CYIL vol. 14 (2023)

CYIL 14 (2023) RACIAL PROFILING AND IDENTITY CHECKS … an objective and reasonable justification, persons in relevantly similar situations”, 60 whereas indirect discrimination is “a difference in treatment [in]the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group. Such a situation may amount to “indirect discrimination”, which does not necessarily require a discriminatory intent.” 61 The burden of proof for the applicant is to show a difference in treatment, which may follow from the coexistence of sufficiently strong, clear, and concordant inferences or of similar unrebutted presumptions of fact. After this, the burden of proof shifts to the Government to show that the difference in treatment was justified. 62 Turning to the circumstances of the case, the Court turned to examine the place and nature of the identity check. Even though the check had been carried out in a public place, the Court stressed that neither the identity check nor the arrest took place in the presence of family members or in his neighbourhood. Furthermore, the street where he was arrested was known for pickpocketing and thievery. 63 The applicant relied heavily on the fact that nobody else belonging to the “majority Caucasian population” had been stopped on the same place immediately before, during, or after his identity check. However, the Court observed that “this cannot be taken as an indication per se of any racial motivation behind the request for him to show his identity document.” 64 The Court continued with the analysis whether the facts of the case showed that racial motivation was behind the identity check. In this case, the Court was persuaded by the arguments of the respondent state (Spain) and its institutions. The ECtHR stated that; The applicant has not succeeded in showing any surrounding circumstances which could suggest that the police were carrying out identity checks motivated by animosity against citizens who shared the applicant’s ethnicity, or which could give rise to the presumption required to reverse the burden of proof at the domestic level as to the existence of any racial or ethnic profiling. The Court sees no reason to depart from the domestic courts’ conclusion that the applicant’s attitude, and not his ethnicity, was what caused the police officers to stop him and to identify him. It was only his refusal to show proof of his identity that caused his detention in order to be identified at the police premises, as provided by the applicable law. 65 The Court also noted that the question was analysed in both criminal and administrative proceedings which found no such indications. Thus, the conclusion of the majority of the chamber (four votes to three) was that it was not “established that racist attitudes played a role in the applicant’s identity check by the police and his arrest in that context. [The Court] thus finds that there has been no violation of Article 14 read in conjunction with Article 8 of the Convention in this respect.” 66

60 Muhammad (n 35) para. 92. 61 Muhammad (n 35) para. 93. 62 Muhammad (n 35) para. 94. 63 Muhammad (n 35) para. 97. 64 Muhammad (n 35) para. 99. 65 Muhammad (n 35) para. 99. 66 Muhammad (n 35) paras. 102–103.

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