individual concernedFootnote ³. Finally, section 23 of the German FPA has also been subject to review by the Court of Justice of the European Union in a 2017 case involving an individual who had been ID checked by the German police while crossing on foot the Europa bridge between Strasbourg and Kehl. The CJEU found that section 23 was incompatible with the Schengen Borders Code (on internal Schengen checks), considering that the checks were authorised irrespective of the behaviour of the person concerned and with no limitations as to the intensity and frequency of checksFootnote ⁴.

12. To be clear, these rulings did not hold that German legislation or secondary regulations directly authorised racial profiling by the police. They do strongly suggest, however, that they may facilitate, or are poorly crafted to prevent or deter, such practices by granting too much discretion to the police in making so-called randomised stops and too little objective guidance or restrictions against profiling based on racial or ethnic characteristics.

C. A substantive violation in the present case

13. In view of the above submissions, it is my position that the Court should have proceeded to consider whether there had been a substantive violation of Article 14, read in conjunction with Article 8, by assessing whether the respondent Government had been able to rebut the presumption that the applicant had been subjected to discriminatory treatment due to his skin colour. Before turning to the Government's arguments in this regard, it is necessary to make two preliminary points.

14. The first positive obligation of a State Party in this context is to establish a legislative and regulatory framework that is capable of effectively preventing and deterring police profiling on racial or other prohibited grounds (see, mutatis mutandis, on positive obligations under Article 14, Volodina v. Russia, no. 41261/17, 9 July 2019; Budinova and Chaprazov v. Bulgaria, no. 12567/13, 16 February 2021; and Behar and Gutman v. Bulgaria, no. 29335/13, 16 February 2021)Footnote ⁵. The judgment's failure to address these questions is a significant omission in my opinion. In view of the international and national criticism discussed in the second part of this separate opinion, it is rather questionable whether the German legal framework on police checks can be considered compatible with the positive requirements of Article 14. Only a legal system that takes seriously the pernicious effects of racial discrimination, including in the form of improper police profiling of individuals, can be deemed to be in compliance with Article 14. Furthermore, the latest ECRI report includes no information as to whether German anti-discrimination legislation has properly incorporated the EU and ECRI standards on the distribution or reversal of the burden of proof in this field.

15. The next preliminary question relates to the substantive standard to be applied in this context – in other words, what exactly is it that Article 14 prohibits when it comes to profiling by State agents? This question has also remained without a clear answer, as the majority declined to address the claim of a substantive violation. I would argue that to some extent this is true also for the twin case of Muhammad v. Spain (cited above), which did consider the allegations of a substantive violation on the merits. The Muhammad judgment phrases the relevant question as to whether the police were “motivated by animosity against citizens who shared the applicant's ethnicity” (ibid., paragraph 100) or “motivated by racism” (ibid., paragraph 101) – thus placing a strong emphasis on the police officer's subjective attitude or animus as the sole basis for a finding of discriminatory treatment. In my view, the approach adopted by the UN Human Rights Committee in Rosalind Williams Lecraft v. Spain (CCPR/C/96/D/1493/2006) is more appropriate in this context, the key question being whether the complaining individual “was singled out … solely on the ground of her racial characteristics and that these characteristics were the decisive factor in her being suspected of unlawful conduct” (see paragraph 11 of the present judgment, citing paragraph 7.4 of the HRC Views).

16. Turning now to the facts of the present case, I have already noted the unanimous finding that the applicant submitted an arguable claim that he had been singled out on the basis of his skin colour – relying on facts from which an instance of direct discrimination by a State agent can be presumed. To rebut this presumption the respondent Government put forward two main lines of argument: (i) that the applicant and his daughter were not the only persons checked on the same train; and (ii) that an internal police investigation did not find any evidence of racist attitudes on the part of the police officer who conducted the search (see paragraph 30 of the judgment).

17. I find that neither of these arguments, taken alone or together, are capable of meeting the respondent's burden of proof. The fact that other passengers were also checked, perhaps in other parts of the train, does not prove much in the absence of any data on the racial or ethnic affiliation or appearance of those other checked passengers, or the reasons for checking their identity. Likewise, the previous history of the police officer may be of some relevance, but not decisive on its own. The respondent Government's arguments still leave us in the dark regarding two crucial considerations: (i) on what basis did the police officer make the specific decision to conduct an identity check of the applicant and his daughter on that train; and (ii) on what basis are such checks generally conducted by German border police under section 23(1)(3) of the FPA. These questions were not answered either at the national level or before the Court. To merely argue that the checks were randomised does not answer the question (and I return to the randomisation aspect below), especially considering the existence of internal guidelines of the German police, whose content remains unknown to the Court, on these issues.

18. The respondent Government have therefore been unable to rebut the presumption of direct discrimination on grounds of skin colour, by pointing to any objective, reasonable and colour-blind grounds for the differentiated treatment. If the Government's burden was made heavier due to the shortcomings of the investigation by the national authorities, I see no reason why this should work to the Government's favour or to the applicant's disadvantage (he would otherwise suffer twice from the poor domestic investigation). As a result, I would have found that there had been a substantive violation of the applicant's rights under Article 14, read together with Article 8, of the Convention.

D. The not-so-hidden costs of procedural minimalism

19. Today's cases have only begun to scratch the surface of the complex legal and policy questions surrounding (potentially) discriminatory profiling in Europe. By adopting a highly proceduralist approach and opting not to engage with these difficult questions of substance, the majority have done no favours to the cause of equality of individuals, the development of our jurisprudence, or even the goal of better policing around the continent at a time of great geopolitical turmoil and cross-border challenges.

20. Without seeking in any way to provide an exhaustive analysis or complete answers, the following key questions can be identified:

1. (i) It has been argued that in order to prevent discriminatory profiling by the police or other related encroachments on individual liberty, national laws should require that identity checks be carried out only on the basis of a reasonable suspicion of illegality (see, for example, the submissions of the applicant in Muhammad v. Spain, cited above), or at least on objective grounds related to the conduct of the individual being stopped and/or police intelligence pointing to such grounds (including physical characteristics of a suspect, e.g. as identified by witnesses to a crime). This option would allow little or no room for so-called randomised checks or checks that are not based on individualised suspicion.

2. (ii) Conversely, should randomised or sample-based identity checks be permissible in some contexts, such as border controls, mass crowd events, anti-terrorism preventive operations or other situations involving a large number of people? If so, how can this carve-out be prevented from turning into a legal loophole that grants police officers the power to stop people at a whim, whether in law or in practice? If computer programs can perhaps be truly random, human beings are less likely to be so in the absence of previously agreed randomisation methods (e.g. to check every fifth car) that limit the discretion of individual officers. It is worth noting that in the present case the Government's claims of a random checking of the applicant and his daughter appear to fall in the former category, at least in the absence of any information about the internal guidelines followed by German border police.

3. (iii) And is there room for a standard that falls somewhere in between reasonable suspicion and randomised checks? For example, some domestic courts have taken the position that identity checks based on a person's racial or ethnic appearance – however reliable those assumptions might be in the first placeFootnote ⁶ – are generally not permissible, unless the police meet the higher burden of demonstrating, through reliable statistics, “an increased delinquency of certain target [racially or ethnically defined] groups on the basis of situational pictures related to the location or situation”Footnote ⁷. From the perspective of the individual being stopped, would such a standard be considered a reasonable law enforcement policy or one that essentially legalises discrimination by affiliation or association? (On the latter topic, see Molla Sali v. Greece [GC], no. 20452/14, 19 December 2018; and Škorjanec v. Croatia, no. 25536/14, § 55, 28 March 2017).

4. (iv) As a legal and practical challenge, in many countries the collection of statistics or operational police records on racial or ethnic grounds is prohibited by anti-discrimination law. Paradoxically, however, that may make it much harder for both public bodies and potential victims of profiling to assess and demonstrate the possible existence of indirect discrimination through entrenched or informal practices in law enforcement and other domainsFootnote ⁸. Likewise, internal police guidelines on identity checks are public in some countries (such as Spain), but not in others (like Germany).

5. (v) Finally, as a broader policy question, does racial or ethnic profiling make for good policing? There is a great deal of research that answers that question in the negative, considering that discriminatory profiling can be seen as an “easy” and ineffective substitute for sound crime-fighting methods; and not least because it tends to alienate entire communities whose cooperation with the police is ever more important in our increasingly multi-ethnic societiesFootnote ⁹.

21. It is of course not possible, or wise, for one or two ground-breaking judgments of this Court to seek to address all facets of a complex phenomenon such as discriminatory profiling in policing. But one has to start somewhere. The facts of the present case, as well as the applicant's specific submissions, invited the Court to begin to delineate the substantive standards to be applied in this field, beyond the preliminary (albeit essential) requirements of an effective domestic investigation. The majority have declined that invitation by stopping at a finding of a procedural violation. While minimalism may have its fans, both as a legal doctrine and as a school of architecture and design, it is not necessarily the best way to ensure equality for all in our diverse societies; which are here to stay.

A. Identity check and arrest of the applicant

5. The applicant has lived in Spain since 2005 and holds a long-term residence permit that allows him to live and work in Spain indefinitely.

6. On 29 May 2013 the applicant and his friend K.A., both Pakistani nationals of the same ethnicity, were stopped by two National Police officers while walking on a street in Barcelona in which pickpocketing and thievery are relatively frequent. According to the applicant, he was talking to his friend when the officers asked them for their identity documents, after which the applicant allegedly asked the reason for the identity check and the conversation went as follows:

7. Reportedly, the applicant protested against the officer's racially motivated reasons, which prompted the police officer to get out of his car, softly slap the applicant, and put him into the car. According to the applicant, the police officer proceeded to inform him of his arrest while threatening him about potentially negative consequences concerning the renewal of his residence permit and called him “monkey”. The applicant was arrested and taken to a police station. The arrest did not take place in the presence of family members or in his neighbourhood. Only his friend K.A. was present. According to the applicant, K.A. was also requested by the police to produce identification, and he showed his documents.

8. Those facts were contested by the police. In the police registry of detentions, it is reflected that the applicant was requested to identify himself on the street at 4.15 p.m., which he refused to do, and that the police officers took him to the police premises, where at 4.40 p.m. he showed his ID, following which he was released and accompanied on his way out at 4.43 p.m. A report of the events signed on the same day by the two police officers involved reflects that, at around 4:05 pm, the police officers were patrolling in a police car through a busy street in Barcelona. They only approached the applicant after he had laughed at the police officers and referred to them using disrespectful slang as they passed by. After being requested to show his identity card, the applicant had answered “Why? Because I'm black? No way!” After being informed by the police that his refusal to be identified could result in an administrative fine or even constitute a criminal offence under Spanish law, the applicant had answered: “I refuse to identify myself. What are you going to do?”

9. According to the police report, it was only then that he was transferred to the police premises in order to be properly identified. There, he gave his NIE (number for identifying regular foreign residents in Spain) and, with an angry attitude, threw it onto a table and said: “I'm giving it to you now because I want to, not because you requested it.” In contrast, the police report of the day of the events does not mention the applicant's friend, and there is no record concerning him. The Government submitted that the applicant's friend K.A. was not asked to show his identity documents since he had not made any comments to the police.

10. It is undisputed that, after being identified at the police station, the applicant received a minor administrative notice (denuncia de infracción administrativa) for having refused to identify himself, displaying “a lack of respect towards authority” and “showing an insolent attitude”. The police officers then accompanied him to the nearest bus stop.

B. Domestic criminal proceedings for unlawful detention

11. On the day of his arrest, the applicant allegedly tried to lodge a criminal complaint against the police officers in two police stations, but he was informed that they would not accept any complaints against other officers.

12. The next day, on 30 May 2013, the applicant lodged a handwritten criminal complaint with the Barcelona investigating court no. 3. The court initiated criminal proceedings, and immediately discontinued them.

13. The applicant, assisted by the human rights non-governmental organisation (NGO) SOS Racisme Catalunya, lodged an appeal against the discontinuation of the proceedings. The public prosecutor endorsed the appeal and observed that further evidence was required in order to clarify the facts. The investigating judge upheld the appeal and, in a decision of 24 March 2014, agreed to obtain a statement from the two police officers (as persons under investigation in the criminal proceedings), a statement from the applicant as a victim and his friend K.A. as a witness, video-recordings of any surveillance cameras in the area of the alleged events at the relevant time, and the file on the applicant's administrative offence.

14. In the meantime, on 15 July 2013 SOS Racisme Catalunya lodged a new criminal complaint on the applicant's behalf with the two Catalan police stations mentioned above, challenging their refusal to register his complaint of misconduct against the National Police. The police acknowledged receipt of the complaint but declined to address the specific facts contained therein until the judicial criminal proceedings had finished.

15. The criminal proceedings were instituted only on the basis of the applicant's allegations of defamation (based on the alleged insults), bodily harm (based on the alleged slapping), unlawful detention, unlawful humiliation committed by a civil servant when lawfully searching documents of a person, intimidation, and forgery of official documents (see paragraph 36 below), and not in relation to the allegedly discriminatory identity check. The two police officers were questioned as persons under investigation. They held that the applicant had only been taken to the police station in order to verify his identity, as he had refused to show his documents (which he was legally required to do) when requested to do so on the street. They also emphasised the fact that his friend K.A. had not been asked to identify himself because he had not made any comments. The testimony of K.A. could not be heard because it proved impossible to notify him within the proceedings, although the applicant submitted a sworn statement of his friend's testimony, given as an affidavit before a notary on 2 December 2013, in which he had confirmed the applicant's account of the facts. No relevant video footage could be found despite the investigating court's request.

16. In April 2015 the public prosecutor requested the discontinuation of the proceedings. The investigating court ordered the discontinuation in a decision of 2 June 2015. The applicant lodged an appeal with the same court, to no avail. He then lodged another appeal with the Audiencia Provincial, which was dismissed in a decision of 4 February 2016 upholding the discontinuation of the criminal proceedings for lack of evidence of the commission of any criminal offence.

17. The applicant did not lodge any further appeals, and the decision to discontinue the criminal proceedings became final. The applicant has not complained before the Court in respect of this matter.

C. Domestic administrative proceedings for racial discrimination

18. On 7 April 2014, while the criminal proceedings were still pending, the applicant initiated administrative proceedings in the form of a State liability claim (reclamación por responsabilidad patrimonial del Estado) with the Ministry of the Interior, complaining that the identity check carried out by the police had been discriminatory. He submitted that it had caused him deep feelings of humiliation, unfair persecution, exclusion and marginalisation, all of which had infringed his personal dignity. He sought an acknowledgment that the police's behaviour had been unlawful, a public apology from the State, 3,000 Euros (EUR) in respect of non-pecuniary damage and the publication of the judgment in the media.

19. To substantiate his complaint, the applicant submitted the same sworn statement from his friend as an eyewitness to the identity check as had been submitted in the criminal proceedings (see paragraph 15 above). He also submitted documents substantiating his attempts to lodge a complaint at the police stations; his judicial criminal complaint; the file on the criminal proceedings; statistical expert reports (including an analysis of statistical data conducted by the Human Rights Institute of the University of Valencia and Oxford University, and a report from the Spanish Ombudsperson); news articles concerning widespread discrimination by the police forces; other reports from international, regional and national human rights bodies (including the Council of Europe's European Commission against Racism and Intolerance (ECRI) and the United Nations Committee on the Elimination of Racial Discrimination (CERD)) concluding that Spanish police identity checks amounting to racial profiling were a pervasive and widespread practice; and reports by NGOs (including Amnesty International) corroborating the statistical conclusions. The applicant requested that the two police officers be heard and that the Ministry of the Interior again try to obtain video footage from the surveillance cameras in the area.

20. The applicant also argued that the Spanish Law on the protection of public safety, as in force at the time of the incident (see paragraph 33 below), did not provide adequate safeguards to prevent racial or ethnic profiling and other discriminatory conduct by the police forces. In particular, he asserted that the law did not establish a requirement for a sufficiently well-founded reason to carry out identity checks, among other flaws, which allowed room for arbitrary and discriminatory behaviour.

21. The police authorities submitted a report, drafted by the police's legal department, which stated, on the basis of the submissions of the two police officers involved in the applicant's identification, that there had not been any racial motives behind the identity check, and that it had been motivated by his defiant attitude and conduct and not by his appearance. The report commended the police officers’ conduct. They also submitted a report by the Head of the Police in Catalonia dated 30 April 2014 (report no. 1895), which incorporated the record of the administrative proceedings against the applicant for his refusal to identify himself, as drafted by the two police officers involved.

22. The administrative authorities initially decided to stay the administrative proceedings until a final decision in the criminal proceedings had been given, but eventually decided to continue them because the two sets of proceedings were based on different grounds: the applicant maintained that the criminal proceedings were based on forgery, insults and threats allegedly committed by the police officers during and after his arrest, whereas the administrative proceedings were based on the allegedly discriminatory identity check.

23. By a decision of 16 July 2014, the administrative authorities informed the applicant that there was no need to hear the police officers since the record of their statement following the incident had already been included in the file, and that the video footage would not be a relevant piece of evidence in the administrative proceedings. The administrative authorities considered that they had agreed to proceed at the request of the applicant, even though there were judicial criminal proceedings pending, but clarified that some of the evidence proposed by the applicant was only relevant to the criminal proceedings.

24. By a decision of 6 November 2014, the administrative proceedings were discontinued for lack of evidence of the allegedly discriminatory treatment. The authorities found that, in order to find the State liable for acts or omissions committed by the public authorities, the claimant had the burden of supporting his claims with sufficient evidence. In the present case, despite the applicant's statement that he had suffered a discriminatory identity check and that this had caused him non-pecuniary damage, there was no supporting evidence. They also observed that his version of the facts was radically different from the one presented by the police. As a result of the above, they concluded that a causal link between the State's liability and the alleged harm suffered by the applicant had not been established, and the claim had to be dismissed.

25. In January 2015 the applicant instituted judicial administrative proceedings against the administrative decision of 6 November 2014 with Central Administrative Court no. 11 (Juzgado Central de lo Contencioso-administrativo). He asserted that nobody else of white ethnicity had been stopped and asked to provide identification, and that the only reason for his being stopped had been his appearance. In his appeal, the applicant also argued that there was a pervasive practice of ethnic/racial profiling in the Spanish police forces, facilitated in part by the relevant legislation. He relied on multiple statistical expert reports and news articles concerning widespread discrimination by the police forces; reports by other international, regional and national human rights bodies concluding that Spanish police identity checks amounting to racial profiling were a pervasive and widespread practice; and NGO reports corroborating the statistical conclusions (he submitted the same documents as in the administrative proceedings – see paragraph 19 above). He also reiterated his request for an award of EUR 3,000 in respect of non-pecuniary damage, a public apology from the State and the publication of the apology and the judgment in a national newspaper. The applicant also requested the domestic court to ask the Court of Justice of the European Union for a preliminary ruling on the compatibility of police racial profiling to identify irregular migrants with Article 21 of the Charter of Fundamental Rights and Articles 4, 5, 6 and 21 of the Directive on common standards and procedures in Member States for returning illegally staying third-country nationalsFootnote ¹.

26. In order to substantiate his allegations, the applicant asked to have summoned and examined at the hearing his friend K.A., the police officers involved in his identity check and arrest, and an expert witness to explain a report on racial profiling statistics attached to the administrative file. During a preliminary hearing, the evidence proposed by the applicant was rejected by the central administrative court. The applicant appealed orally against that decision (recurso de reposición), but his appeal was immediately dismissed. The administrative court held that the written statement of the police officers was already in the administrative file, his friend's witness statement was also included in a notarised document attached to the administrative file and it was not necessary to hear the expert proposed by the applicant to clarify or explain the statistical report already submitted, as the report could be examined and assessed by the judge himself.

27. By a judgment of 14 September 2015, the applicant's appeal was dismissed. Firstly, the central administrative court pointed out that the administrative proceedings could only result in an award of compensation to the applicant for damage caused by the functioning of the public authorities, and on no account could it result in a public apology from the State or the publication of the judgment and apology in a national newspaper. The judge also found that a direct or indirect link between the allegedly discriminatory conduct by the police officers and the harm allegedly suffered by the applicant had not been established. The judge further found that the evidence provided by the parties (the applicant and the police) was essentially contradictory, and that the documents provided by the police stated that there had not been any wrongdoing in the request for the identification of the applicant, which had been caused by his defiant attitude. According to the judge, the applicant had not provided any support for his version of the facts. There was therefore no causal link between the harm he had allegedly suffered (which was also not established) and the functioning of the public authorities.

28. On 20 October 2015 the applicant lodged an application with the same court to have the above-mentioned judgment declared void, which was dismissed on 17 May 2016 on the grounds that what the applicant was actually requesting was a new assessment of the evidence and, ultimately, a favourable decision. The domestic court held that the complaints about the inadmissibility of the evidence had already been dealt with during the hearing by way of an oral appeal that had also been reasonably dismissed, so there had been no violation of any fundamental right. With regard to the request for a preliminary ruling from the Court of Justice, it considered that it was not warranted, given that European Union legislation was not necessary to resolve the applicant's administrative claim in the case at hand.

29. Lastly, the applicant lodged an amparo appeal with the Constitutional Court, which was declared inadmissible on 3 November 2016 for lack of constitutional relevance. The decision was served on 8 November 2016.

A. Admissibility

45. The Government submitted that the applicant had failed to exhaust the available domestic remedies. He had instituted two separate and independent sets of proceedings in the national criminal and administrative courts based on different substantive issues and entailing the use of different remedies. The criminal proceedings had been concluded by means of a discontinuation decision and the applicant had not lodged an amparo appeal against that decision.

46. The applicant submitted that his complaints before the Court concerned exclusively the administrative proceedings, since the identity check, even if racially motivated, did not constitute a crime per se. He further argued that he had duly exhausted domestic remedies in the administrative proceedings, in that he had lodged an amparo appeal with the Constitutional Court.

47. The Court observes that, after his administrative complaint based on racial and ethnic profiling by the police was rejected by the administrative authorities, the applicant unsuccessfully brought his claim before Central Administrative Court no. 11 and later lodged an amparo appeal with the Constitutional Court, which was declared inadmissible for lack of constitutional relevance.

48. The applicant's complaints before the Court refer to the administrative proceedings only. Consequently, the Government's objection must be dismissed.

49. The Court also notes that an identity check by the police can fall within the scope of the private life of the person subjected to that check, and therefore, constitute an interference in that person's private life as protected by Article 8 of the Convention. In particular, the Court has found that the use of coercive powers conferred by legislation to require an individual to submit to an identity check and a detailed search of his person, his clothing and his personal belongings amounted to an interference with the right to respect for private life (see Gillan and Quinton v. the United Kingdom, no. 4158/05, § 63, ECHR 2010 (extracts), and Vig v. Hungary, no. 59648/13, § 49, 14 January 2021). The public nature of the search may, in certain cases, compound the seriousness of the interference because of an element of humiliation and embarrassment (see Gillan and Quinton, cited above, § 63).

50. However, not every identity check of a person belonging to an ethnic minority attains the necessary threshold of severity so as to fall within the ambit of the right to respect for that person's private life. That threshold is only attained if the person concerned has an arguable claim that he or she may have been targeted on account 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 of the officers carrying out the check disclose specific physical or ethnic motives for the check. The Court further observes in this regard that the public nature of the check may have an effect on a person's reputation (see, inter alia, Bédat v. Switzerland [GC], no. 56925/08, § 72, 29 March 2016, and Denisov v. Ukraine [GC], no. 76639/11, § 112, 25 September 2018, with further references) and self-respect.

51. The Court notes that the applicant had been subjected to an identity check by the police in public, on the street. According to his submission, that check had only been carried out because of his dark skin colour and thus on racial grounds. The identity check necessarily affected the applicant's private life, and would have been sufficient to affect his psychological integrity and ethnic identity, for the purposes of Article 8 of the Convention (see Király and Dömötör v. Hungary, no. 10851/13, § 43, 17 January 2017). Therefore, the Court considers that the identity check in question falls within the ambit of Article 8. Accordingly, Article 14 is applicable.

52. The Court further notes that the application 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

I. Positive obligation to carry out an effective investigation

4. As regards the State's obligation under Article 14 of the Convention read in conjunction with Article 8, the majority highlight the “special duty of investigation” by the authorities in cases where racial discrimination is alleged (see paragraph 65 of the judgment). They consider, nevertheless, that in the present case the respondent State complied with this obligation (see paragraphs 69-76 of the judgment). I am unable to share this conclusion for the following main reasons.

5. First, the majority point out that criminal proceedings were initiated to investigate the facts and that the police officers were heard, and they observe further that the written testimony of the police officers was taken into account in the administrative proceedings (see paragraph 71 of the judgment). However, the criminal proceedings and the administrative proceedings were based on different grounds. As mentioned in the present judgment, the criminal proceedings were not in relation to the allegedly discriminatory identity check (see paragraph 15 of the judgment)Footnote ³.

6. Secondly, the applicant requested that the central administrative court hear K.A., the police officers involved in the impugned identity check and arrest, and an expert witness to explain a report on racial profiling statistics. However, all those requests were dismissed by the central administrative court (see paragraph 26 of the judgment). I also note that the administrative authorities did not consider that seeking video footage would be a relevant piece of evidence (see paragraph 23 of the judgment). The applicant was therefore deprived of a concrete opportunity to support his version of events.

7. Thirdly, the central administrative court ruled that the evidence provided by the parties (namely the applicant and the police) was “essentially contradictory” and that the documents provided by the police stated that there had not been any wrongdoing in the request for the identification of the applicant (see paragraph 27 of the judgment). Actually, a contradiction of this kind appears in many discrimination cases concerning identity checks: the statement of the person who claims to be a victim of racial discrimination is in contradiction with the testimony of the police officers. In these circumstances, it is of the utmost importance to carry out an effective investigation. As the Court has repeatedly said, for an investigation to be effective, the institutions and persons responsible for carrying it out must be independent from those targeted by it. This means not only a lack of any hierarchical or institutional connection but also practical independence (see, among other authorities, Bouyid v. Belgium [GC], no. 23380/09, § 118, ECHR 2015). In that regard, it is difficult to find that an independent investigation has been conducted in the present case.

8. Therefore, although the State enjoys a margin of appreciation in determining the manner in which to organise its system to ensure compliance with the Convention, I am not really convinced that the national authorities did what was reasonable in the present circumstances to investigate the existence of a possible racist attitude (see, regarding the principles, paragraphs 65-68 of the judgment).

II. Positive obligation to set up an adequate legal framework

9. Furthermore, I regret that the majority do not address the obligation for the Contracting States to set up an adequate legal framework affording effective safeguards against arbitrariness and preventing discrimination in cases of identity checks carried out by State agents. In my opinion, this important issue should have been examined by the Court in order to verify whether the Spanish legal system provides an adequate level of protection.

10. This obligation on States would be fully in line with the principle of subsidiarity, which implies that the national authorities have the primary task of implementing and enforcing the rights and freedoms guaranteed by the Convention.

11. I note in this connection that the applicant expressly argued before the national authorities that the Spanish Law on the protection of public safety, as in force at the time of the incident, did not provide adequate safeguards. In particular, he asserted that the law did not establish a requirement for a sufficiently well-founded reason to carry out identity checks, among other flaws, which allowed room for arbitrary and discriminatory behaviour (see paragraph 20 of the judgment).

12. In its case-law, the Court has already held in many cases that the authorities’ positive obligations under the Convention may include a duty to establish an adequate legal framework affording protection of vulnerable people (see Öneryıldız v. Turkey [GC], no. 48939/99, § 89, ECHR 2004-XII, concerning Article 2 of the Convention; Volodina v. Russia, no. 41261/17, §§ 77 and 85, 9 July 2019, and O'Keeffe v. Ireland [GC], no. 35810/09, § 148, ECHR 2014 (extracts), relating to Article 3 of the Convention; Rantsev v. Cyprus and Russia, no. 25965/04, § 285, ECHR 2010 (extracts), as regards Article 4 of the Convention; and Söderman v. Sweden [GC], no. 5786/08, §§ 80 and 89, ECHR 2013, and F.O. v. Croatia, no. 29555/13, § 91, 22 April 2021, regarding Article 8 of the Convention) or providing effective safeguards against arbitrariness by State agents (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 209, ECHR 2011 (extracts)).

13. In particular, in Giuliani and Gaggio, concerning the use of force and firearms by police officers, the Court stated: “Unregulated and arbitrary action by State agents is incompatible with effective respect for human rights. This means that policing operations must be sufficiently regulated by national law, within the framework of a system of adequate and effective safeguards against arbitrariness and abuse of force” (ibid., § 249). In my view, those considerations are also relevant to the present issue.

III. Negative obligation: not to discriminate

14. In discrimination cases, the issue of evidence is crucial but also particularly tricky. Applicants are often faced with difficulties in proving discriminatory treatment (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 186, ECHR 2007-IV). In other contexts, the Court has already pointed out some kinds of prima facie evidence which can shift the burden of proof on to the respondent State, such as reports by non-governmental organisations or international observers, or statistical data from the authorities or academic institutions (see, as a recent example, Y and Others v. Bulgaria, no.9077/18, § 122, 22 March 2022).

15. In the present case, as I consider that the respondent State did not comply with its obligation to carry out an effective investigation into possible racist motives, I am unable to take a position on whether racist attitudes played a role in the applicant's identity check by the police and his arrest (see paragraph 102 of the judgment).