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Basu v. Ger. and Muhammad v. Spain (Eur. Ct. H.R.)
Published online by Cambridge University Press: 13 October 2023
Extract
In two cases decided on October 18, 2022, the European Court of Human Rights issued judgments for the first time in complaints alleging racial profiling in police identity checks. The applicants in both cases alleged that the police had selected them for a check due to racial discrimination, and both argued that the state had failed to conduct an effective investigation in response to their complaints. In one case, a unanimous court found a violation of the European Convention on Human Rights, but in the other case, a sharply divided court decided 4–3 that there was no violation. The cases raise serious questions about proof and evidence in racial profiling cases, as well as what policies and procedures would meet the state obligation to ensure an adequate legal framework to protect against racial discrimination.
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- Copyright © The Author(s), 2023. Published by Cambridge University Press on behalf of The American Society of International Law
References
ENDNOTES
1 Basu v. Germany, App. No. 215/19 (Oct. 18, 2022) [hereinafter, Basu].
2 Muhammad v. Spain, App. No. 34085/17 (Oct. 18, 2022) [hereinafter, Muhammad].
3 Racial profiling in policing is defined by the Council of Europe's European Commission against Racism and Intolerance (ECRI) as: “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.”
4 See, e.g., Open Society Justice Initiative, International Standards on Ethnic Profiling: Decisions and Comments from the UN System (July 2016) (providing a compilation of standards relevant to racial profiling from the ICCPR, CERD, and CRC, and the jurisprudence and recommendations on racial profiling of the UN human rights treaty bodies, UN Special Procedures, and the Universal Periodic Review).
5 Quoted in Basu, ¶ 14.
6 Muhammad, ¶ 38, quoting UN Human Rights Committee, Williams Lecraft v. Spain (CCPR/C/96/D/1493/2006).
7 Muhammad, ¶¶ 6–7.
8 Muhammad, ¶¶ 9–10.
9 Applicant Basu also alleged a violation of Article 1 of Protocol No. 12 (general prohibition of discrimination), but the Court decided not to address it since the facts alleged fell within Articles 8 and 14 (see ¶ 43).
10 Basu, ¶ 33.
11 Basu, ¶¶ 26, 29.
12 Basu, ¶ 37.
13 Basu, ¶ 38.
14 Partial dissent in Basu, ¶ 4.
15 Partial dissent in Basu, ¶¶ 9–10, 12.
16 Muhammad, ¶ 99.
17 Partial dissent in Basu, ¶ 15.
18 U.N.H.R.C., Williams Lecraft v. Spain (U.N. Doc. CCPR/C/96/D/1493/2006).
19 See ECRI definition of racial profiling in policing, supra note 3.
20 See Basu, ¶ 22.
21 Wa Baile v. Switzerland, App. No. 25883/21 (communicated to the Swiss Government on Aug. 28, 2020).
22 D.H. and Others v. Czech Republic, App. No. 57325/00, 47 Eur. H.R. Rep. 3 (2008), ¶ 188.
23 Wa Baile, supra note 21.
24 App. No. 35844/17 (communicated to the French Government on Oct. 25, 2021).