Wa Baile v Switzerland: An Implicit Acknowledgment of Racial Profiling as Structural Discrimination

Nozizwe Dube

After the 2022 landmark rulings Basu v Germany and Muhammad v Spain, the ECtHR has handled another racial profiling case. In Wa Baile v Switzerland, the ECtHR unanimously held that there was a procedural and substantive violation of the prohibition of discrimination (Article 14) in conjunction with the right to respect for private life (Article 8). Additionally, Article 13 was breached as the applicant did not have an effective remedy in the domestic courts.

With Wa Baile, the ECtHR strengthened its growing racial profiling jurisprudence by paying more attention to the systemic nature of racial profiling among Swiss police. Acknowledging racial profiling as systemic discrimination is important because it dispels the idea that racial profiling exclusively occurs when individual police officers act out of personal racist motives. In Wa Baile, the ECtHR corrected the individual-oriented approach to racial profiling it had initially taken in Basu and Muhammad. At the same time, a shortcoming of Wa Baile is that the ECtHR did not adopt the Committee on the Elimination of Racial Discrimination’s (CERD) entire definition of racial profiling that is explicitly intersectional. An intersectional conceptualisation of racial profiling is important because it could have guided the ECtHR to discuss, within its analysis of racial discrimination, how the applicant’s perceived immigrant status contributed to the profiling. Furthermore, future cases may require a more robust intersectional understanding of racial profiling.

Facts

The facts in Wa Baile date back to February 2015, when the applicant – a Black Swiss man – was stopped for an identity check by municipal officers in the Zürich railway station while on his way to work. The applicant refused to comply with police orders, upon which they took him aside and searched his pockets and backpack until they found a document establishing his identity. The applicant was allowed to leave once his identity was confirmed.

Criminal proceedings were initiated against the applicant in 2015 because of his refusal to comply with police orders. Though the applicant argued that the identity check constituted racial profiling, the District Court convicted him and fined him 100 Swiss francs (§14). In 2016, the applicant instituted administrative proceedings to have the impugned identity check declared unlawful (§19). His request was rejected by the municipal police, the Municipal Council, and the Zürich District Office. In 2020, he appealed to the Zürich Cantonal Administrative Court, which held that the identity check was unlawful and that the question whether the applicant’s race played a decisive role in the decision to check his identity remained open as the criminal courts had not reviewed this (§28). The applicant lodged an appeal with the Federal Supreme Court, which was declared inadmissible (§§29-30). 

Before the ECtHR, the applicant argued that the identity check and fine constituted racial discrimination, pursuant Article 14 in conjunction with Article 8 (§58). He also submitted that no effective remedy was available to him as required by Article 13 through which he could have his complaint regarding Article 14 and Article 8 examined (§137).

Judgment

Although the applicant had also invoked Article 6§2, the ECtHR examined the case under Articles 14 and 8 (§60). The ECtHR reiterated its established line of reasoning in Basu and Muhammad where it held that identity checks can fall within the ambit of Article 14 and Article 8 if the case reaches a certain threshold. That threshold is attained when an applicant has an arguable claim that they were targeted because of physical or ethnic characteristics. This occurs when the applicant or others with the same characteristics are the only people subjected to a check or where no other objective ground is provided for carrying out the check (§71).

The ECtHR assessed both the procedural and substantive limbs of Article 14 in conjunction with Article 8, concluding that both aspects had been violated. In its procedural assessment of the alleged breach of the duty to establish whether discriminatory grounds played a role in the identity check, the ECtHR reiterated the invidious nature of racial discrimination and how its potentially perilous consequences require special vigilance and vigorous reaction from the authorities as held in Timishev v Russia. The ECtHR placed considerable weight in the Zürich Cantonal Administrative Court’s finding that there was no objective justification for the identity check. Consequently, it was incumbent on the courts to determine whether the check was racially motivated in order to curb stigmatisation and prevent xenophobia (§91). The ECtHR also found it important to emphasise the difference between Wa Baile and prior racial profiling cases Basu and Muhammad. In the latter two cases, the applicants had initiated criminal and administrative proceedings themselves, whereas here it was the applicant who had criminal proceedings brought against him and had to institute administrative proceedings to declare the check unlawful. Precisely because of this difference, the ECtHR found it important for the courts to determine whether the check was racially motivated or not. As the domestic courts had failed to examine this, it amounted to a procedural violation of Article 14 in conjunction with Article 8 (§§102-103).

The ECtHR answered the substantive question whether the identity check was discriminatory affirmatively (§136). The ECtHR reiterated that States have an obligation to secure the effective enjoyment of Convention rights and freedoms, which is a particularly important obligation for minoritized people because they tend to be victimised. Such an obligation is of heightened importance in discrimination cases (§124). As the ECtHR established in Nachova and Others v Bulgaria, national legislation regulating policing operations must secure a system of adequate and effective safeguards against arbitrariness and abuse of force (§126). The ECtHR noted the inadequate training of Swiss police officers to prevent racial profiling. Additionally, the absence of a legal and administrative framework was prone to give rise to discriminatory identity checks (§§127-130). As for Switzerland’s argument that it was up to the applicant to provide statistics to substantiate racial discrimination, the ECtHR held that it suffices for the applicant to prove their allegation for the burden of proof to shift to the Government to demonstrate that the differential treatment was justified (§132). The ECtHR also relied on Amnesty International observations, which intervened as a third party, to substantiate a presumption of racial discrimination among Swiss police which the Government failed to rebut (§135).

Finally, absent an effective remedy for the applicant in domestic courts in respect of the racial discrimination complaint, there was a violation of Article 13.

Analysis

Wa Baile is an improvement of the ECtHR’s racial profiling jurisprudence. To begin with, the ECtHR foregrounded the systemic nature of racial profiling. This differs from Muhammad and Basu where it prioritised requiring applicants to prove individual racist intent. By considering the systemic nature of racial profiling in Wa Baile, the ECtHR was able to conclude that there was a presumption of discriminatory treatment. This is important because in Basu (§38) the ECtHR had been unable to determine whether there had been a substantive violation of Article 14 in conjunction with Article 8 due to its individual-oriented assessment.

Despite this pivotal improvement, the ECtHR did not adopt the CERD’s entire intersectional definition of racial profiling. The ECtHR’s omission is unfortunate, as it risks further entrenching a single-categorical understanding of racial profiling that can limit the transformative potential of its future case law on the matter. These points are discussed below.

A Better Eye for the Systemic Nature of Racial Profiling

The ECtHR has previously held that State authorities have a duty to conduct an effective and independent investigation to establish whether police conduct was discriminatory once a person has an arguable claim of racial profiling. In Muhammad (§§99-100) and Basu (§36), the ECtHR suggested that the burden of proof is shifted once there is proof of racist motives. This, as Ringelheim, Streichler and Moschel identified, is a problematic line of reasoning as it saddles applicants with the disproportionate burden of proving racist intent. Whether racial profiling occurs because of individual racist motives or because police officers are following institutionalised orders entrenched in racism, the inflicted harm remains identical. 

In Wa Baile, the ECtHR did not fixate on proving individual racist intent. Rather, it leant on reports illustrating the prevalence of systemic racial profiling in Switzerland to substantiate a presumption of discrimination. This is a welcome development, as it foregrounds the systemic nature of racial profiling. Pivotal in proving the systemic nature of racial profiling and substantiating the presumption of racial discrimination among Swiss police were reports from CERD, ECRI, and Amnesty International (§§133-136).

The ECtHR’s appreciation for the systemic nature of racial profiling is important for interrelated reasons. First, highlighting the systemic nature of racial profiling allows for a contextual approach. Such a contextual approach whereby the police is scrutinised as the powerful institution it is, is more fruitful because it does not place the focus on comparing how individual police officers treat other people they encounter in the vicinity, for example. This latter approach eclipses the systemic harm perpetuated by racial profiling. Solely confining racism to individual behaviour and not acknowledging how it is also structural and thus embedded in the social, economic, cultural and political organisation of society is limiting. Recognising the systemic nature of racial profiling defies the idea of racism as being an individual aberration.

Second, acknowledging the systemic nature of racial profiling also means that the focus is shifted from the individual intentions of police to the dignitary harm that such racial profiling inflicts. For example, the police in Wa Baile argued that the applicant’s behaviour (averting his eyes when police looked at him) was the reason for his identity check, and not his race (§14). Even if this were true, it does not change the harm that the profiling inflicted on the applicant. Paying attention to dignitary harm makes non-discrimination law more attentive to the perspectives of victims.

While the ECtHR is cognisant of the systemic nature of racial profiling, an important question is whether the ECtHR was solely open to acknowledging this because of how Wa Baile differs fromprevious racial profiling cases. In Basu, the ECtHR was unable to make a finding as to whether the applicant was subjected to the identity check because of his ethnicity. The ECtHR highlights that Wa Baile had one decisive aspect that enabled it to examine this: the Administrative Court’s conclusion that the identity check was unlawful gave rise to a strong presumption that the identity check was discriminatory. If Wa Baile’s difference is the only reason why the ECtHR took a different approach, it is uncertain whether the ECtHR’s improvements in this case will extend to future cases

Awaiting the Intersectional Turn

Notable in Wa Baile is that the ECtHR referred to CERD’s General Recommendation 36 definition of racial profiling (§18): “the practice of police and other law enforcement relying, to any degree, on race, colour, descent or national or ethnic origin as the basis for subjecting persons to investigatory activities or for determining whether an individual is engaged in criminal activity”. The ECtHR also included CERD’s conceptualisation of racial profiling as being linked to stereotypes and biases which can be conscious or unconscious, and individual or institutional and structural (§43).

CERD’s definition of racial profiling acknowledges that racialisation can occur based on different, yet intertwining, elements. Racialisation, the process of attaching racial meaning to people and hierarchically categorising them, can be done based on skin colour but also based on other (perceived) identity traits such as language, nationality, ethnicity and immigration status. In Wa Baile, the police officer noted that the applicant drew his attention and seemed suspect because he assumed the applicant infringed the Swiss Federal Act on Foreign Nationals and Integration (§5). Thus, both Wa Baile’s race as well as the perception that he was an undocumented immigrant led to his racial profiling. Though the applicant did not raise the ground of immigrant status, the ECtHR could have addressed it under the racial discrimination analysis using its anti-stereotyping approach for example, because the police officer used the applicant’s perceived immigrant status to racialize him.

A significant challenge with intersectional claims is that equality law is predominantly based on a single-categorical framework where there is the assumption that each applicant only experiences discrimination based on a singular ground. Therefore, applicants tend to shoehorn their multifaceted experiences of discrimination on the singular ground they deem most viable within courts. This can potentially clarify why Wa Baile highlighted race as the sole relevant discrimination ground, thereby not addressing how his perceived immigrant status also contributed to his profiling. In the interest of building an intersectional equality framework that encourages (future) applicants to wholly highlight their experiences of racial profiling, the ECtHR should consistently adopt an intersectional definition of racial profiling. For this reason, it is unfortunate that the ECtHR did not include that CERD also acknowledges that racial profiling often intersects with grounds “such as religion, sex and gender, sexual orientation and gender identity, disability, age, migration status, and work or other status”.  Though these last grounds were not at stake in Wa Baile, it is feasible that these intersections may arise in future racial profiling cases.

In relation to the intersection of race with sex and gender, the ECtHR’s own case law is starting to show how and where racialised people of different genders can be racially profiled. Cases such as Muhammad and Wa Baile illustrate how racialised men – precisely because they are racialised people and male – are disproportionately racially profiled in public spaces. BS v Spain, concerning racist police violence toward a Black female sex worker, illustrated how race intersects with gender to uniquely harm Black female sex workers when they come in contact with police. Though BS v Spain is about racist police violence, it also concerns racial profiling following an identity check (§7). This intersection of race and gender is important to acknowledge as it shows that racial profiling occurs to racialised people of different genders. The difference can sometimes lie in the settings where such racial profiling potentially takes place. BS v Spain shows that for racialised women, racial profiling can also occur because of precarious employment such as sex work.

Furthermore, it is possible that future racial profiling cases concern applicants who were profiled due to harmful religious stereotypes. The intersection of race and religious discrimination would then be important to acknowledge because (perceived) religion can be used to racialize people. Wearing certain religious signs or clothes can lead to people being racialised and subjected to racial profiling. Thus, racism and religious discrimination often intersect. Moreover, acknowledging the intersection of religion, race and gender in racial profiling would be important to recognise the different reasons that lead to it. For example, it is possible that Muslim women are profiled because they wear a hijab, whereas other reasons may underlie the profiling of Muslim men.

Conclusion

Wa Baile is an improvement of the ECtHR’s growing racial profiling case law because it demonstrates an appreciation of the systemic nature of racial profiling demonstrated by the ECtHR’s shift from requiring applicants to prove individual racist motives as in previous cases. While Wa Baile is an improvement in this respect, it is still uncertain whether the ECtHR’s reasoning will extend to future racial profiling cases as Wa Baile did have a significant factual difference from previous cases. Pending case Seydi and Others v France will prove how sustainable the ECtHR’s reasoning is.

Additionally, the ECtHR is yet to adopt an intersectional definition of racial profiling. In Wa Baile, the ECtHR mainly conceptualised racial profiling as a single-categorical issue. Considering the prevalence of racial profiling across Europe, developing an intersectional conceptualisation of racial profiling is necessary to fully grasp how it manifests itself, and to ensure that future victims’ entire experiences are acknowledged.