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.