CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 18 octobre 2022

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color:#0069d6 }   THIRD SECTION CASE OF BASU v. GERMANY (Application no. 215/19)     JUDGMENT   Art 14 (+ Art 8) • Discrimination • Private life • Lack of independent effective investigation into arguable allegations of racial profiling by police during identity check on train • Necessary threshold of severity attained for check to fall within ambit of Art   8 • Duty to investigate in order to protect from stigmatisation persons concerned and to prevent spread of xenophobic attitudes   STRASBOURG 18 October 2022   FINAL   18/01/2023     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Basu v. Germany, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Georges Ravarani, President ,   Georgios A. Serghides,   María Elósegui,   Darian Pavli,   Anja Seibert-Fohr,   Andreas Zünd,   Frédéric Krenc, judges , and Milan Blaško, Section Registrar , Having regard to: the application (no.   215/19) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Biplab Basu (“the applicant”), on 19 December 2018; the decision to give notice of the application to the German Government (“the Government”); the parties’ observations; Having deliberated in private on 20 September 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The application concerns a check of the applicant’s identity by the police on a train. The applicant claimed that the identity check had been carried out because of his dark skin colour, and thus in a discriminatory manner, and that the authorities had failed to investigate sufficiently his allegations of racial profiling. The case raises an issue under Article 14 taken in conjunction with Article 8 and under Article 13 of the Convention. THE FACTS 2.     The applicant was born in 1955 and lives in Berlin. He was represented by Ms M.J. Burkhardt, a lawyer practising in Berlin. 3.     The Government were represented by one of their Agents, Mr   H. ‑ J.   Behrens, of the Federal Ministry of Justice and Consumer Protection. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5.     On 26 July 2012 two police officers carried out an identity check on the applicant, a German national of Indian origin, and his daughter, on a train which had just passed through the border from the Czech Republic to Germany. 6.     On 19 July 2013 the applicant brought an action in the Dresden Administrative Court for a declaration that the identity check had been unlawful. He submitted that section 23(1)(3) of the Federal Police Act ( Bundespolizeigesetz – see paragraph 10 below) was not a valid legal basis for the interference with his right to self-determination in the sphere of information, as there had not been a valid reason for carrying out the identity check on him. Among the persons present in different compartments of the train carriage, the two police officers had only checked the applicant’s identity papers and those of his daughter. When he had asked for the reasons for the identity check, one of the officers had explained to him that they were carrying out a random check. He had later added that cigarettes were frequently smuggled on that train, but confirmed that there had not been any specific suspicion in respect of the applicant in this regard. The applicant argued, however, that he and his daughter had been singled out as they were the only persons with dark skin colour, and this was discriminatory. The defendant State considered the identity check to be lawful under section   23(1)(3) of the Federal Police Act and submitted that the applicant and his daughter had not been the only persons whose identity had been checked by the police on the train. 7 .     On 20 May 2015 the Dresden Administrative Court, having heard only the applicant (and not his daughter or the police officer who had carried out the check, who had been present during the identity check as witnesses), dismissed the action as inadmissible. It found that the applicant did not have a legitimate interest in a judgment on the lawfulness of the identity check under section   23(1)(3) of the Federal Police Act after the act in question had ended. 8 .     On 17 November 2015 the Saxony Administrative Court of Appeal, endorsing the reasons given by the Administrative Court, refused to grant the applicant leave to appeal. It confirmed that the applicant did not have the necessary legitimate interest in a finding of the unlawfulness of the act in question after its termination. The identity check, without any data being stored, constituted only a minor interference with the applicant’s right to self-determination in the sphere of information. Nor did the applicant have any interest in terms of rehabilitation. Such a check, in particular close to borders, was not unusual or stigmatising. The check had lasted only a few minutes and had been carried out by the police in an objective manner. The explanations which the police, in the applicant’s own submission, had given for the check had not disclosed any discriminatory practice either. It did not appear that the act had even been noticed by anyone other than the applicant’s daughter. There were no lasting consequences as the applicant, who had stated that he had stopped travelling by train after the incident, had started travelling by train again. The applicant – who had argued that numerous similar actions in the past years showed that German citizens with dark skin colour were subjected to checks more often by the police than citizens with white skin – had further not substantiated his allegation that he risked being subjected to an identity check in similar circumstances again. As the action was inadmissible for lack of a legitimate interest in a decision on the lawfulness of the identity check, the court did not need to decide whether the applicant had been treated in a discriminatory manner by that check. 9.     On 19 June 2018 the Federal Constitutional Court declined to consider a constitutional complaint by the applicant (file no. 1 BvR 3196/15), in which he alleged a breach of his right to effective judicial protection, taken together with his right to self-determination in the sphere of information, his right to freedom of movement and the prohibition on discrimination. RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LEGAL FRAMEWORK 10 .     Section 23 of the Federal Police Act, in so far as relevant, reads as follows: “Establishment of identity ... (1)     The federal police may establish the identity of a person ... 3.     within the border area, up to thirty kilometres behind the border, to prevent or stop unlawful entry into the federal territory or for the prevention of the offences specified in section ...” ... (3)     The federal police may take the measures necessary to establish the identity of a person. In particular, they may stop the person concerned, ask for his or her personal data and request that the person concerned hand over identity documents for the purposes of identity checks ...” INTERNATIONAL LEGAL FRAMEWORK AND PRACTICE United Nations Human Rights Committee 11 .     The United Nations (UN) Human Rights Committee dealt with alleged discrimination resulting from an identity check in its Views of 27 July 2009 on Communication No. 1493/2006 submitted by Rosalind Williams Lecraft against Spain (CCPR/C/96/D/1493/2006). Finding a breach of the prohibition of discrimination under Article 26, read in conjunction with Article 2(3), of the International Covenant on Civil and Political Rights in the circumstances of the case, the Committee stated the following: “7.2     The Committee must decide whether being subjected to an identity check by the police means that the author suffered racial discrimination. The Committee considers that identity checks carried out for public security or crime prevention purposes in general, or to control illegal immigration, serve a legitimate purpose. However, when the authorities carry out such checks, the physical or ethnic characteristics of the persons subjected thereto should not by themselves be deemed indicative of their possible illegal presence in the country. Nor should they be carried out in such a way as to target only persons with specific physical or ethnic characteristics. To act otherwise would not only negatively affect the dignity of the persons concerned, but would also contribute to the spread of xenophobic attitudes in the public at large and would run counter to an effective policy aimed at combating racial discrimination. ... 7.4     In the present case, it can be inferred from the file that the identity check in question was of a general nature. The author alleges that no one else in her immediate vicinity had their identity checked and that the police officer who stopped and questioned her referred to her physical features in order to explain why she, and no one else in the vicinity, was being asked to show her identity papers. These claims were not refuted by the administrative and judicial bodies before which the author submitted her case, or in the proceedings before the Committee. In the circumstances, the Committee can only conclude that the author was singled out for the identity check in question solely on the ground of her racial characteristics and that these characteristics were the decisive factor in her being suspected of unlawful conduct. Furthermore, the Committee recalls its jurisprudence that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant. In the case under consideration, the Committee is of the view that the criteria of reasonableness and objectivity were not met ...” European Commission against Racism and Intolerance 12.     The Council of Europe’s European Commission against Racism and Intolerance (ECRI) adopted General Policy Recommendation No. 11 on combating racism and racial discrimination in policing on 29 June 2007 (CRI(2007)39). It defines racial profiling as follows: “1.     ... For the purposes of this Recommendation, racial profiling shall mean: The 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;” 13 .     ECRI recommended that the governments of member States, inter alia : “9.     ... ensure effective investigations into alleged cases of racial discrimination or racially-motivated misconduct by the police and ensure as necessary that the perpetrators of these acts are adequately punished; 10.     ... provide for a body, independent of the police and prosecution authorities, entrusted with the investigation of alleged cases of racial discrimination and racially ‑ motivated misconduct by the police; ...” 14 .     The Explanatory Memorandum to the Recommendation, regarding paragraph 1 of the Recommendation, reads, in so far as relevant: “34. iii)     ... Research has shown that racial profiling has considerably negative effects. Racial profiling generates a feeling of humiliation and injustice among certain groups of persons and results in their stigmatisation and alienation as well as in the deterioration of relations between these groups and the police, due to loss of trust in the latter ...” 15.     Paragraph 11 of ECRI General Policy Recommendation No. 7 on national legislation to combat racism and racial discrimination, adopted on 13   December 2002, in the version applicable at the relevant time, reads as follows: “The law should provide that, if persons who consider themselves wronged because of a discriminatory act establish before a court or any other competent authority facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no discrimination.” EUROPEAN UNION LAW 16.     European Union Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L   180, p.   22) provides, in so far as relevant: Recital 21 “The rules on the burden of proof must be adapted when there is a prima facie case of discrimination and, for the principle of equal treatment to be applied effectively, the burden of proof must shift back to the respondent when evidence of such discrimination is brought.” Article 8 Burden of proof “(1)     Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment. ...” THE LAW ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION 17.     The applicant complained that he had been subjected to an identity check only because of his skin colour, and that the domestic courts had refused to investigate that breach of the prohibition on discrimination. He relied on Article 14 of the Convention, which provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 18.     The Court, having the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles of the Convention that are different from those relied upon by the applicant (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018), considers that the applicant’s complaint falls to be examined under Article 14 read in conjunction with Article 8 of the Convention. The latter provision reads as follows: “1.     Everyone has the right to respect for his private ... life, ... 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Admissibility The parties’ submissions 19.     The Government argued that a mere identity check did not fall within the ambit of the right to respect for private life under Article 8, which was thus inapplicable. They also argued that there were no indications that the applicant had been the victim of racial profiling when the identity check had been carried out by the police. 20.     The applicant submitted that he had been subjected to an identity check only because of his dark skin colour. That discriminatory treatment had amounted to a serious breach of his rights. In order to avoid similar stigmatisation, he had stopped travelling by train for several months. The Court’s assessment 21 .     The Court reiterates that Article 8 protects a right to identity and personal development, and the right to establish relationships with other human beings and the outside world. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see, inter alia , Gillan and Quinton v.   the United Kingdom , no. 4158/05, § 61, ECHR 2010). 22.     As to whether an identity check by the police falls within the scope of the private life of the person subjected to that check, the former Commission considered that the obligation to carry an identity card and to show it to the police whenever requested to do so did not as such, in the absence of any special circumstances, constitute an interference with a person’s private life (see Reyntjens v. Belgium , no. 16810/90, Commission decision of 9   September 1992, Decisions and Reports 73, p.   136, at p. 152). The Court has found that the use of coercive powers conferred by legislation to require an individual to submit to an identity check and a detailed search of his person, his clothing and his personal belongings amounted to an interference with the right to respect for private life (see Gillan and Quinton , cited above, § 63, and Vig v.   Hungary , no. 59648/13, § 49, 14 January 2021). The public nature of the search may, in certain cases, compound the seriousness of the interference because of an element of humiliation and embarrassment (see Gillan and Quinton , cited above, § 63). 23 .     In certain contexts, the Court has considered it necessary to specifically examine whether the effects of the act in question attained a threshold of severity – that is, had serious negative effects on the individual’s private life – in order for Article 8 to be applicable (see, in particular, Denisov v. Ukraine [GC], no. 76639/11, §§ 110-13, 25 September 2018). It has ruled, for instance, that an attack on a person’s reputation must attain a certain level of seriousness and be carried out in a manner causing prejudice to the personal enjoyment of the right to respect for private life in order for Article 8 to come into play (see, inter alia , Bédat v. Switzerland [GC], no. 56925/08, § 72, 29   March 2016, and Denisov , cited above, § 112, with further references). In such circumstances, the Court considered that it was for an applicant to submit convincing evidence showing that the threshold of severity had been attained. Applicants had to identify and explain the concrete repercussions on their private life and the nature and extent of their suffering, and to substantiate such allegations in a proper way (see Denisov , cited above, §   114). 24.     The Court further reiterates that racial discrimination is a particularly egregious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction (see, in the context of Article 14, Timishev v. Russia , nos. 55762/00 and 55974/00, § 56, ECHR 2005 ‑ XII, and Sejdić and Finci v. Bosnia and Herzegovina [GC], nos.   27996/06 and 34836/06, § 43, ECHR 2009). 25.     Having regard to these principles, the Court considers that not every identity check of a person belonging to an ethnic minority attains the necessary threshold of severity to fall within the ambit of the right to respect for that person’s private life. 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. Such an arguable claim may notably exist where the person concerned submitted that he or she (or persons having the same characteristics) had been the only person(s) subjected to a check and where no other grounds for the check were apparent or where any explanations of the officers carrying out the check disclose specific physical or ethnic motives for the check. The Court further observes in this connection that the public nature of the check may have an effect on a person’s reputation (see paragraph 23 above) and self-respect. 26.     The Court notes that the applicant was subjected to an identity check by the police in public, on a train. In the applicant’s submission, that check had only been carried out because of his dark skin colour and thus on racial grounds. He substantiated that allegation by observing that of the persons present in different compartments of the train carriage, he and his daughter had been the only persons with dark skin colour and the only persons who had been subjected to the check. Furthermore, the explanations given by the police officer who had carried out the check had not disclosed any other objective grounds for targeting the applicant. The Court therefore cannot agree with the Government’s argument that in those circumstances, there was no arguable claim that the applicant had been targeted on account of specific physical or ethnic characteristics. The applicant further argued that the identity check under those conditions had had serious negative effects on his private life, as he had felt so stigmatised and humiliated that he had stopped travelling by train for several months. 27.     The Court considers that the applicant substantiated his argument that the identity check by the police under those special circumstances had had sufficiently serious consequences for his right to respect for his private life. The identity check in question therefore falls within the ambit of Article 8. Accordingly, Article   14 is applicable. 28.     The Court further notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. Merits The parties’ submissions 29.     In the applicant’s submission, the fact that he had been subjected to a check by the police only because of his skin colour had amounted to a breach of Article 14. He argued that he and his daughter had been the only passengers with dark skin colour and the only persons whose identity had been checked on the train. The police officers had explained that they were carrying out a random check, without being able to explain the criteria for choosing the persons to undergo the check. Despite the fact that he had substantiated his claim that the identity check had amounted to discrimination and thus a serious breach of his rights, the domestic courts had failed to examine his complaint on the merits and had refused to establish the relevant facts, in particular by hearing as witnesses his daughter and the two police officers who had carried out the check. 30.     The Government accepted that, assuming that there had been an interference with Article 8, the State had been under a duty to investigate the allegations of racial profiling in view of the serious consequences for the persons concerned and the fact that only the State had the ability to establish the relevant facts. However, this duty had been complied with by the federal police. The Government submitted that the Pirna office of the federal police   – that is, the superior police authority to the Dresden office of the federal police, for which Police Officer P., who had conducted the checks, worked – had carried out internal investigations into the applicant’s allegations. P. had stated in the context of those investigations that the applicant had not been the only person whose identity had been checked during the police’s randomised identity check of several passengers on the train. Furthermore, having questioned P. and having investigated all the police operations between January 2011 and June 2013 in which P. had participated, and the training courses he had followed, the investigations had not found any indications of racist motivation on the part of P. An examination by an independent authority, namely the courts, had not been carried out, but the administrative courts had given sufficient reasons for considering the applicant’s action inadmissible for lack of a legitimate interest. The Court’s assessment 31.     As to whether States are under an obligation to investigate possible racist motives of a State agent’s act in the context of an alleged violation of Article   14 taken in conjunction with Article 8 of the Convention, the Court observes at the outset that this duty was not contested by the Government. 32.     The Court reiterates that, generally, duties to investigate serve to ensure accountability through appropriate criminal, civil, administrative and professional avenues. In this connection, it is important to reiterate that the State enjoys a margin of appreciation in determining the manner in which to organise its system to ensure compliance with the Convention (compare, mutatis mutandis , F.O. v. Croatia , no. 29555/13, § 91, 22 April 2021). It has previously recognised a duty to investigate in the context of Article 8 in certain circumstances in respect of acts of private individuals. In relation to the disclosure of personal data by non-State actors, for instance, it has found that the positive obligation inherent in effective respect for private life under Article 8 implies an obligation to carry out effective inquiries in order to rectify the matter to the extent possible (compare Craxi v. Italy (no. 2) , no.   25337/94, §§ 74-75, 17 July 2003). Moreover, the Court has not excluded the possibility that the State’s positive obligation under Article   8 to safeguard an individual’s integrity may extend to questions relating to the effectiveness of an investigation (compare Moldovan and Others v.   Romania (no.   2) , nos.   41138/98 and 64320/01, § 96, ECHR 2005 ‑ VII, and Burlya and Others v.   Ukraine , no. 3289/10, §§ 161 and 169-70, 6 November 2018). It finds that an obligation to investigate should even less be excluded in the context of Article   8 in relation to acts of State agents if the applicant makes an arguable claim that he has been targeted on account of specific physical or ethnic characteristics. 33 .     The Court reiterates that it has recognised that a duty of the authorities to investigate possible racist attitudes may be implicit in their responsibilities under Article 14 of the Convention in certain circumstances. It has notably found in the context of alleged violations of Article 14 taken in conjunction with Article 3 that State authorities have an obligation to take all reasonable measures to identify whether there were racist motives and to establish whether or not ethnic hatred or prejudice may have played a role in the events. The authorities must do what is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of racially induced violence (see B.S. v. Spain , no. 47159/08, § 58, 24 July 2012; Boacă and Others v. Romania , no. 40355/11, §§ 105-06, 12 January 2016; Burlya and Others , cited above, § 128; and Sabalić v. Croatia , no.   50231/13, §§ 94 and 98, 14 January 2021, with further references). For an investigation to be effective, the institutions and persons responsible for carrying it out must be independent of those targeted by it. This means not only a lack of any hierarchical or institutional connection but also practical independence (see Burlya and Others , cited above, § 127). The authorities’ responsibilities under Article   14 to secure respect without discrimination for a fundamental value may also come into play when possible racist attitudes resulting in the stigmatisation of the person concerned are at issue in the context of Article 8. 34.     In the context of an arguable claim of racial discrimination, the Court further reiterates that racial discrimination as prohibited by Article   14 is a particularly egregious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction (see the case-law cited in paragraph   24 above). It also refers in this context to ECRI’s finding that racial profiling, in particular, results in the stigmatisation and alienation of the persons concerned by it (see paragraph   14 above). ECRI accordingly emphasised the importance for States to ensure effective investigations into alleged cases of racial discrimination by the police (see paragraph 13 above). Moreover, as revealed by the UN Human Rights Committee, targeting only persons with specific physical or ethnic characteristics in identity checks negatively affects the dignity of the persons concerned and also contributes to the spread of xenophobic attitudes (see paragraph 11 above). 35.     In the light of the above elements, the Court considers that once there is an arguable claim that the person concerned may have been targeted on account of racial characteristics and such acts, under the threshold conditions set out above (see paragraphs 21 et seq. above), fall within the ambit of Article   8, the authorities’ duty to investigate the existence of a possible link between racist attitudes and a State agent’s act is to be considered implicit in their responsibilities under Article 14 of the Convention, including when examined in conjunction with Article 8. This is essential in order for the protection against racial discrimination not to become theoretical and illusory in the context of non-violent acts falling to be examined under Article 8, to ensure protection from stigmatisation of the persons concerned and to prevent the spread of xenophobic attitudes. 36.     In determining whether, in the present case, the State authorities complied with their obligation to take all reasonable measures to identify whether there were racist motives for the identity check, the Court observes that in the Government’s submission, the superior police authority to the Dresden office of the federal police – for which Police Officer   P., who had conducted the check, worked – had carried out an internal investigation into the incident. However, in view of the hierarchical and institutional connections between the investigating authority and the State agent who carried out the act in question, the investigations in this regard cannot be considered to be independent (compare paragraph 33 above). 37.     As for the proceedings before the administrative courts, the Court notes that those courts declined to examine the merits of the applicant’s complaint of having been treated in a discriminatory manner on account of the identity check. Despite an arguable claim that the applicant may have been the victim of racial profiling, they failed to take the necessary evidence and, in particular, failed to hear the witnesses who had been present during the identity check (see paragraph 7 above). They dismissed the applicant’s action on formal grounds, taking the view that he did not have a legitimate interest in a decision on the lawfulness of his identity check (see paragraphs   7 and 8 above). 38.     In these circumstances, the Court must conclude that the State authorities failed to comply with their duty to take all reasonable measures to ascertain through an independent body whether or not a discriminatory attitude had played a role in the identity check, and that they therefore failed to carry out an effective investigation in this regard. Accordingly, the Court is unable to make a finding as to whether the applicant was subjected to the identity check on account of his ethnic origin. 39.     There has accordingly been a violation of Article 14 taken in conjunction with Article 8 of the Convention. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 40.     The applicant further complained under Article 13 of the Convention that the domestic courts had refused to decide the merits of his complaint about the identity check, which he considered discriminatory and in breach of his right to freedom of movement. Article 13 provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 41.     The Court, having regard to its findings above under Article 14 taken in conjunction with Article 8, considers that the applicant had an arguable complaint under those provisions of the Convention and that Article 13 of the Convention is thus applicable. It further notes that the applicant’s complaint under Article 13 is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. 42.     The Court observes that it has found a breach of Article 14 taken in conjunction with Article 8, essentially because the administrative courts declined to examine the merits of the applicant’s complaint of having been treated in a discriminatory manner on account of the identity check, which is also the gist of the applicant’s complaint under Article 13. It therefore considers that the latter complaint does not raise a separate issue to be examined in addition to its findings under Article 14 taken in conjunction with Article 8 in the circumstances of the present case. OTHER ALLEGED VIOLATION OF THE CONVENTION 43.     Lastly, the applicant complained that his right to freedom of movement under Article 2 of Protocol No. 4 to the Convention had been violated in that there had not been a sufficient legal basis for the identity check. 44.     In the light of all the material in its possession and in so far as the matter complained of is within its competence, the Court finds no appearance of a violation of Article 2 of Protocol No. 4 arising from this complaint. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. APPLICATION OF ARTICLE   41 OF THE CONVENTION 45.     Article   41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 46.     The applicant did not submit any claims for just satisfaction under Article 41 of the Convention. The Court therefore does not make an award in this respect. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the complaints under Article 14 taken in conjunction with Article 8 of the Convention and under Article   13 of the Convention admissible and the remainder of the application inadmissible; Holds that there has been a violation of Article 14 taken in conjunction with Article   8 of the Convention; Holds that there is no need to examine the complaint under Article   13 of the Convention. Done in English, and notified in writing on 18 October 2022, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Milan Blaško   Georges Ravarani   Registrar   President   In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Pavli is annexed to this judgment. G.R. M.B.   PARTLY DISSENTING OPINION OF JUDGE PAVLI 1.     I have voted in support of the unanimous holdings that Article 14, taken in conjunction with Article 8 of the Convention, is applicable in this case; and that there has been a procedural violation of that provision on account of the flawed investigation into the applicant’s allegations of racial discrimination. I also wish to recognise the ground-breaking nature of this judgment as, together with the judgment in Muhammad v. Spain (no. 34085/17, 18   October 2022) adopted on the same day, these are the first cases in which the Court has considered allegations of racial profiling in police identity checks in a public space. 2.     I am writing separately, however, as I do not concur with the majority’s summary conclusion in the last sentence of paragraph 38 of the judgment that, owing to the respondent State’s failure to conduct an effective investigation, “the Court is unable to make a finding” as to whether there has been a substantive violation of Article 14. As the judgment includes a single operative provision (the second) on the merits of the Article 14 claims, without specifying whether the violation found is of a procedural or a substantive nature, I have been unable to formally vote against the effective finding of no substantive violation of that provision, this being the object of my partial dissent. Direct discrimination and the reversal of the burden of proof: general principles 3.     The Court has concluded under its admissibility analysis that the applicant put forward, at both the national level and in the Strasbourg proceedings, “an arguable claim that [he] had been targeted on account of specific physical [1] or ethnic characteristics”. It reached this conclusion by relying on the uncontested allegation that the applicant and his daughter, being of dark skin, were the only individuals who had been subjected to the identity check in their part of the train; and that the police officer who had performed the check “had not disclosed any other objective grounds for targeting the applicant” (see paragraph 26 of the judgment). 4.     This conclusion begs the following question: in the presence of an arguable claim of direct discrimination on racial or ethnic grounds by a State agent, why did the majority not shift the burden onto the respondent to prove that the differentiated treatment was in fact in compliance with Article 14? I find that the judgment provides no persuasive answer to this question in effectively dismissing the applicant’s claim that there has been a substantive violation of the anti-discrimination provision, in addition to the procedural violation. After all, it is a central tenet of our Article 14 jurisprudence that, as a rule, it is for the applicant to show a difference in treatment and for the Government to show that it was justified (see Timishev v. Russia , nos.   55762/00 and 55974/00, § 57, 13 December 2015; D.H. and Others v.   the Czech Republic , no. 57325/00, § 177, 13 November 2007; and Di Trizio v.   Switzerland , no.   7186/09, § 84, 2 February 2016). It is the very function and purpose of rules on the allocation of the burden of proof to allow the Court to reach substantive conclusions in the absence of complete certainty about the facts of the case or other relevant considerations. Even the respondent Government have conceded that “only the State had the ability to establish the relevant facts” (see paragraph 30 of the judgment). It is therefore not necessary or appropriate to regard the investigative failures at the national level as a factor that would objectively prevent the Court from reaching conclusions on the substantive component. Among other reasons, this may provide perverse incentives to any national authorities which may not be inclined to “lift the lid” on either isolated or, worse still, systemic incidents of racial profiling by State agents. It also makes it nigh impossible for victims of racial profiling to succeed in a claim of a substantive violation in such circumstances. 5.     In addition to our own jurisprudence, principles on the reversal of the burden of proof in the discrimination context are also firmly established in European law more generally, including European Union (EU) legislation and the standards of the Council of Europe’s own European Commission against Racism and Intolerance (ECRI). These standards are cited in paragraphs   15 ‑ 16 of the judgment, but it is not clear to what purpose. They state the relevant requirements in almost identical terms: when individuals establish “ facts from which it may be presumed that there has been direct or indirect discrimination , it shall be for the respondent to prove that there has been no breach of the principle of equal treatment” (see Article 8 of EU Directive 2000/43/EC, emphasis added; see also ECRI General Policy Recommendation No. 7, paragraph 11). 6.     Our jurisprudence to date has for the most part looked at conduct of State agents potentially motivated by racist or other discriminatory animus in the context of Article 3 of the Convention, involving, for example, acts of police brutality (see paragraph 33 of the judgment and the cases cited therein). It is true that in some of these cases the Court has chosen not to shift the burden of proof onto the respondents despite the failure of the national authorities to carry out an effective investigation into the allegations of discrimination – on the basis that such an approach would amount to requiring the respondent Government to prove the absence of a particular subjective attitude (see Nachova and Others v. Bulgaria , nos. 43577/98 and 43579/98, § 157, 6   July 2005). 7.     The present case, however, sits in a very different context. Firstly, unlike unjustified police violence, which is illegal and can be motivated by many different factors, an identity check of train passengers is presumably legal and ought to be based on sound and objective law-enforcement standards. Secondly, discrimination in this context may not be driven necessarily by a police officer’s individual and conscious attitude or hostility against a particular racial or ethnic group; it may also be the result of biased (or at least permissive) internal police guidelines, practices or attitudes, whether formalised or merely tolerated by the hierarchy. To put it simply, it is not too much to ask of the Government in this context to merely show that the identity check had an objective and reasonable basis, not triggered exclusively or primarily by the person’s race or the fact of belonging to another group. For similar reasons, it would place an unfair and often impossible burden on the applicants to require them to prove the State agent’s discriminatory attitude. This would limit their chances to situations where a police officer would, say, be reckless enough to express his or her discriminatory motives and the future applicant would be lucky enough to have witnesses available. As such, it would hardly be fit to deter pernicious practices of racial discrimination by State agents. 8.     Finally, the refusal to shift the burden of proof in cases of an arguable claim of direct discrimination by State agents would create some rather paradoxical effects – considering that the Court has often agreed to do so in situations where applicants have put forward a presumption of indirect discrimination, for example by providing evidence of an apparently neutral practice that has produced disproportionately harmful effects on a particular group of people (see Hoogendijk v. the Netherlands (dec.), no. 58641/00, 6   January 2005; D.H. and Others v.   the Czech Republic , cited above; and Di Trizio , cited above). In such circumstances, the Government are invited to rebut that presumption by pointing to objective factors underlying the practice or policy. I cannot see why applicants such as Mr Basu, claiming to be victims of direct discrimination in a police check, ought to be placed in a less favourable position. The general national context and legal framework 9.     Various international bodies have published findings regarding the degree of prevalence of problematic profiling practices by German law enforcement. The present judgment does not, however, include any information about the general national context. ECRI has addressed the issue in its last two reports on Germany; in the most recent one, from December 2019, it expressed concerns about allegations of racially motivated conduct by police forces and referred, for example, to a study in which 34% of respondents of sub-Saharan African background reported having been stopped by the police at least once within the past five years [2] . 10.     An