CYIL vol. 14 (2023)

LENKA SCHEU – VIOLETA VASILIAUSKIENĖ CYIL 14 (2023) complaints as inadmissible, stating that the applicant did not have a legitimate interest in the judgment of the lawfulness of the identity check. 4.2 The applicability of the ECHR The first question analysed by the ECtHR in both cases was whether the actions in question fall under the ambit of Article 8, taken together with Article 14 of ECHR. 38 The case facts were analysed if they passed this first threshold – the threshold of severity in order to apply Article 8 of ECHR. The Court has considered in some situations it necessary “to specifically examine whether the effects of the act in question attained a threshold of severity – that is, had serious negative effects on the individual’s private life – in order for Article 8 to be applicable”. 39 In order to invoke Article 8, the applicants have to identify and explain “the concrete repercussions on their private life and the nature and extent of their suffering, and to substantiate such allegations in a proper way.” 40 The ECtHR has underlined that identity checks may fall under the scope of private life, especially if the use of coercive powers conferred by the legislation was employed. 41 Furthermore, an important aspect, in the Court’s opinion, is the public nature of the search, which “may, in certain cases, compound the seriousness of the interference because of an element of humiliation and embarrassment”. 42 (see Gillan and Quinton , cited above, § 63). In this particular case, where applicants allege racial profiling and thus racial discrimination, it is important that the applicant presents an arguable claim that they may have been targeted on account of specific physical or ethnic characteristics, for example, if they can prove that [they] (or persons having the same characteristics) had been the only person(s) subjected to a check and where no other grounds for the check were apparent or where any explanations of the officers carrying out the check disclose specific physical or ethnic motives for the check. The Court further observes in this regard that the public nature of the check may have an effect on a person’s reputation and self-respect. 43 Both applicants claimed and provided arguments for the statement that the check was based on the grounds of their race, as they did not witness any other persons who were checked at the same time. They also noted the negative consequences of such identity checks. 44 As the Court stated in Muhammad case, “the identity check necessarily affected the applicant’s private life, and would have been sufficient to affect his psychological integrity and ethnic

38 ECtHR, ‘Guide on Article 8 of the European Convention on Human Rights’ (31 August 2022) Accessed 14 August 2023; ECtHR, ‘Guide on Article 14 of the European Convention on Human Rights and on Article 1 of Protocol No. 12 to the Convention’ (31 August 2022) Accessed 14 August 2023.

39 Basu (n 36) para. 22. 40 Basu (n 36) para. 22.

41 Basu (n 36) para. 22, Muhammad (n 35) para. 49. 42 Basu (n 36) para. 22, Muhammad (n 35) para. 49. 43 Basu (n 36) para. 25. See also Muhammad (n 35) para. 50. 44 Basu (n 36) para. 26, Muhammad (n 35) para. 51.

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