Wa Baile c. Suisse: A victory against racial profiling?

Mohamed Wa Baile, a Swiss citizen of Kenyan origin, was stopped by the municipal police in the Zurich train station when he was on his way to work. According to the police officer in charge, he stopped Mr Wa Baile because of his behaviour, which appeared suspicious to him as Mr Wa Baile looked away when he realised that he was a police officer. There were thus grounds to suspect him of an offence against the immigration law. Mr Wa Baile refused to produce an ID card, arguing that he was tired of being stopped because of the colour of his skin. His appeal against the fine for failing to comply with a police order was turned down by the criminal courts. Mr Wa Baile also initiated administrative proceedings, resulting in a decision of the cantonal administrative court finding that the identity check had not been justified under the cantonal police act. However, the court refused to rule on his discrimination claim.

On 20 February 2024, a 7-judge Chamber of the European Court of Human Rights (ECtHR) ruled in Wa Baile c. Suisse (available only in French) that the identity check of Mohamed Wa Baile amounted to racial profiling in violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to private life) of the ECHR. This marks the first time that the Court has found a substantive violation of Article 14 in an alleged case of racial profiling. The judgment, I will argue, has the potential to act as a catalyst for the implementation of measures against racial profiling throughout Europe.

Racial profiling in Europe

Around the early 2000s, it became apparent that racial profiling in law enforcement is a widespread, systemic problem – not just in the United States, where cases of racial profiling had already attracted attention earlier, but also in Europe. Since then, international and regional human rights bodies such as the UN Committee on the Elimination of Racial Discrimination (CERD), the UN Special Rapporteur on Racism, the UN Special Rapporteur on Countering Terrorism, the Office of the High Commissioner for Human Rights (OHCHR), the OSCE High Commissioner on National Minorities, and the European Commission against Racism and Intolerance (ECRI) have produced a plethora of recommendations and guidelines on preventing racial profiling in law enforcement.

These recommendations typically first define what they mean by “racial profiling”. ECRI’s Policy Recommendation on Combating Racism and Racial Discrimination in Policing, for example, defines the term as “[t]he use by the police, with no objective and reasonable justification, of grounds such as race, colour, language, religion, nationality or national or ethnic origin in control, surveillance or investigation activities” (para. 1).

These documents then go on to set forth a range of measures that states should adopt to counter racial profiling. These measures include:

• adoption of laws and policies that explicitly prohibit racial profiling;

• establishment of independent complaints mechanisms to ensure effective investigations into alleged cases of racial profiling;

• collection of data on law enforcement practices that is disaggregated by “race” and ethnicity;

• recruitment strategies that promote a diverse workforce;

• training of law enforcement officers.

However, most European states have done little to implement these recommendations. In 2019, the Council of Europe’s Commissioner for Human Rights stated that racial profiling remained widespread in Europe, despite growing awareness of the problem. Surveys conducted by the EU Fundamental Rights Agency in 2018, 2021, and 2023 confirmed this finding.

Furthermore, it has been very rare for national courts or international institutions to condemn law enforcement agencies for racial profiling. One of these rare cases is that of Williams Lecraft v. Spain before the UN Human Rights Committee. The Committee’s ruling may be regarded as a precedent insofar as it was the first time that an international human rights body found a violation of the prohibition of discrimination in an alleged case of racial profiling. However, Williams Lecraft is also exceptional in that the police officer who had stopped Ms Williams Lecraft had openly admitted that he had been given orders to carry out identity checks of “coloured people” in particular (paras 2.1, 7.4). In the vast majority of cases, in contrast, it is extremely difficult for the persons concerned to prove that they were stopped because of their perceived “race” or ethnicity. Complaints of racial profiling typically fail because of a lack of evidence.

Previous cases before the ECtHR

Given the scale and the persistence of the problem in Europe, it is surprising that it took the ECtHR until 2019 before it even used the term “racial” or “ethnic profiling” for the first time. In Lingurar v. Romania it condemned a police operation targeting a Roma community as inadmissible “ethnic profiling” (para. 76). However, Lingurar did not concern that law enforcement context where racial or ethnic profiling is resorted to most often, namely routine identity checks in public places.

It took three more years before the ECtHR, in two judgments described by Julie Ringelheim on these pages as “disappointing”, dealt with these types of cases. Muhammad v. Spain concerned an identity check of a Pakistani national on a street in Barcelona. Here, the Court held, with a majority of four to three, that it was not sufficient to show that racial profiling is widespread in Spain and that the applicant was the only person stopped by the police to establish a violation of the prohibition of discrimination.

On the same day, the ECtHR decided Basu v. Germany, concerning an identity check of a German national of Indian origin on a train. It found a procedural violation of Article 14 ECHR because the authorities had failed to carry out an effective investigation into the applicant’s allegation of racial discrimination. At the same time, however, the Court concluded that, owing to the lack of such an investigation, it was “unable to make a finding” whether there had been a substantive violation of the prohibition of discrimination (para. 38). This conclusion was heavily criticized by Judge Pavli as providing “perverse incentives” to national authorities to sweep cases of racial profiling under the carpet. Where an arguable claim of racial profiling has been made, Judge Pavli argued in his partly dissenting opinion, the burden of proof should be reversed: Where only the state had the ability to establish the relevant facts, it was up to the authorities to show that the identity check had an objective and reasonable basis. With this, Judge Pavli had already sketched out the lines of reasoning for the judgment in Wa Baile where he was also to sit in the Chamber.

Procedural aspect

Where an arguable claim of discrimination is lodged with the national authorities, they have an obligation under Article 14 ECHR to examine that claim effectively. Unlike in Basu, the identity check in Wa Baile had been reviewed by several domestic courts. Yet even the cantonal administrative court, which found the identity check to have been unlawful, failed to address the core of the applicant’s claim, namely that he had been stopped because of his skin colour. The ECtHR is therefore right to conclude that the procedural limb of Article 14 was violated. The point of inferring procedural obligations from the substantive guarantees of the ECHR is, after all, to ensure that compliance with the respective Convention guarantee (and not just with national law) may be reviewed.

Substantive aspect

While the finding of a procedural violation of Article 14 ECHR is thus only logical, not many would have expected the ECtHR to unanimously rule – only one and a half years after Muhammad and Basu – that also the substantive limb of Article 14 was violated. In this regard, the Chamber essentially adopts the approach proposed by Judge Pavli in Basu for circumventing the evidentiary hurdles in racial profiling cases and reverses the burden of proof. It gives three reasons for doing so.

First, it interprets Article 14 ECHR in the light of the recommendations of other international bodies mentioned above and points out that Switzerland had failed to implement them. The resulting lack of an adequate legal and administrative framework was liable to give rise to discriminatory identity checks (para. 130). Second, the ECtHR refers to studies of various human rights bodies and NGOs documenting cases of racial profiling in Switzerland (para. 135). Third, it points to the fact that the cantonal administrative court had held that there were no objective grounds for stopping the applicant (para. 134).

The first two reasons, which had already been invoked by Judges Krenc and Pavli in their dissenting opinions in Muhammad and Basu, reflect a recognition by the ECtHR that racial profiling is not simply the consequence of individual police officers’ attitudes and decisions but rather part of a wider institutional and social problem. What, unfortunately, is not clear from the Court’s reasoning is the weight to be attached to these two reasons as compared to the third one. Do all three elements have to be present? Is the third reason the decisive one, whereas the others could be replaced by other evidentiary elements? Or could, on the contrary, a combination of other elements take the place of the third reason?

As a result of the reversed burden of proof, it would now have been up to Switzerland to provide a convincing explanation of why Mr Wa Baile had been stopped. Switzerland, the Court held, failed to discharge this burden: The authorities could neither produce figures or information demonstrating that also other persons were stopped in Zurich that day (para. 134) nor overall statistical figures on identity checks (para. 135).

A leading case?

The ECtHR treated Wa Baile as an “impact case” (i.e., a case that addresses “key issues of relevance for the State concerned or for the Convention system generally”) and therefore processed it more expeditiously. Once the judgment had been handed down, it was hailed as “a key decision on ethnic profiling” and “a legal victory in the drive to end racist police tactics”.

Whether Wa Baile can really be regarded as a leading case remains to be seen, however. Much will depend on the weight that the Court will attach in future cases to its third reason for reversing the burden of proof (i.e., that a domestic court has held that there were no objective grounds for the identity check in question). If it regards this element as essential, the Wa Baile judgment will have hardly any effects: It will remain a rare exception that, in a case of alleged racial profiling, a national court will conclude that the identity check was not objectively justified yet still not discriminatory.

If, in contrast, the ECtHR considers this third element as not essential, Wa Baile could become a central component in the fight against racial profiling across Europe. This is because the other two reasons put forward by the Court for reversing the burden of proof demonstrate its acceptance that racial profiling is a structural problem: If a state lacks a sufficient legal and administrative framework for preventing racially discriminatory police practices and there is evidence of such practices in that state, the ECtHR will infer a presumption of discrimination.

Furthermore, by relying heavily on the recommendations and findings of other international human rights organisations regarding racial profiling in its assessment of these two elements, the Court strengthens their legal status. Even though these recommendations are, by themselves, not binding, any state that fails to implement them will now risk condemnation by the ECtHR. At first glance, this move of the Chamber may seem innovative, or even bold. However, it is in line with the ECtHR’s previous case law. The Court has repeatedly made it clear that it is also prepared to rely on instruments that are not legally binding when interpreting the text of the Convention. In that sense, Wa Baile is also a paradigmatic illustration of how non-binding standards developed by international institutions may morph into “hard law”.