CYIL vol. 14 (2023)

LENKA SCHEU – VIOLETA VASILIAUSKIENĖ CYIL 14 (2023) 3) the manner in which the check was conducted was not inconsiderate or offensive, also the officers did not act in angry or strident fashion as to attract attention to Mrs. Lecraft and the persons accompanying her, making her feel ashamed or uncomfortable; 4) the check did not take longer than necessary to conduct an identity check and did not restrict the complainant’s freedom of movement. Taking into account these criteria, the Spanish Constitutional Court found no evidence that the National Police officer’s conduct was dictated by racial prejudice or any particular intolerance of members of a specific ethnic group. The Committee dissented with the conclusion of the Spanish Constitutional Court that race may be considered a legitimate ground to check the identity of an individual. The main question it was answering was “whether being subjected to an identity check by the police means that the author suffered racial discrimination.” 29 The Committee noted that identity checks carried out for public security or crime prevention purposes in general, or to control illegal immigration, served a legitimate purpose. However, the main statement of the Committee was that during these checks, “the physical or ethnic characteristics of the persons subjected thereto should not by themselves be deemed indicative of their possible illegal presence in the country.” 30 It further ruled that they should not be carried out in such a way as to target only persons with specific physical or ethnic characteristics. To act otherwise would not only negatively affect the dignity of the persons concerned, but would also contribute to the spread of xenophobic attitudes in the public at large and would run counter to an effective policy aimed at combating racial discrimination. 31 Then the Committee analysed the facts of the case in order to determine whether this check was in fact carried out solely on the grounds of race. The Committee concluded from the facts provided to it that “the author was singled out for the identity check in question solely on the ground of her racial characteristics and that these characteristics were the decisive factor in her being suspected of unlawful conduct.” 32 The Committee also found that there were no reasonable and objective criteria for differentiation of officers conduct in the present case which would allow to justify the different treatment. Thus, the final conclusion of the Committee was that the facts before it disclosed a violation of Article 26, read in conjunction with Article 2(3) of the International Covenant on Civil and Political Rights. 33 4. The jurisprudence of the ECtHR on the question of racial profiling The ECtHR has been presented with two cases concerning racial profiling and has delivered its judgments in both cases on 18 October 2022. There are 2 pending applications Wa Baile v Switzerland (no. 25883/21) regarding identity check of a Swiss national; and Seydi

29 UN Human Rights Committee (n 25). 30 Ibid. 31 Ibid. 32 Ibid. 33 Ibid.

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