CYIL vol. 14 (2023)

CYIL 14 (2023) RACIAL PROFILING AND IDENTITY CHECKS … that may be indicative of racially induced violence. Thus, the ECtHR develops the principles applicable to the national investigation itself. Speaking about the material aspect of the protection of private life from unlawful discrimination, the important factor is whether the applicants are able to prove a difference in treatment due to racial discrimination, give sufficient evidence 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. There are suggestions that this burden of proof to make an initial case could be reversed, but in any case, the significant practical hurdles remain to reconstruct circumstances under which the alleged discrimination occurred, and this will surely be at the attention of the scholars and the Court judges in future cases. Lastly, it may be questioned whether the different conclusions in both cases over the violation/non-violation of Articles 8 and 14 were reached in the ECTHR due to concerns for the subsidiarity principle. In Muhammad v Spain , the national independent investigation had taken place on national level, judicial scrutiny had been carried out before national administrative court, and thus it appears that the principle of subsidiarity prevented the ECtHR from materially scrutinizing the case and reviewing the conclusions reached by that national court.

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