CYIL vol. 14 (2023)

LENKA SCHEU – VIOLETA VASILIAUSKIENĖ CYIL 14 (2023) be considered an independent investigation in the sense of the Convention. 55 Speaking about the administrative courts, it should be noted that the German administrative courts have dismissed the applicant’s action on formal grounds, considering that the applicant did not have a legitimate interest in a decision on the lawfulness of his identity check. In this way the courts did not examine necessary evidence and did not hear witnesses who were present during the identity check. Taking into account all these circumstances, the Court found there was a procedural infringement imputable to the State, where “state authorities failed to comply with their duty to take all reasonable measures to ascertain through an independent body whether or not a discriminatory attitude had played a role in the identity check, and thus failed to carry out an effective investigation in this regard.” 56 Consequently, the Court concluded that it was unable to make a finding on the material aspect of the infringement, that is, as to whether the applicant was subjected to the identity check on account of his ethnic origin. Judge Pavli provided his dissenting opinion, stating that the Court should have gone further and investigated the material aspect of the case. 57 A different conclusion was reached in Muhammad v Spain . The Court stated that it was important that police officers were identified, they did not deny having asked the applicant to show his documents, and their testimony was taken into account in both the criminal and the administrative proceedings. The Court notes that criminal proceedings were initiated to investigate whether the facts constituted any offence, and the police officers involved were heard orally as persons under investigation. Following the discontinuation of the criminal proceedings (against which the applicant did not appeal), the written testimony of the police officers was also taken into account in the administrative proceedings. Their report of the events was used as evidence in order to ascertain whether there was a causal link between the alleged conduct of the public authorities and the harm suffered by the applicant. 58 The ECtHR noted that the applicant chose to pursue his claim in administrative proceedings; the domestic courts assessed the evidence and concluded that no liability could be established. Moreover, the applicant did not appeal the decisions of the central administrative court regarding the admissibility of evidence. The ECtHR stressed that “the applicant was able to challenge the domestic courts’ decisions, which were sufficiently reasoned and motivated. It follows that there has been no violation of Article 14 read in conjunction with Article 8 of the Convention in this respect.” 59 However, the Court was not unanimous in its decision. Two judges provided dissenting opinions stating that there was a violation of the obligation to effectively investigate allegations of racial discrimination regarding the right to private life. 4.4 Substantive aspect of the Muhammad v Spain case Analysing the situation of Muhammad v Spain , the Court reiterated the notions of direct and indirect discrimination. Direct discrimination – “treating differently, without

55 Basu (n 36) para. 36. 56 Basu (n 36) para. 38. 57 Basu (n 36) Dissenting opinion of Judge Pavli. 58 Muhammad (n 35) para. 71. 59 Muhammad (n 35) paras. 73–75.

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