Wa Baile v. Switzerland
Ethnic profiling—such as when an individual is stopped and searched by police because of their skin color rather than what they are doing—is a form of discrimination. It can also violate other fundamental rights such as the right to respect for private life.
Ethnic profiling is not just unfair and ineffective, but also takes a heavy toll on those who are targeted and negatively impacts society as a whole. However, despite being unlawful, it remains a widespread phenomenon across Europe and elsewhere. Countries across the world are legally obliged to prevent ethnic profiling, as well as to ensure effective protection for victims of such discrimination.
Facts
Mohamed Wa Baile claims to have been subjected to ethnic profiling in 2015, when he was stopped by police officers in a train station in Zurich and told to identify himself. Wa Baile, a Swiss citizen and a visible minority, states that he was not given a reason for the check. He was then subjected to a search and fined 100 Swiss francs for not identifying himself.
The police report notes Wa Baile’s dark skin colour and indicates that suspicion was aroused because he allegedly looked away from police officers. The Swiss courts rejected Wa Baile’s claim, referring to factors such as the police report and stating that there was an increased expectation of delinquency in the busy train situation. In 2018, Wa Baile lodged an application for the matter to be heard by European Court of Human Rights (ECtHR).
Open Society Justice Initiative Involvement
To assist the ECtHR in considering Wa Baile’s application, the Justice Initiative submitted written comments as a third party intervener. The comments provide an overview of:
- the legal standards prohibiting ethnic profiling;
- the legal requirements for lawful police stop and searches; and
- the measures that states are legally obliged to take in order to prevent ethnic profiling and protect victims.
Written Comments
Legal standards prohibiting ethnic profiling. Ethnic profiling violates the right to non-discrimination under international, European, and domestic law. It can also lead to the violation of other important fundamental rights, including freedom of movement, the right to respect for private life, and the right to be free from inhuman and degrading treatment. International, regional, and domestic institutions and courts have repeatedly condemned ethnic profiling.
Legal requirements for lawful police stop and searches. Police stop and searches are an interference with the right to respect for private life under Article 8 of the European Convention on Human Rights. Such interferences can be justified only if they are in accordance with the law and necessary in a democratic society to achieve a legitimate aim. The legal powers under which police are entitled to stop and search a person must be sufficiently circumscribed and subject to adequate legal safeguards against abuse, including discrimination. Under Article 14, in order to show that a difference in treatment is not discriminatory, a State must demonstrate an objective and reasonable justification. The difference in treatment must pursue a legitimate aim and the means employed must be proportionate to that aim. General biased assumptions or prevailing social prejudice do not provide sufficient justification.
Obligations to prevent ethnic profiling and protect victims. States must use all available means to combat racism. This includes effective judicial remedies, including domestic courts examining state authorities’ justifications and ascertaining whether racial bias or discriminatory attitudes might have played a role.
The court found, unanimously, that Wa Baile had been subjected three violations of the European Convention on Human Rights:
A procedural violation of Article 14 (prohibition of discrimination), in conjunction with Article 8 (right to respect for private life). The decision noted that Swiss courts had failed to examine whether discrimination on the basis of skin color might have played a part in the identity check to which the applicant had been subjected.
A violation of Article 14 in conjunction with Article 8 as to the allegation of the discriminatory nature of the identity check to which the applicant had been subjected. The court concluded that there was, in the circumstances of the case, a presumption, which the Government had failed to rebut, that the applicant had been subjected to discriminatory treatment on the basis of skin color.
A violation of Article 13 (right to an effective remedy) in connection with the applicant’s complaint under Article 14 read in conjunction with Article 8. The Court found that no effective remedy had been available to the applicant in the domestic courts in respect of his complaint.
Court ruling in Wa Baile's favor, finding three violations of the European Convention on Human Rights.
The Justice Initiative submits written comments as third party intervener in a related case initiated by Wa Baile before the European Court of Human Rights containing more up-to-date information than the written comments submitted to the court on January 21, 2021, in Wa Baile’s original application.
The Justice Initiative submits written comments before the European Court of Human Rights as a third party intervener.
Related Cases
Seydi and others v. France
Racial profiling by the police is pervasive in France. This case argues that the application of Article 78-2 of the French Criminal Procedure Code violated numerous fundamental rights and freedoms.
Williams v. Spain
With Women’s Link Worldwide and SOS-Racismo Madrid, the Open Society Justice Initiative filed a complaint to the United Nations Human Rights Committee on behalf of Rosalind Williams regarding a case of racial profiling by a Spanish police officer.