CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 février 2024

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SWITZERLAND (Applications nos. 43868/18 and 25883/21)     JUDGMENT Art 14 (+ Art 8) • Domestic courts’ failure to ascertain whether discriminatory motives were behind identity check of dark-skinned man alleging racial profiling in railway station • Art 14 (+ Art 8) applicable • Threshold of severity to fall within ambit of right to respect for private life attained • Arguable claim of discrimination on ground of skin colour • Inability of Government to rebut presumption of discriminatory treatment during identity check, including search • Presumption strengthened by international reports showing racial profiling by police, corroborated by third-party interveners Art 13 + (Art 14 + 8) • No effective remedy   Prepared by the Registry. Does not bind the Court.   STRASBOURG 20 February 2024 FINAL   20/05/2024 This judgment became final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Wa Baile v. Switzerland, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Pere Pastor Vilanova , President ,   Jolien Schukking,   Georgios A. Serghides,   Darian Pavli,   Peeter Roosma,   Ioannis Ktistakis,   Andreas Zünd , judges , and Milan Blaško, Section Registrar, Having regard to: the applications (nos.   43868/18 and 25883/21) against the Swiss Confederation lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Swiss national, Mr   Mohamed Shee Wa   Baile (“the applicant”), on 10 September 2018 and 7   May 2021 respectively; the decision to give notice to the Swiss Government (“the Government”) of the complaint concerning Article   14 of the Convention, read in conjunction with Articles   6 and 8, and the complaint concerning Article   13 of the Convention, and to declare inadmissible the remainder of the applications; the observations submitted by the respondent Government and the observations in reply submitted by the applicant; the comments submitted by Amnesty International, the Open Society Justice Initiative and the French Défenseure des droits (Defender of Rights), who were granted leave to intervene in the written procedure by the President of the Section; the Section President’s decisions to treat some of the documents in the case files as confidential under Rule   33 of the Rules of Court; Having deliberated in private on 14   November 2023 and 16   January 2024, Delivers the following judgment, which was adopted on the last-mentioned date: INTRODUCTION 1.     In the present case, the applicant alleged that the identity check to which he was subjected in Zürich railway station had been based on racial profiling. This check, following which he was fined for having refused to submit to it, gave rise to two applications – one concerning the criminal proceedings and the other the administrative proceedings brought by the applicant in the domestic courts – in which he claimed to have been the victim of discrimination on the ground of his skin colour and explained, in particular, that the question whether he had been the subject of racial profiling had not been decided by the competent authorities. The case raised issues under Article   14 of the Convention in conjunction with Article   8 and under Article   13 of the Convention. THE FACTS 2.     The applicant is a Swiss national who was born in 1974 and lives in Bern. He was represented by Ms M.   Zihlmann, a lawyer practising in Zürich. 3.     The Government were represented by their Agent, Mr   A. Chablais, of the Federal Office of Justice. I.         THE IDENTITY CHECK 4.     On the morning of 5   February 2015 the applicant was on his way to work at the Zürich Polytechnical Institute when he was stopped for an identity check in Zürich railway station by three municipal police officers at around 7   a.m. As he refused to comply with their orders, the officers took him aside and asked him to raise his hands in the air and spread his legs. They went on to search his pockets and his backpack until they found a document that established his identity. Once his identity had been confirmed, the applicant was allowed to leave. 5 .     In his report of 26   February 2015 the officer in charge of the identity check (hereinafter A.) stated, in particular, as follows: “While on patrol ... , my attention was drawn by a dark-skinned, male individual (subsequently identified as being Mr   Wa Baile) who seemed suspicious to me. This was because of the individual’s conduct (Mr   Wa Baile averted his gaze when he realised that I was a police officer, and sought to avoid me). There being cause to suspect a breach of the Federal Aliens Act [Law of 16   December 2005, known as the ‘Aliens and Integration Act’ ( loi sur les étrangers et l’intégration – ‘LEI’) since 1   January 2019 and published in the Recueil systématique (‘RS’ – Compendium of Federal Law) under number   142.20], I decided to subject Mr   Wa Baile to an identity check. When I spoke to him to inform him of the check, he appeared nervous, saying only ‘I don’t have an identity document’. This strengthened my suspicion that I was dealing with a breach of the LEI.” 6.     The statement of the facts, as recorded in the report, reads as follows: “During an identity check, Mr   Wa Baile refused to provide proof of his identity by means of an identity document. Furthermore, he repeatedly ignored the police officers’ orders (that he was to cooperate and state his name ). During the check, Mr   Wa   Baile called us racist and characterised the check we were performing as vexatious.” 7.     According to the same report, during the identity check, the applicant had in substance made the following remarks: “I’ve got rights, too. What you are doing here is inappropriate; it’s racism. My identity is checked everywhere I go. I don’t care what you say. I don’t have an identity document and I won’t say who I am, either. Go ahead and write up a report. I’m not going to pay any fine. I’d rather go to prison.” 8.     The applicant, for his part, presented the facts as follows . As the three police officers had approached him, he had glanced at them before averting his gaze and moving on. By that time, the officers had already accosted him. He pointed out that no one else in the crowd of people on the way to work – who he claimed were almost all white – had been subjected to an identity check. Lastly, he claimed not to have received an answer as to why he had been stopped. II.       THE CRIMINAL PROCEEDINGS (APPLICATION N o. 43868/18) 9 .     By a summary penalty order of 16   March 2015 the applicant was fined 100   Swiss francs (CHF) pursuant to Articles   4 and 26 of the General Ordinance on the Zürich Municipal Police (see paragraph   36 below) for refusal to comply with police orders and a lump sum of CHF   150 for procedural costs. 10.     The applicant appealed against the order on 23   March 2015. After gaining access to the case file, he supplemented his claim with a memorial dated 20   April 2015. 11.     On 30   November 2015 the Zürich Minor Offences Office ( Stadtrichteramt ) interviewed the applicant and A. 12.     In a memorial dated 2   February 2016 the applicant requested additional evidence-gathering measures. He asked that the pedagogical material on checks on persons that was used in police training be added to the file, together with any internal instruction or document on this subject and the relevant statistical data. In a decision of 30   March 2016 the Minor Offences Office rejected this request in so far as it pertained to the communication of statistical data, explaining that the present case had to be examined on the basis of the particular circumstances and that the communication of such data would provide no further information that was relevant in that regard. As to the other points, the Minor Offences Office had asked the head of the legal department of the Zürich Municipal Police to provide any documents in her possession that might satisfy the applicant’s request. That person had accordingly forwarded to the Minor Offences Office, which had added it to the file, an excerpt from Municipal Police Regulation no.   6105 of 5   January 2009 on checks on persons. There being no further relevant documents, the Minor Offences Office considered that it had sufficiently responded to the applicant’s request. 13.     On 30   March 2016 the Minor Offences Office forwarded the file to the Zürich District Court (“the District Court”). 14.     In a judgment of 7   November 2016 the applicant was convicted, under Article   26 of the General Ordinance on the Zürich Municipal Police in conjunction with Article   4, of refusing to comply with a police order and was sentenced to pay a fine of CHF   100. The District Court found that the versions of the facts given by the applicant and by A. were both credible. It pointed out that, under domestic law, declaring a police order to be unlawful – unlike declaring it to be null and void –   did not entail that the person to whom it had been addressed had not been obliged to comply. It noted that A. had submitted that he had carried out the check because the applicant had seemed suspicious to him for having averted his gaze and attempted to avoid him. Allowing that one might question whether such grounds were sufficient, the District Court nonetheless found that it was appropriate to take into account, in A.’s favour, that he had not had much time to decide whether a check was necessary. Moreover, the District Court observed, it could not be denied that the officer had noticed something which, in that moment, had appeared to justify the check. It found that there was nothing to suggest that the applicant’s skin colour had been a decisive factor in the officer’s decision to perform an identity check. It added that even if, in retrospect, the conclusion were to be reached that the conditions for a check had not been met, the order in question could not be regarded as having been null and void. It followed, according to the District Court, that even if it were shown that A. had overstepped his margin of appreciation and therefore that the identity check had been unlawful, the applicant would still have been obliged to submit to it. The District Court explained that such a line of reasoning, as troubling as it might seem, was both necessary for the proper functioning of State institutions and acceptable having regard to the possibility afforded to those who had been subjected to a check they wished to challenge to have its unlawfulness established ex   post   facto by the administrative courts. 15.     On 12   December 2016 the applicant challenged that judgment before the Zürich Cantonal Court (“the Cantonal Court”), alleging, in particular, that the identity check had been based on racial profiling. 16 .     In its judgment of 25   August 2017 the Cantonal Court upheld the applicant’s conviction. It pointed out that, to be declared null and void, an order by a police officer had to be grossly and manifestly irregular, or at least easily recognisable as such. It explained that this condition would have been met, in particular, if there had been evidence in the case file of improper conduct or inappropriate remarks on the part of the police officer. The Cantonal Court noted, however, that the applicant had never made any allegations to that effect   and that the available evidence, in particular the statements given by A. and by the applicant, gave no indication that the identity check had been performed on manifestly discriminatory grounds. The Cantonal Court attached decisive importance to the fact that the District Court had found credible A.’s submissions to the effect that the identity check had been prompted by the applicant’s conduct rather than his skin colour. It further explained that, while it was certainly true that the conduct in question had provided only a tenuous basis for the assumption that the applicant was in breach of the law and for the resulting decision to subject him to an identity check, the applicant’s submission that he had been the only one that morning subjected to an identity check on the basis of such weak grounds was a mere supposition which nothing in the file substantiated. Thus, the Cantonal Court observed, A. had pointed out that a number of other individuals had been subjected to an identity check on the same day. The Cantonal Court added that regard should be had to the context.   It pointed out that the identity check had taken place in Zürich railway station, a very busy place where one could expect intensified criminal activity and, accordingly, a police presence and checks, especially in connection with suspected breaches of the LEI, given that border controls in the Schengen Area were limited. It explained that such breaches were not visible on the basis of clearly perceptible signs and that it was therefore appropriate that police checks in this regard should not be subject to unduly stringent justification requirements. In the Cantonal Court’s view, it could not be inferred from the tenuousness of the signs on the basis of which the decision to perform the check had been taken that this decision had been manifestly unlawful. Nor was there anything in the manner in which the check had been conducted to suggest that it had been vexatious or discriminatory in nature. 17.     On 10   October 2017 the applicant lodged an appeal against this judgment with the Federal Supreme Court. 18 .     In a judgment of 7   March 2018, notified on 15   March 2018, the Federal Supreme Court declared the appeal partly admissible but dismissed it. It found, in particular, that the Cantonal Court’s assessment was not arbitrary. As to the applicant’s complaint that the identity check had been based on racial profiling and had therefore been discriminatory, the Federal Supreme Court took the view that this complaint rested on a different account of the facts from the one which the first-instance court had found to be credible. Explaining that it was bound by the facts as established by the lower court, the Federal Supreme Court declared the complaint inadmissible. III.     THE ADMINISTRATIVE PROCEEDINGS (APPLICATION N o .   25883/21) 19 .     On 22   March 2016 the applicant sought to have the identity check of 5   February 2015 declared unlawful by the Zürich Municipal Police. He claimed to have been the victim of infringements of his rights to freedom of movement, respect for his private life and informational self-determination, and of a violation of the prohibition of discrimination. 20.     In a decision of 20   July 2016 the Municipal Police adjourned the proceedings pending the outcome of the ongoing criminal proceedings. On 30   March 2017 the applicant sought to have the suspension lifted. 21.     On 26   April 2017 the Municipal Police rejected the request on the grounds that the applicant had raised his complaint as to the unlawfulness of the impugned identity check in the context of the criminal proceedings and a final determination had yet to be made in that regard. 22.     The administrative proceedings resumed once the Federal Supreme Court’s judgment of 7   March 2018 had put an end to the criminal proceedings (see paragraph   18 above). 23 .     In a decision of 20   December 2018 the Municipal Police dismissed the applicant’s request. They claimed to be bound by the criminal-law authorities’ findings as to the establishment of the facts and further explained, referring to the Court’s relevant case-law, why the reversal of the burden of proof relied on by the applicant was not applicable in the case at hand. 24.     On 25   January 2019 the applicant appealed against this decision to the Zürich Municipal Council ( Stadtrat ). He again pleaded that the police check of 5   February 2015 had been unlawful and that there had been an infringement of the same rights as he had asserted before the Municipal Police. 25 .     On 10   April 2019 the Municipal Council rejected the appeal. They explained, as the Municipal Police had done, that the administrative authorities were in principle bound by the facts as established by the criminal courts and went on to examine the applicant’s complaints, taking account of the Court’s relevant practice. 26 .     On 27   May 2019 the applicant appealed against this decision to the Zürich District Office ( Statthalteramt ). Putting forward the same arguments, he reiterated in substance the claims he had made before the lower bodies. On 20   November 2019 the District Office dismissed the appeal. 27.     On 13   January 2020 the applicant challenged this decision before the Administrative Court of the Canton of Zürich (“the Administrative Court”). He once again requested that the impugned police check be declared unlawful. In this connection, he reiterated his previous allegations of rights violations, further complaining of an infringement of his personality rights. 28 .     In a judgment of 1   October 2020 the Administrative Court declared the appeal admissible, set aside the lower bodies’ decisions and held that the check of 5   February 2015 had been unlawful. The Administrative Court first examined the applicant’s arguments with regard to the gathering of evidence and declared, in particular, that it could validly rely on the evidence that had been produced before the criminal courts. It found that a fresh interview with the police officer who had performed the impugned check would be unlikely to provide additional clarification and that alternative evidence, such as that sought by the applicant, would be of no use to it in dealing with the issues raised by the case. It went on to lay out the relevant legal framework, devoting several pages, in particular, to a detailed presentation of the applicable principles regarding identity checks. The Administrative Court also examined the various issues raised by the case. It noted, in particular, that, in view of the conflicting statements given by the applicant and the police officer involved, the precise moment at which the applicant had averted his gaze could not be determined. As to the question whether the identity check could be regarded as having been justified – assuming, as the police officer had submitted, that it had been prompted by the act of looking away –   the Administrative Court held that, notwithstanding the particular context of Zürich railway station, the answer was “no”. Since the identity check had thus been unlawful in any event, the Administrative Court took the view that the question as to discrimination on the ground of skin colour remained open (point 5.7.3). 29.     On 14   December 2020 the applicant lodged an appeal against this judgment with the Federal Supreme Court. On the merits, he asked the Federal Supreme Court, first, to set aside the lower court’s judgment in so far as that court had not examined the question whether the check of 5   February 2015 had been unlawful, in particular by reason of a violation of Article   14 of the Convention in conjunction with Article   8, and, second, to hold that the check in question had entailed, in particular, a violation of his rights under Article   14 of the Convention in conjunction with Article   8. In the alternative, he requested that the case be sent back to the lower court with a view to establishing the relevant facts and examining the violations of fundamental rights he alleged. 30 .     In a judgment of 23   December 2020 the Federal Supreme Court, sitting as a single judge, declared the appeal inadmissible. Pointing out that, under section   89(1)(c) of the Federal Supreme Court Act of 17   June 2005 (see paragraph   32 below), a person had standing to lodge a public-law appeal only if that person had a legitimate interest in having the decision appealed against quashed or varied, it found that this condition was not met in the case at hand. It explained that the applicant had obtained full satisfaction before the Administrative Court and was therefore seeking neither the quashing nor the amendment of the impugned decision, but merely additional reasoning. However, the Federal Supreme Court pointed out, there was no right to that effect. relevant legal framework and practice I.         DOMESTIC LAW 31.     The relevant provisions of the Federal Constitution of the Swiss Confederation (“the Constitution”), adopted on 18   April 1999 (RS   101), read as follows: Article   7   –   Human dignity “Human dignity must be respected and protected.” Article   8   –   Equality before the law “Every person is equal before the law. No person may be discriminated against, in particular on grounds of origin, race, gender, age, language, social position, way of life, religious, ideological or political convictions, or because of a physical, mental or psychological disability. ...” 32 .     The Federal Supreme Court Act of 17   June 2005 (RS   173.110) provides as follows: Section   89   –   Locus standi “ Locus standi to appeal in matters of public law shall be had by anyone who a.   has taken part in the proceedings before the lower authority or has been deprived of the opportunity to do so; b.     has been particularly affected by the decision or legal act appealed against; and c.     has a legitimate interest in having it quashed or varied. ...” Section   99   –   [New grounds of appeal] “... 2. Any new pleadings shall be inadmissible. ” 33 .     Article   286 of the Swiss Criminal Code of 21   December 1937 reads as follows: Article   286   –   Obstruction of an official act “Anyone who has impeded an authority, a member of an authority, or a civil servant in the accomplishment of an act forming part of his or her duties shall be punished by a day-fine for a period of up to 30 days. ...” 34 .     Article   215 of the Code of Criminal Procedure of 5   October 2007 provides as follows: Article   215   –   Police power to stop “In order to clarify a breach of the law, the police may stop an individual and, if necessary, take him or her to the station, for the following purposes: a.     to establish the person’s identity; b.     to question the person briefly; c.   to determine whether the person has committed an offence; d.     to determine whether enquiries should be undertaken in respect of that person or of objects found in his or her possession. The police may compel the apprehended person a.     to disclose his or her identity; b.     to produce his or her identity papers; c.     to display the objects he or she is carrying; d.     to open his or her luggage or vehicle. The police may request private citizens to assist them in apprehending an individual. Where there are strong indications that offences are being committed or that wanted persons are to be found in a particular place, the police may block the exits and, if appropriate, apprehend those present.” 35 .     The Canton of Zürich Police Act (published in the Compendium of Canton of Zürich Law under number   550.1) provides as follows: Article   3   –   Police duties “The police shall contribute to maintaining public safety and order by informing, advising, maintaining a visible presence and taking other appropriate measures. In particular, they shall take measures to a.   prevent the commission of criminal acts; ... c.   avert imminent threats to persons, animals, the environment, or property and put an end to the corresponding disruptions. If they find that offences have been committed, they shall conduct an investigation pursuant to Articles   306 et seq. of the Code of Criminal Procedure .” Article   21   –   Judicial identification measures “Where the performance of their duties so requires, the police may stop and question an individual, determine his or her identity and establish whether that individual is wanted, or whether his or her vehicle, other property or animals found in his or her company are. The person stopped shall be required to provide information on his or her identity, present the identity and residence documents he or she is carrying and, to that end, open containers and vehicles. ...” 36 .     The relevant provisions of the General Ordinance on the Zürich Municipal Police (published in the Compendium of Zürich Municipal By-laws under number   551.110) read as follows: Article   4   –   Conduct towards the police “Police orders must be followed.” Article   26   –   Criminal provisions “Breaches of the provisions of the present Ordinance or of municipal by-laws based hereon shall be punishable by a fine. In the event of a minor offence, a reprimand may be issued in lieu of a fine.” II.       DOMESTIC PRACTICE A.    Conditions for an identity check 37.     As to police stops simply for the purpose of an identity check, namely, the obligation to disclose one’s identity to a police officer and, if necessary, to show him or her a document establishing it, the Federal Supreme Court held, in a judgment of 6   July 1983 (ATF [Judgments of the Federal Supreme Court]   109   1a   146, point   4.b), that even if such a measure did not in itself amount to a very significant interference with personal freedom, it nevertheless constituted a direct intervention in the private sphere of individuals. It pointed out that this practice was therefore subject, in the same way as other control measures the police might impose, to the constitutional principles of public interest and proportionality. It followed that the police were not empowered to stop just any individual walking on the public highway or present in a public establishment, for no reason and in any circumstances whatsoever. It can thus be seen from the judgment that a verbal order to stop, together with a request for personal information or justifying documents, should not be vexatious or guided by a gratuitous sense of curiosity. In the Federal Supreme Court’s view, it would be unacceptable, for example, for certain law-abiding citizens to be systematically and regularly subjected to police checks under spurious or purely subjective pretexts. On the contrary, a police stop must be based on minimum objective grounds, such as the need to clarify a given situation, the presence of the person concerned in the vicinity of a place where an offence has just been committed, his or her resemblance to a wanted person, or his or her inclusion in a group of individuals one or more of whom can be suspected, on the basis of indications, however slight, of being in an illegal situation requiring police intervention. Reiterating that it was not required, in a case concerning the abstract review of a statute, to consider every particular case that could arise, the Federal Supreme Court merely pointed out that, although it was true that a citizen was required to comply with an order to stop the reasons for which were not immediately clear to him or her, this did not mean that he or she was then at the mercy of the authorities’ whims or discretionary power. The principle of proportionality required police officers to show consideration and courtesy towards those they stopped, to cause them as little unease as possible vis-à-vis the surrounding people, not to ask them unnecessary, intrusive questions and not to subject them to harassment. The Federal Supreme Court further clarified that under no circumstances should such measures go beyond what was strictly necessary to verify identity and that verbal affirmations, the truth of which could easily be confirmed on the spot, were sufficient when one had neglected to carry a justifying document. 38.     In a judgment of 30   September 2009 (ATF   136   I   87, point   5.2), the Federal Supreme Court, having been called upon to carry out an abstract review of several provisions of the Canton of Zürich Police Act, held that not every identity check was permitted under section   21(1) of that Act (see paragraph   35 above). Pointing out that the text of the provision itself stated that such a measure had to be necessary, the court held that, where such necessity was lacking, this immediately ruled out that an identity check could be regarded as lawful and consistent with the principle of proportionality. The concept of necessity, it clarified, entailed that specific circumstances had to obtain for the police to be justified in performing identity checks and that such checks could not be conducted without cause. It can be seen from the judgment that a check might be necessary, in particular, when the police’s attention was drawn by some particularity of a person, place or circumstance requiring an intervention. The Federal Supreme Court thus explained that an identity check had to be prompted or justified by objective reasons, particular circumstances, or specific grounds for suspicion, such as, for example, the need to clarify a given situation, a person’s presence in the vicinity of a place where an offence had been committed, an individual’s resemblance to a wanted person, grounds for suspicion in connection with an offence and other similar circumstances. In the Federal Supreme Court’s view, these were the elements entailed by the abstract condition that an identity check should be necessary for the discharge of police duties, while, conversely, the same condition precluded identity checks performed on the basis of mere pretexts, out of personal curiosity or on other spurious grounds. Lastly, the Federal Supreme Court held that, given the multiplicity of possible situations, a more detailed formulation, such as a list of examples, would be of little use and would not lead to greater precision, the crucial point being that police action should not go beyond what was necessary. Moreover, the court pointed out in this connection that the police were bound to show moderation and respect. 39.     In a case examined in the light of criminal procedure, the Federal Supreme Court found that the conditions for an identity check had been met in respect of a person who had been found in a place where drug-related offences regularly occurred, whom the police officers claimed to have “recognised” as a drug trafficker and who had turned out to be carrying cocaine (judgment   6B_1070/2018 of 14   August 2019, points   1.4 et seq.). B.    Obligation to comply with police orders 40 .     In its examination of cases concerning offences against public authority such as, in particular, violence or threats against the authorities and civil servants (Article   285 of the Criminal Code) or obstruction of an official act (Article   286 of the Criminal Code; see paragraph   33 above), the Federal Supreme Court has had occasion to hold that the only instance in which there was no obligation to comply with a police order was where the order in question was null and void. It pointed out in this connection that, in accordance with the public-law doctrine of “evidence” ( Evidenztheorie ), an order was null and void in the event of a serious, manifest, or at least easily identifiable irregularity, provided that such a finding did not seriously jeopardise legal certainty. According to the Federal Supreme Court, while an order could be declared null and void on account of particularly serious procedural or formal irregularities, having regard to the circumstances of the case in question, it was only very rarely that irregularities in its content entailed that it was null and void (judgments 6B_113/2007, point   2.5; 6B_393/2008, point   2.1; ATF 103 IV 73, point   6.b; and ATF 98 IV 41, point   4.b). C.    Prohibition of discrimination 41.     In keeping with the practice of the Federal Supreme Court, discrimination, within the meaning of Article 8 § 2 of the Constitution (see paragraph   31 above), means treating a person differently because they belong to a particular group which, historically or in present-day social reality, is or has been excluded or denigrated . It can be seen from the case-law of the Federal Supreme Court that discrimination consists in unequal treatment suffered by a person placed in a relevantly similar situation to that of another, aggravated by the fact that he or she is disadvantaged in a manner which, because it relates to a characteristic forming an essential part of that person’s identity which he or she cannot or cannot easily renounce, must be regarded as debasing or excluding him or her. The Federal Supreme Court has thus held that the prohibition of discrimination also concerns aspects of human dignity protected by Article   7 of the Constitution (ibid.). Furthermore, it has held that a regulation may have direct or indirect discriminatory effects, the latter corresponding to cases where the regulation, although it does not provide for differences in treatment to the detriment of specially protected groups, nevertheless places members of such a group at a particular disadvantage for no objective reason through the practical effects that it entails. Lastly, the Federal Supreme Court has pointed out that the prohibition of discrimination does not absolutely rule out the use of a prohibited criterion, since such a circumstance initially gives rise only to a presumption of unlawful discrimination, which can potentially be rebutted on special grounds (ATF 139 I 292, points   8.2.1 et seq., with further references). III.     RELEVANT INTERNATIONAL LAW AND PRACTICE A.    The International Convention on the Elimination of All Forms of Racial Discrimination 42.     Article   5 of the United Nations (UN) International Convention on the Elimination of All Forms of Racial Discrimination, which was adopted on 7   March   1966 and ratified by Switzerland on 29   November 1994, provides as follows: “In compliance with the fundamental obligations laid down in article   2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (a)     The right to equal treatment before the tribunals and all other organs administering justice; ... (d)     other civil rights, in particular : (i)     The right to freedom of movement and residence within the border of the State; ...” 43 .     In its General recommendation No.   36 of 17   December 2020 on preventing and combating racial profiling by law enforcement officials (CERD/C/GC/36), the UN Committee on the Elimination of Racial Discrimination (CERD) noted, in particular, that there was no universal definition of racial profiling in international human rights law (§   13). For the purposes of that recommendation, the concept was defined as the practice of police and other law enforcement relying, to any degree, on race, colour, descent or national or ethnic origin as the basis for subjecting persons to investigatory activities or for determining whether an individual was engaged in criminal activity (§   18). According to the Committee, racial profiling was linked to stereotypes and biases, which could be conscious or unconscious, and individual or institutional and structural. Stereotyping became a violation of international human rights law when stereotypical assumptions were put into practice to undermine the enjoyment of human rights ( §   20). 44.     The Committee also declared that the practice of racial profiling violated the fundamental principles of human rights (§   21). It clarified that States Parties were obliged to actively take steps to eliminate discrimination through their laws, policies and institutions (§   23) and that they were also to ensure that their domestic legal order contained adequate and effective mechanisms through which to assert that racial profiling had taken place and to bring such a practice to an end (§   24). Lastly, it stated that it was of paramount importance that national law enforcement officials were properly informed of their obligations and were sufficiently aware of how to avoid engaging in practices of racial profiling (§   25). 45 .     Concerning Switzerland, the CERD stated as follows in its Concluding observations on the combined tenth to twelfth periodic reports of Switzerland (CERD/C/CHE/CO/10-12, 27   December 2021): Racial profiling “19.     The Committee reiterates its concern regarding the persistence of racial profiling by the police and the lack of a law explicitly prohibiting that practice. It is also concerned by reports that the State party is not collecting sufficient statistics on racial profiling. While taking note of the information provided by the State party on the inclusion of some aspects of racial discrimination in police training, the Committee is nevertheless concerned at reports that this training is insufficient to effectively prevent racism and racial profiling by police officers (arts.   2, 4 and 5). 20.     Recalling its general recommendation No.   36 (2020), the Committee urges the State party to redouble its efforts to effectively counter the use of any and all practices by law enforcement officers that are based on racial profiling and to put an end to such practices by, in particular: (a)     Incorporating an explicit prohibition of racial profiling into its legislation, taking into account general recommendation No.   36, and adopting operational measures for that purpose, such as the introduction of forms on which the reasons for an identity check or any other police operation must be stated and the provision of information to victims on the available remedies; (b)     Formulating an action plan to combat racial profiling in consultation with the population groups most at risk of becoming victims of that practice with a view to preventing and countering it effectively by means of a range of measures that include the following: (i)     Strengthening of initial and ongoing training for police officers and members of other law enforcement agencies on the issues of racism and racial profiling; (ii)     Follow-up at the cantonal and federal levels of operational measures implemented to combat racial profiling and of regular audits conducted with the help of independent experts to address gaps in policies and organizational practices; (iii)     The introduction of an independent system for processing complaints related to racial profiling; (iv)     The compilation of disaggregated data on racial profiling, the regular publication of those data and their inclusion in the next periodic report. ” B.    The International Covenant on Civil and Political Rights and the UN Human Rights Committee 46.     The International Covenant on Civil and Political Rights, which was adopted on 16   December 1966 and ratified by Switzerland on 18   June 1992, provides as follows: Article   2 “1.     Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status . 2.     Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant. 3.     Each State Party to the present Covenant undertakes: (a)     To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; b)     To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c)     To ensure that the competent authorities shall enforce such remedies when granted.” Article   17 “1.     No one shall be subjected to arbitrary or unlawful interference with his priva