Basu v. Germany, No. 215/19, ECtHR (Third Section), 18 October 2022

Ethnic profiling by police during identity check on a train. Violation of Article 14 read in conjunction with Article 8 ECHR.

Art. 8 ECHR
Art. 14 ECHR

1. Not every identity check of persons belonging to an ethnic minority attains the necessary threshold of severity so as to fall within the scope of the right to respect for private life (Article 8 ECHR). That threshold is only attained if the person concerned has an arguable claim that he or she may have been targeted on account of specific physical or ethnic characteristics.

2. In cases where it is claimed that a person may have been subjected to an identity check by the police because of physical or ethnic characteristics and such act falls into the ambit of Article 8 ECHR, national authorities have a duty under Article 14 ECHR to carry out effective and independent investigations into whether the identity check was racially motivated. This is crucial to protect those affected from racial discrimination and stigmatization and to prevent the spread of xenophobic attitudes.

(In the instant case, the applicant, a German national of Indian origins, complained that he had been subjected to an identity check by the police only because of his skin colour and that domestic courts had refused to examine the merits of his allegations. The European Court held that those events constituted a violation of Article 14 ECHR read in conjunction with Article 8 ECHR, since national authorities’ investigations into the alleged facts could not be seen as effective and independent. This also implied that Court was unable to find a substantive violation concerning the police’ racial motive, since the investigations did not offer enough material to rule on this specific aspect).