CYIL vol. 14 (2023)

CYIL 14 (2023) RACIAL PROFILING AND IDENTITY CHECKS … and Others v France (no. 35844/17) regarding identity checks carried on the applicants by law enforcement officials and which they describe as racial profiling. 34 Speaking about the analysed rights, the analysis of the UN Human Rights Committee decision provided above rested on the general prohibition of discrimination established in Article 26 of the International Covenant on Civil and Political Rights, as this document has a separate prohibition of discrimination. In the case of ECtHR cases, both of them were analysed from the standpoint of the protection of private life, protected by Article 8 of ECHR, in conjunction with Article 14, which prohibits discrimination in relation to the other rights established by the Convention, and in case of Muhammad v Spain , also as separate claim of discrimination, as Spain has ratified Protocol No. 12 of ECHR prohibiting discrimination in general. Whereas the analysis of the Committee concerned directly the question of racial discrimination, and the analysis of the ECtHR concerned the question whether the actions amounted to interference with private life. 4.1 The facts of the cases In the case Muhammad v Spain 35 it was established that the applicant, who had a long term residence permit to live in Spain, and his friend were stopped by Spanish National Police officers. The place of identity check was a busy street in Barcelona, where pickpocketing and thievery are relatively frequent. The applicant was asked to provide his identity documents and after refusing to do so was arrested for a short time and brought to the police quarters. The arrest did not take place in the presence of family members or neighbours. The account of the events of the applicant and the police officers differed. The police officers claimed that the applicant laughed at them as they passed by and referred to them using disrespectful language. They indicated that this behaviour was the reason why they approached the applicant and requested to provide his identity documents. The applicant, on the contrary, argued that he had only been stopped because he is black. The applicant complained that the officers were motivated in a discriminatory way and that the investigation that was carried out was not sufficient and effective. The applicant had started both criminal and administrative proceedings in Spain, which did not support his claims of racial discrimination. In the case Basu v Germany, 36 the applicant, a German national of Indian origin, and his daughter were travelling on a train from the Czech Republic to Germany. The police officers checked their identities on the train. Among the persons present in different compartments of the train carriage, the two police officers had only checked the identity papers of him and his daughter. When the applicant asked for the reasons for the identity check, the officers explained that a random identity check was carried out, and that there were cigarettes frequently smuggled on that train. The officers however confirmed that there had not been any specific suspicion in respect of the applicant in this regard. The applicant had insisted that he and his daughter had been singled out because they were the only persons with a dark skin colour on the particular train carriage. 37 The German courts had dismissed his

34 European Court of Human Rights, ‘Racial profiling’ (Factsheet, November 2022) accessed 22 June 2022. 35 Muhammad v. Spain, App no 34085/17 (ECHR, 18 October 2022), para. 5–10. 36 Basu v Germany , App no 215/19 (ECHR, 18 October 2022), paras. 5–9. 37 Basu (n 36) para. 6.

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