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

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vertical-align:super; color:#0069d6 }   THIRD SECTION CASE OF MUHAMMAD v. SPAIN (Application no. 34085/17)     JUDGMENT Art 14 (+ Art 8) • Discrimination • Private life • Allegations of racial profiling by police during identity check on street duly examined and found unsubstantiated by administrative courts • Identity check within ambit of Art   8 • Obligation to investigate not absolute, meaning obligation to use best endeavours • Domestic courts’ decisions sufficiently reasoned • Existence of adequate legal framework to seek remedy against discrimination   STRASBOURG 18 October 2022   FINAL   06/03/2023     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Muhammad v. Spain, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Georges Ravarani, President , Georgios A. Serghides, María Elósegui, Anja Seibert-Fohr, Peeter Roosma, Andreas Zünd, Frédéric Krenc, judges , and Milan Blaško, Section Registrar , Having regard to: the application (no.   34085/17) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Pakistani national, Mr Zeshan Muhammad (“the applicant”), on 6 May 2017; the decision to give notice to the Spanish Government (“the Government”) of the complaints concerning Article 14 taken together with Article 8 of the Convention and Article   1 of Protocol No.   12, and to declare the remainder of the application inadmissible; the observations submitted by the Government and the observations in reply submitted by the applicant; the comments submitted by Human Rights Centre of Ghent University, the French Défenseur des droits (Defender of Rights), Rights International Spain and Plataforma por la Gestión Policial de la Diversidad, who were granted leave to intervene by the President of the Section; Having deliberated in private on 20 September 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     This case concerns a check of the applicant’s identity by the police on the street. He 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 of the Convention. THE FACTS 2.     The applicant, Mr Zeshan Muhammad, was born in 1992 and lives in Santa Coloma de Gramenet (Barcelona). He was represented before the Court by Mr J. Goldston and Ms M. Melon Ballesteros, lawyers practising in New York and London respectively. 3.     The Government were represented by their Agent, Mr A. Brezmes Martínez Villareal, State Attorney. The circumstances of the case 4.     The facts of the case, as submitted by the parties, may be summarised as follows. Identity check and arrest of the applicant 5.     The applicant has lived in Spain since 2005 and holds a long-term residence permit that allows him to live and work in Spain indefinitely. 6.     On 29 May 2013 the applicant and his friend K.A., both Pakistani nationals of the same ethnicity, were stopped by two National Police officers while walking on a street in Barcelona in which pickpocketing and thievery are relatively frequent. According to the applicant, he was talking to his friend when the officers asked them for their identity documents, after which the applicant allegedly asked the reason for the identity check and the conversation went as follows: Applicant: “Is it because of the colour of my skin?” Police officer: “Yes, because you are black, and that’s all. I am not going to stop a German citizen.” 7 .     Reportedly, the applicant protested against the officer’s racially motivated reasons, which prompted the police officer to get out of his car, softly slap the applicant, and put him into the car. According to the applicant, the police officer proceeded to inform him of his arrest while threatening him about potentially negative consequences concerning the renewal of his residence permit and called him “monkey”. The applicant was arrested and taken to a police station. The arrest did not take place in the presence of family members or in his neighbourhood. Only his friend K.A. was present. According to the applicant, K.A. was also requested by the police to produce identification, and he showed his documents. 8 .     Those facts were contested by the police. In the police register of detentions, it is recorded that the applicant was requested to identify himself on the street at 4.15 p.m., which he refused to do, and that the police officers took him to the police premises, where at 4.40 p.m. he showed his ID, following which he was released and accompanied on his way out at 4.43   p.m. A report of the events signed on the same day by the two police officers involved states that, at around 4.05 p.m., they were patrolling in a police car through a busy street in Barcelona. They approached the applicant only after he had laughed at the police officers and referred to them using disrespectful slang as they passed by. After being requested to show his identity card, the applicant had answered: “Why? Because I’m black? No way!” After being informed by the police that his refusal to be identified could result in an administrative fine or even constitute a criminal offence under Spanish law, the applicant had answered: “I refuse to identify myself. What are you going to do?” 9.     According to the police report, it was only then that he was transferred to the police premises in order to be properly identified. There, he gave his NIE (number for identifying regular foreign residents in Spain) and, with an angry attitude, threw it onto a table and said: “I’m giving it to you now because I want to, not because you requested it.” In contrast, the police report of the events for the relevant day does not mention the applicant’s friend; there is no record concerning him. The Government submitted that the applicant’s friend K.A. was not asked to show his identity documents since he had not made any comments to the police. 10.     It is undisputed that, after being identified at the police station, the applicant received a minor administrative notice ( denuncia de infracción administrativa ) for having refused to identify himself, displaying “a lack of respect towards authority” and “showing an insolent attitude”. The police officers then accompanied him to the nearest bus stop. Domestic criminal proceedings for unlawful detention 11.     On the day of his arrest, the applicant allegedly tried to lodge a criminal complaint against the police officers in two police stations, but he was informed that they would not accept any complaints against other officers. 12.     The next day, on 30 May 2013, the applicant lodged a handwritten criminal complaint with the Barcelona investigating court no. 3. The court initiated criminal proceedings, and immediately discontinued them. 13.     The applicant, assisted by the human rights non-governmental organisation (NGO) SOS Racisme Catalunya, lodged an appeal against the discontinuation of the proceedings. The public prosecutor endorsed the appeal and observed that further evidence was required in order to clarify the facts. The investigating judge upheld the appeal and, in a decision of 24   March 2014, agreed to obtain a statement from the two police officers (as persons under investigation in the criminal proceedings), a statement from the applicant as a victim and his friend K.A. as a witness, video-recordings of any surveillance cameras in the area of the alleged events at the relevant time, and the file on the applicant’s administrative offence. 14.     In the meantime, on 15 July 2013 SOS Racisme Catalunya lodged a new criminal complaint on the applicant’s behalf with the two Catalan police stations mentioned above, challenging their refusal to register his complaint of misconduct against the National Police. The police acknowledged receipt of the complaint but declined to address the specific facts contained therein until the judicial criminal proceedings had finished. 15 .     The criminal proceedings were instituted only on the basis of the applicant’s allegations of defamation (based on the alleged insults), bodily harm (based on the alleged slapping), unlawful detention, unlawful humiliation committed by a civil servant when lawfully inspecting a person’s documents, intimidation, and forgery of official documents (see paragraph   36 below), and not in relation to the allegedly discriminatory identity check. The two police officers were questioned as persons under investigation. They maintained that the applicant had been taken to the police station for the sole purpose of verifying his identity, as he had refused to show his documents (which he was legally required to do) when requested to do so on the street. They also emphasised the fact that his friend K.A. had not been asked to identify himself because he had not made any comments. The testimony of K.A. could not be heard because it proved impossible to notify him within the proceedings, although the applicant submitted a sworn statement of his friend’s testimony, given as an affidavit before a notary on 2 December 2013, in which he had confirmed the applicant’s account of the facts. No relevant video footage could be found despite the investigating court’s request. 16 .     In April 2015 the public prosecutor requested the discontinuation of the proceedings. The investigating court ordered the discontinuation in a decision of 2 June 2015. The applicant lodged an appeal with the same court, to no avail. He then lodged another appeal with the Audiencia Provincial , which was dismissed in a decision of 4 February 2016 upholding the discontinuation of the criminal proceedings for lack of evidence of the commission of any criminal offence. 17 .     The applicant did not lodge any further appeals, and the decision to discontinue the criminal proceedings became final. The applicant has not complained before the Court in respect of this matter. Domestic administrative proceedings for racial discrimination 18 .     On 7 April 2014, while the criminal proceedings were still pending, the applicant initiated administrative proceedings in the form of a State liability claim ( reclamación por responsabilidad patrimonial del Estado ) with the Ministry of the Interior, complaining that the identity check carried out by the police had been discriminatory. He submitted that it had caused him deep feelings of humiliation, unfair persecution, exclusion and marginalisation, all of which had infringed his personal dignity. He sought an acknowledgment that the police’s behaviour had been unlawful, a public apology from the State, 3,000   euros in respect of non-pecuniary damage and the publication of the judgment in the media. 19 .     To substantiate his complaint, the applicant submitted the same sworn statement from his friend as an eyewitness to the identity check as had been submitted in the criminal proceedings (see paragraph 15 above). He also submitted documents substantiating his attempts to lodge a complaint at the police stations; his judicial criminal complaint; the file on the criminal proceedings; statistical expert reports (including an analysis of statistical data conducted by the Human Rights Institute of the University of Valencia and Oxford University, and a report from the Spanish Ombudsperson); news articles concerning widespread discrimination by the police forces; other reports from international, regional and national human rights bodies (including the Council of Europe’s European Commission against Racism and Intolerance (ECRI) and the United Nations Committee on the Elimination of Racial Discrimination (CERD)) concluding that Spanish police identity checks amounting to racial profiling were a pervasive and widespread practice; and reports by NGOs (including Amnesty International) corroborating the statistical conclusions. The applicant requested that the two police officers be heard and that the Ministry of the Interior again try to obtain video footage from the surveillance cameras in the area. 20.     The applicant also argued that the Spanish Law on the protection of public safety, as in force at the time of the incident (see paragraph 33 below), did not provide adequate safeguards to prevent racial or ethnic profiling and other discriminatory conduct by the police forces. In particular, he asserted that the law did not establish a requirement for a sufficiently well-founded reason to carry out identity checks, among other flaws, which allowed room for arbitrary and discriminatory behaviour. 21.     The police authorities submitted a report, drafted by the police’s legal department, which stated, on the basis of the submissions of the two police officers involved in the applicant’s identification, that there had not been any racial motives behind the identity check, and that it had been motivated by his defiant attitude and conduct and not by his appearance. The report commended the police officers’ conduct. They also submitted a report by the Head of the Police in Catalonia dated 30 April 2014 (report no. 1895), which incorporated the record of the administrative proceedings against the applicant for his refusal to identify himself, as drafted by the two police officers involved. 22.     The administrative authorities initially decided to stay the administrative proceedings until a final decision in the criminal proceedings had been given, but eventually decided to continue them because the two sets of proceedings were based on different grounds: the applicant maintained that the criminal proceedings were based on forgery, insults and threats allegedly committed by the police officers during and after his arrest, whereas the administrative proceedings were based on the allegedly discriminatory identity check. 23.     By a decision of 16 July 2014, the administrative authorities informed the applicant that there was no need to hear the police officers since the record of their statement following the incident had already been included in the file, and that the video footage would not be a relevant piece of evidence in the administrative proceedings. The administrative authorities considered that they had agreed to proceed at the request of the applicant, even though there were judicial criminal proceedings pending, but clarified that some of the evidence proposed by the applicant was only relevant to the criminal proceedings. 24.     By a decision of 6 November 2014, the administrative proceedings were discontinued for lack of evidence of the allegedly discriminatory treatment. The authorities found that, in order to find the State liable for acts or omissions committed by the public authorities, the claimant had the burden of supporting his claims with sufficient evidence. In the present case, despite the applicant’s statement that he had suffered a discriminatory identity check and that this had caused him non-pecuniary damage, there was no supporting evidence. They also observed that his version of the facts was radically different from the one presented by the police. As a result of the above, they concluded that a causal link between the State’s liability and the alleged harm suffered by the applicant had not been established, and the claim had to be dismissed. 25 .     In January 2015 the applicant instituted judicial administrative proceedings against the administrative decision of 6 November 2014 with Central Administrative Court no.   11 ( Juzgado Central de lo Contencioso-administrativo ). He asserted that nobody else of white ethnicity had been stopped and asked to provide identification, and that the only reason for his being stopped had been his appearance. In his appeal, the applicant also argued that there was a pervasive practice of ethnic/racial profiling in the Spanish police forces, facilitated in part by the relevant legislation. He relied on multiple statistical expert reports and news articles concerning widespread discrimination by the police forces; reports by other international, regional and national human rights bodies concluding that Spanish police identity checks amounting to racial profiling were a pervasive and widespread practice; and NGO reports corroborating the statistical conclusions (he submitted the same documents as in the administrative proceedings – see paragraph   19 above). He also reiterated his request for an award of EUR   3,000 in respect of non-pecuniary damage, a public apology from the State and the publication of the apology and the judgment in a national newspaper. The applicant also requested the domestic court to ask the Court of Justice of the European Union for a preliminary ruling on the compatibility of police racial profiling to identify irregular migrants with Article 21 of the Charter of Fundamental Rights and Articles 4, 5, 6 and 21 of the Directive on common standards and procedures in Member States for returning illegally staying third-country nationals [1] . 26.     In order to substantiate his allegations, the applicant asked to have summoned and examined at the hearing his friend K.A., the police officers involved in his identity check and arrest, and an expert witness to explain a report on racial profiling statistics attached to the administrative file. During a preliminary hearing, the evidence proposed by the applicant was rejected by the central administrative court. The applicant appealed orally against that decision ( recurso de reposición ), but his appeal was immediately dismissed. The administrative court held that the written statement of the police officers was already in the administrative file, his friend’s witness statement was also included in a notarised document attached to the administrative file and it was not necessary to hear the expert proposed by the applicant to clarify or explain the statistical report already submitted, as the report could be examined and assessed by the judge himself. 27.     By a judgment of 14 September 2015, the applicant’s appeal was dismissed. Firstly, the central administrative court pointed out that the administrative proceedings could only result in an award of compensation to the applicant for damage caused by the functioning of the public authorities, and on no account could it result in a public apology from the State or the publication of the judgment and apology in a national newspaper. The judge also found that a direct or indirect link between the allegedly discriminatory conduct by the police officers and the harm allegedly suffered by the applicant had not been established. The judge further found that the evidence provided by the parties (the applicant and the police) was essentially contradictory, and that the documents provided by the police stated that there had not been any wrongdoing in the request for the identification of the applicant, which had been caused by his defiant attitude. According to the judge, the applicant had not provided any support for his version of the facts. There was therefore no causal link between the harm he had allegedly suffered (which was also not established) and the functioning of the public authorities. 28.     On 20 October 2015 the applicant lodged an application with the same court to have the above-mentioned judgment declared void, which was dismissed on 17   May 2016 on the grounds that what the applicant was actually requesting was a new assessment of the evidence and, ultimately, a favourable decision. The domestic court held that the complaints about the inadmissibility of the evidence had already been dealt with during the hearing by way of an oral appeal that had also been reasonably dismissed, so there had been no violation of any fundamental right. With regard to the request for a preliminary ruling from the Court of Justice, it considered that it was not warranted, given that European Union legislation was not necessary to resolve the applicant’s administrative claim in the case at hand. 29.     Lastly, the applicant lodged an amparo appeal with the Constitutional Court, which was declared inadmissible on 3 November 2016 for lack of constitutional relevance. That decision was served on 8 November 2016. RELEVANT LEGAL FRAMEWORK DOMESTIC LEGAL FRAMEWORK 30.     The relevant provisions of the Spanish Constitution read as follows: Article 13 “1.     Foreign citizens shall enjoy the rights and freedoms guaranteed by the present Part, under the terms to be laid down by treaties and the law. ...” Article 14 “All Spanish citizens are equal before the law and they may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance.” Article 18 “1.     The right to respect for honour, for private and family life and for one’s own image shall be guaranteed.” 31 .     The provision concerning State liability of Law no. 30/1992 of 26   November 1992 on the legal regime applicable to public authorities and the common administrative procedure, which was in force at the time of the events, provided as follows: Article 139. Principles of liability “1.     Individuals shall have the right to be compensated by the relevant public authority for any harm caused to any of their property or rights, except in cases of force majeure , provided that the harm is the result of the normal or abnormal functioning of public services. 2.     In any event, the alleged harm must be actually incurred, economically measurable and related to a specific person or group of persons. ...” 32.     The relevant part of Section 2 of Law no. 62/2003 of 30 December 2003 [2] , regarding equality of treatment and non-discrimination on grounds of racial or ethnic origin, reads as follows: Article 32. Burden of proof relating to racial or ethnic origin “In civil and administrative proceedings where the claimant establishes facts from which it may be presumed that there has been direct or indirect discrimination on grounds of racial or ethnic origin, it shall be for the respondent to provide an objective and reasonable justification, duly proved, of the measures adopted and of their proportionality.” 33 .     The relevant provisions of Institutional Law no. 1/1992 of 21   February 1992 on protection of public safety, as applicable at the relevant time (subsequently amended), read as follows: Article 20 “1.     The security forces and corps may, in the exercise of their functions of investigation or prevention, require individuals to identify themselves and carry out any checks which they deem appropriate on the street or in the place where the requirement has been issued, provided that the knowledge of the identity of such individuals is necessary for the exercise of the public-safety functions entrusted to the police by this Law and by the Institutional Law on the security forces and corps. 2.     If personal identification cannot be achieved by any means, and when it is necessary for the same purposes as in the previous paragraph, the police, in order to prevent the commission of a crime or minor offence, or in order to punish an administrative offence, may require anyone who cannot be identified to accompany them to nearby premises that have appropriate means to carry out identification procedures, for these purposes alone and for the minimum amount of time required. 3.     At the premises referred to in the previous paragraph, a register shall be kept to record the identification procedures carried out there, as well as the reasons for and duration of such procedures, and shall be available at all times to the competent judicial authority and the public prosecutor’s office. Notwithstanding the above, the Ministry of the Interior shall periodically send a summary record of the identification procedures to the public prosecutor’s office. 4.     In the event of unjustified resistance or refusal to identify oneself or to voluntarily undergo checks or identification procedures, the provisions of the Criminal Code and the Law on Criminal Procedure shall apply.” Article 26 “[The following] shall be considered minor administrative offences under the [present] Law on protection of public safety: ... (h)     Disobeying the orders of an authority or its officers, issued in direct application of the provisions of this Law, when this does not constitute a criminal offence.” 34 .     A new Institutional Law on protection of public safety (Institutional Law no. 4/2015 of 30 March 2015) came into force on 1 July 2015. Its relevant parts read as follows: Article 16. Identification of individuals “1.     In the fulfilment of their tasks of investigation and prevention of crime, and for the punishment of administrative and criminal offences, the officers of the security forces may require individuals to identify themselves in the following situations: (a)     where there is circumstantial evidence that the individual may have taken part in an offence; (b)     where, given the specific circumstances, it is considered reasonably necessary to prove the individual’s identity to prevent a crime. In such situations, the officers may carry out the necessary checks on the street or in the place where the requirement was issued, including the identification of people whose face is not visible, whether completely or partially, owing to the use of clothes or objects that cover it, preventing or hindering identification in cases where it is necessary. During the identification, the principles of proportionality, equal treatment and non-discrimination on the grounds of birth, race, ethnic origin, sex, religion or belief, age, incapacity, sexual identity or orientation, opinion or any other personal or social condition or circumstance, shall be respected.” 35.     The relevant parts of Institutional Law no. 4/2010 of 20 May 2010 on disciplinary rules for State police forces read as follows: Article 7. Very serious offences “The following shall be considered to be very serious offences: ... (n)     Any action that represents discrimination on the grounds of race or ethnic origin, religion or belief, incapacity, age, sexual orientation, sex, language, opinion, place of birth or residence, or any other condition or personal or social circumstance.” 36 .     The relevant parts of circular letter no. 2/2012, issued by the General Directorate of the Police, on the identification of citizens read as follows: Second instruction: on the identification of citizens “The identification of individuals in respect of whom suspicion arises is to be carried out in a respectful and courteous manner and in such a way that only the necessary interference is involved; therefore, unnecessary, arbitrary, abusive and ultra vires practices are to be avoided. The transfer of individuals to a police station for identification can only take place in the circumstances provided in Article 20 §   2 of Institutional Law 1/1992 [cited above], that is, when there are unidentified individuals whose identification is not possible and about whom there is reasonable and justified suspicion that they are about to commit a criminal offence, or any individuals, likewise unidentified, who have committed an administrative offence. ...” Third instruction: specific aspects deriving from Institutional Law no. 4/2000 on the rights and freedoms of aliens in Spain and their social integration “During the identification of foreign citizens, officers are to act in accordance with the previous instruction. In relation to the second paragraph, officers are reminded that it is unacceptable to take such individuals to a police station upon the mere discovery, during the check, of the irregularity of their stay in Spain, as long as their identity has been proven through an official or valid and sufficient document and the person provides a verifiable residence (or one that can be verified during identification). In that event, the citizen is to be informed that the authorities will be notified in order to enforce, if needed, the third part of Institutional Law no. 4/2000, concerning administrative offences relating to alien law and its rules on sanctions. ...” 37.     The relevant parts of the Criminal Code concerning the offences for which the two police officers were investigated are Article 147 (on bodily harm), Article   208 (on defamation), Article 171 (on intimidation), Article 534 (on criminal offences committed by civil servants against the inviolability of the home and other guarantees of privacy), Article 390 (on forgery of public documents), and Articles 163 and 167 (on unlawful detention). The Spanish Criminal Code also provides in Article 22 §   4 that it is an aggravating circumstance when criminal offences are committed for discriminatory reasons based on ethnicity or race. INTERNATIONAL LEGAL FRAMEWORK AND PRACTICE 38 .     The United Nations Human Rights Committee (CCPR) 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 (UN Doc. 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 ...” 39 .     ECRI’s report on Spain (fifth monitoring cycle), adopted on 5   December 2017 and published on 27   February 2018 (CRI(2018)2), set out the following recommendations in respect of Spanish civil and administrative law: “ ... 12.     The existing anti-discrimination provisions are contained in the Constitution as well as in Articles 27 to 43 of Law 62/2003, which transposed the EU equality directives 2000/43 and 2000/78 and amended over 50 existing laws. Already in its last report on Spain, ECRI noted that practically no cases have been brought to court under these provisions, as a result of the law’s relative obscurity and a general lack of awareness about it. 13.     Article 28.1 of Law 62/2003 defines and prohibits ... direct and indirect discrimination. While, according to Article 14 of the Constitution and the case law of the Constitutional Court, discrimination based on all personal or social circumstances and conditions is prohibited, the grounds of race, colour, language, citizenship, national origin and gender identity are however missing from this and other legal provisions. ... 17.     According to § 10 of GPR [General Policy Recommendation] No. 7, the law should ensure that all victims of discrimination have ready access to judicial and/or administrative proceedings, including conciliation procedures. ECRI considers that the Spanish system is not fully in line with this recommendation. Victims of discrimination face serious difficulties in bringing cases to court, as representation by two different types of lawyers is mandatory and as court proceedings are often long and complex. The number of discrimination cases brought before the courts seem to be very low. ... 18.     Article 32 of Law 62/2003 is in line with § 11 of ECRI General Policy Recommendation No.   7 on the sharing of the burden of proof in discrimination cases. The existing legislation does however not appear to be in line with § 12 of GPR No. 7 according to which the law should provide for effective, proportionate and dissuasive sanctions for all discrimination cases including the payment of compensation for material and moral damages. ... 81.     Fighting discrimination is an important part of successful integration policies. The statistical data referred to in this report shows considerable levels of actual and perceived discrimination towards migrants and other vulnerable groups. Racial profiling by law enforcement authorities for example is an on-going issue. ...” 40 .     Paragraph 11 of ECRI’s General Policy Recommendation No. 7 on national legislation to combat racism and racial discrimination, adopted on 13   December 2002, 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.” 41.     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 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 ARTICLES 8 AND 14 OF THE CONVENTION 42.     Relying on Articles 8 and 14 of the Convention and Article 1 of Protocol No.   12, the applicant complained that he had been requested to identify himself on a public street on the sole grounds of his race, and that this had amounted to racial discrimination and a violation of his right to respect for his private life. He also asserted that his complaints had not been effectively examined by the domestic courts. 43.     The Court’s case-law has clarified that, whereas Article 14 of the Convention prohibits discrimination in the enjoyment of “the rights and freedoms set forth in [the] Convention”, Article 1 of Protocol No. 12 extends the scope of protection to “any right set forth by law”. It thus introduces a general prohibition of discrimination. Notwithstanding the difference in scope between the two provisions, the meaning of the term “discrimination” is identical in both (see paragraph 18 of the Explanatory Report to Protocol No. 12). The applicant raises the question of discriminatory treatment in the context of an identity check and the existence of an obligation to investigate potential racist motives for the check, thereby also framing his complaint as one of interference with his private life under Article 8 of the Convention. In the light of the above, 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 complaints fall to be examined only under Article 14 read in conjunction with Article 8 of the Convention. 44.     The above-mentioned provisions read as follows: Article 8 of the Convention “1.     Everyone has the right to respect for his private and family 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.” Article 14 of the Convention “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... race, colour ...” Admissibility 45.     The Government submitted that the applicant had failed to exhaust the available domestic remedies. He had instituted two separate and independent sets of proceedings in the national criminal and administrative courts based on different substantive issues and entailing the use of different remedies. The criminal proceedings had been concluded by means of a discontinuation decision and the applicant had not lodged an amparo appeal against that decision. 46.     The applicant submitted that his complaints before the Court concerned exclusively the administrative proceedings, since the identity check, even if racially motivated, did not constitute a crime per se . He further argued that he had duly exhausted domestic remedies in the administrative proceedings, in that he had lodged an amparo appeal with the Constitutional Court. 47.     The Court observes that, after his administrative complaint based on racial and ethnic profiling by the police was rejected by the administrative authorities, the applicant unsuccessfully brought his claim before Central Administrative Court no.   11 and later lodged an amparo appeal with the Constitutional Court, which was declared inadmissible for lack of constitutional relevance. 48.     The applicant’s complaints before the Court refer to the administrative proceedings only. Consequently, the Government’s objection must be dismissed. 49.     The Court also notes that an identity check by the police can fall within the scope of the private life of the person subjected to that check and therefore constitute an interference with that person’s private life as protected by Article 8 of the Convention. In particular, 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 v. the United Kingdom , no. 4158/05, §   63, ECHR 2010, 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). 50 .     However, 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, inter alia , Bédat v.   Switzerland [GC], no. 56925/08, § 72, 29   March 2016, and Denisov v.   Ukraine [GC], no.   76639/11, § 112, 25 September 2018, with further references) and self-respect. 51.     The Court notes that the applicant was subjected to an identity check by the police in public, on the s