On 20 February 2024, the European Court of Human Rights (the ‘ECtHR’) held unanimously that Article 13 and Article 14 read in conjunction with Article 8 of the European Convention on Human Rights had been violated in applicant’s claim for failure of Swiss authorities to decide on racial profiling claim. Article 13 provides for the right for an effective remedy before the national authorities for violations of rights under the convention, Article 14 provides for prohibition of discrimination and Article 8 is the right to respect for one’s private and family life, home and correspondence.
While commuting to work in 2015, the municipal police officers stopped the applicant at the Zürich train station to check his identity. The applicant refused to show a form of identification, which resulted in the officers searching the applicant’s pockets and backpack to find his documents. Upon confirming the applicant’s identity, as a Swiss National, the applicant was allowed to continue his journey.
Following the incident, in 2015 and 2016, there were criminal proceedings brought against the applicant for his failure to comply with the identity checks, and in the District Court he was fined 100 Swiss Francs. From 2018 to 2020, the applicant had his request to have the identity check declared unlawful rejected at several instances, subsequently appealing to the Zürich Cantonal Administrative Court, who found that the check was unlawful but did not make any findings as to racial discrimination. Upon appeal by the applicant to the Federal Supreme Court, the appeal was inadmissible.
The main claim of the applicant was that he suffered discrimination based on the colour of his skin, and contested that there had been a failure on the part of Swiss authorities to decide if he was a racially profiled, with reliance on Article 14 in conjunction with Article 8. The applicant also put forward that he was the only commuter, among mostly white commuters, to have been checked at that time, and did not receive any reasons for being stopped. For this complaint, the applicant also claimed on grounds of Article 13 that there was no effective remedy available to him.
The ECtHR found that there was a failure by the national courts to analyse whether the identity check was linked to grounds of discrimination, and thus, the required level of severity was met to engage article 8. The court also held that discriminatory identity checks could arise due to lack of adequate legal and administrative structure. As the presumption arose that there had been discriminatory treatment, and the government failed in rebutting this, there had been a violation of Article 14 read in conjunction with Article 8. Due to the consequences of discrimination, the court notes the need for the authorities to have a ‘special vigilance and a vigorous reaction’.
Furthermore, the ECtHR held that as the discrimination claim had not been suitably examined, the applicant had no effective remedy available to him at the domestic courts, and thus there was a violation of Article 13, linked to the complaint under Article 14.
FLAC in its submission on the review of the Equality legislation recommended that bodies like An Garda Síochána would be explicitly brought within its remit in order to ensure that racial profiling would come within the ambit of the Equal Status Acts.
In finding these violations, Switzerland was ordered to pay €23, 975 for costs and expenses. Although this is a Chamber judgement, and thus not final until after a three month period without a referral by any party of the case to the Grand Chamber of the Court, it represents an important finding for cases of alleged discrimination.
Click here to read the European Court of Human Rights’ Press Release on Wa Baile v Switzerland.