CYIL vol. 14 (2023)

CYIL 14 (2023) RACIAL PROFILING AND IDENTITY CHECKS … identity, for the purposes of Article 8 of the Convention”. 45 Thus in both cases the ECtHR has considered that Article 14, taken together with Article 8, was applicable. 46 4.3 The duty to investigate the instances of alleged racial profiling The ECtHR noted in both cases that the Governments did not contest the obligation of investigation of such cases, but nevertheless it went on to elaborate the arguments for the obligation of investigation in such cases. Speaking about protection of private life and the obligation of the state to investigate such cases, the ECtHR stressed that it had ruled on the obligation of the state to investigate even when private individuals infringe Article 8, 47 where the state is obliged to carry out an effective investigation to rectify the matter to the extent possible. 48 The Court found that “an obligation to investigate should even less be excluded in the context of Article 8 in relation to acts of State agents if the applicant makes an arguable claim that he has been targeted on account of specific physical or ethnic characteristics.” 49 Speaking about the content of the state obligation to investigate, the Court stressed that this obligation entails doing “what is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of racially induced violence.” 50 In Basu v Germany , the Court further stressed the importance of independence of the investigative bodies: that for an investigation to be effective, the institutions and persons responsible for carrying it out must be independent of those targeted by it. This means not only a lack of any hierarchical or institutional connection but also practical independence. 51 Furthermore, the importance of an investigation lies in the fact that racial discrimination is “a particularly egregious kind of discrimination and, in view of its perilous consequences , requires from the authorities special vigilance and a vigorous reaction”. 52 Racial discrimination results in stigmatisation and alienation, negatively affects the dignity of the persons concerned, and contributes to the spread of xenophobic attitudes. 53 Thus the ECtHR concluded that once there is an arguable claim that the person concerned may have been targeted on account of racial characteristics and such acts, […], fall into the ambit of Article 8, the authorities’ duty to investigate the existence of a possible link between racist attitudes and a State agent’s act is to be considered as implicit in their responsibilities under Article 14 of the Convention also when examined in conjunction with Article 8. 54 Turning to the situations in the case, in Basu v Germany the allegations of the applicant regarding the racial nature of the identity check were evaluated by a superior police authority and administrative courts. The ECtHR stated that internal investigation by the police cannot

45 Muhammad (n 35) para. 51. 46 Basu (n 36) para. 27, Muhammad (n 35) para. 51. 47 Basu (n 36) para. 32, Muhammad (n 35) para. 64. 48 Basu (n 36) para. 32. 49 Basu (n 36) para. 32, Muhammad (n 35) para. 64. 50 Basu (n 36) para. 33, Muhammad (n 35) para. 66. 51 Basu (n 36) para. 33. 52 Basu (n 36) para. 34, Muhammad (n 35) para. 65. 53 Basu (n 36) para. 34. 54 Muhammad (n 35) para. 68, see also Basu (n 36) para. 35.

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