23/11/2022
Case Muhammad v. Spain. On the identity check of a Pakistani citizen by the police
This comment is about the Judgment of the European Court of Human Rights of 18 October 2022 (Case Muhammad v. Spain - application no. 34085/17).
Broadly speaking, the case originated when the police carried out an identity check on a Pakistani citizen in a street in the city of Barcelona where there are many robberies or thefts by pickpockets. The Pakistani national alleged that the check had been carried out on discriminatory grounds, in particular because of his darker skin colour. He also complained against the identity check because, in his view, the authorities did not sufficiently investigate his allegations of racial profiling by the police. The legal basis of the case is the violation of Article 14 of the European Convention on Human Rights (non-discrimination) in conjunction with Article 8 (right to privacy). As will be discussed, the European Court of Human Rights did not uphold the Pakistani citizen’s claims.
Case (Internet link source of the Judgment of the European Court of Human Rights of 18 October 2022 (Case Muhammad v. Spain - application no. 34085/17)
In 2013, a Pakistani national named Z. Muhammad was with a friend of the same nationality and ethnicity on a street in Barcelona where a lot of pickpocketing takes place, when a police patrol approached him to ask for identification. According to Mr. Muhammad, he asked the police officer if he was being asked for identification because of the colour of his skin, to which the police officer replied: “Yes, because you are black, and that’s all. I am not going to stop a German citizen.”. Following Mr. Muhammad’s protest, he was arrested and taken to police headquarters. According to Mr. Muhammad, his friend was also asked for his identity papers and he showed them to the police without any further consequences. According to the police report, the officers approached Mr. Muhammad after he had made fun of them, referring to them in disrespectful language when he was stopped. The police added that, 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?”. He was taken to the police station and released after showing his identity papers. There is no mention of the applicant’s friend in the police report of the day of the incident. However, the Spanish government's version of events was different from that of Mr. Muhammad: the Spanish Government stated that the applicant’s friend was not asked to show his identity papers because he had not made any offensive comments to the police. The judgment considered it 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”, and that the police officers then accompanied him to the nearest bus stop.
The day after the incident, Mr. Muhammad lodged a complaint with a Court of Justice with criminal jurisdiction, alleging, inter alia, unlawful detention, unlawful humiliation, and humiliation committed by an official lawfully inspecting a person’s documents. An investigation procedure was opened but was eventually closed. It should be noted that although attempts were made to locate Mr. Muhammad’s friend, they were unsuccessful. Nevertheless, Mr. Muhammad submitted a sworn statement of his friend’s testimony, given as an affidavit before a notary, in which he had confirmed the applicant’s account of the facts. Furthermore, no relevant video footage could be found despite a request to that effect from the first court hearing the case. The applicant did not lodge any further appeals, and the decision to discontinue the criminal proceedings became final.
In addition to the criminal proceedings, and while these were ongoing, Mr. Muhammad also filed an administrative complaint or proceeding in the form of a State liability claim, alleging that the identity check had been discriminatory. However, in 2014, this complaint was closed by the administrative authorities due to lack of evidence of discriminatory treatment. Subsequently, Mr. Muhammad filed an appeal against this decision before the Administrative Courts of Justice, and it was dismissed in 2015. 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 hadnot been no wrongdoing in the request for the identification of the applicant, but that it 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.
Mr. Muhammad turned to the European Court of Human Rights claiming discriminatory treatment in the course of an identity check and the obligation by the ECHR to investigate possible racist motives for this check, which also amounted to interference with his right to privacy under Article 8 of the Convention. The Court found that the applicant’s claims need only be examined under Article 14 (non-discrimination),read in conjunction with Article 8 (respect for the right to privacy) of the European Convention on Human Rights.
Decision of the court:
1. As to whether the application may be admissible for prosecution, the European Court of Human Rights acknowledged that an identity check carried out by the police in a public space, based, according to the applicant, on the dark colour of his skin and thus on racial grounds, may affect Article 14 of the Convention in conjunction with the applicant's right to privacy, affecting his psychological integrity and ethnic identity, within the meaning of Article 8 of the European Convention on Human Rights.
2. With regard to the applicant’s claim concerning the failure of the national authorities to act in order to carry out an effective investigation, the European Court makes the following considerations: in cases involving allegations of discrimination on grounds of race, a special duty of investigation arises on the part of the authorities, in particular, according to the Court, when state authorities investigate violent incidents, there is an additional obligation to identify whether ethnic prejudice may have played a role. This responsibility on the part of the authorities is all the more important when such attitudes are displayed not by private individuals but by State agents. On these grounds, the European Court ruled that no violent incident had occurred in the case before it: “He was merely requested to show his identity documents – something which he was, like anyone else in Spain, required to do under the law”. Moreover, the European Court of Human Rights confirmed that an administrative procedure was conducted in which Mr. Muhammad’s allegations had been examined and rejected.
3. With regard to the complaint concerning the allegedly discriminatory motives for the police check and detention of the applicant, the European Court of Human Rights found that the applicant relied heavily on the fact that no one else belonging to the “majority Caucasian population” had been stopped in the same street immediately before, during or after his identity check. However, for the Court, this cannot be considered as evidence per se of a racial motivation behind the request to show his identity papers. The Court further noted that the applicant hadhas not succeeded in showing any surrounding circumstances which could suggest that the police were carrying out identity checks motivated by animosity against citizens who shared the applicant’s ethnicity, or which could give rise to the presumption required to reverse the burden of proof at the domestic level as to the existence of any racial or ethnic profiling.
Also of interest is the Court’s doctrine regarding the use of statistics on identity checks provided by both the applicant and the Spanish Government. The Court says that such statistics must appear reliable and meaningful upon critical examination in order to be considered adequate as evidence, but that the Court’s sole concern is to determine whether the requirement for the applicant to identify himself on the street was motivated by racism. This is something that the Court has failed to find and therefore it considers that there has been no violation of Article 14 in relation to Article 8 of the European Convention on Human Rights.
To conclude, I believe that this is an interesting judgement as it assesses whether the “individual” identity check of a Pakistani national was racially motivated. The applicant’s failure to provide evidence of such motivation is among the reasons for having his claim rejected. However, it is worth noting that identity checks may not only violate Article 14 of the Convention on the prohibition of discrimination, but may also interfere with the personal privacy of individuals insofar as their dignity, public standing, psychological integrity or ethnic identity may be affected. It is also noteworthy that the public authorities are charged with undertaking further investigations (in particular, to “identify whether ethnic prejudice may have played a role” in the police action) when the complaint is based on allegations of racial discrimination, although it seems that in the area of identity checks these additional obligations are linked to any violence being involved. In any case, it is not a unanimous judgement, as several judges expressed their disagreement with the judgement in several dissenting opinions.
Case (Internet link source of the Judgment of the European Court of Human Rights of 18 October 2022 (Case Muhammad v. Spain - application no. 34085/17)
In 2013, a Pakistani national named Z. Muhammad was with a friend of the same nationality and ethnicity on a street in Barcelona where a lot of pickpocketing takes place, when a police patrol approached him to ask for identification. According to Mr. Muhammad, he asked the police officer if he was being asked for identification because of the colour of his skin, to which the police officer replied: “Yes, because you are black, and that’s all. I am not going to stop a German citizen.”. Following Mr. Muhammad’s protest, he was arrested and taken to police headquarters. According to Mr. Muhammad, his friend was also asked for his identity papers and he showed them to the police without any further consequences. According to the police report, the officers approached Mr. Muhammad after he had made fun of them, referring to them in disrespectful language when he was stopped. The police added that, 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?”. He was taken to the police station and released after showing his identity papers. There is no mention of the applicant’s friend in the police report of the day of the incident. However, the Spanish government's version of events was different from that of Mr. Muhammad: the Spanish Government stated that the applicant’s friend was not asked to show his identity papers because he had not made any offensive comments to the police. The judgment considered it 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”, and that the police officers then accompanied him to the nearest bus stop.
The day after the incident, Mr. Muhammad lodged a complaint with a Court of Justice with criminal jurisdiction, alleging, inter alia, unlawful detention, unlawful humiliation, and humiliation committed by an official lawfully inspecting a person’s documents. An investigation procedure was opened but was eventually closed. It should be noted that although attempts were made to locate Mr. Muhammad’s friend, they were unsuccessful. Nevertheless, Mr. Muhammad submitted a sworn statement of his friend’s testimony, given as an affidavit before a notary, in which he had confirmed the applicant’s account of the facts. Furthermore, no relevant video footage could be found despite a request to that effect from the first court hearing the case. The applicant did not lodge any further appeals, and the decision to discontinue the criminal proceedings became final.
In addition to the criminal proceedings, and while these were ongoing, Mr. Muhammad also filed an administrative complaint or proceeding in the form of a State liability claim, alleging that the identity check had been discriminatory. However, in 2014, this complaint was closed by the administrative authorities due to lack of evidence of discriminatory treatment. Subsequently, Mr. Muhammad filed an appeal against this decision before the Administrative Courts of Justice, and it was dismissed in 2015. 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
Mr. Muhammad turned to the European Court of Human Rights claiming discriminatory treatment in the course of an identity check and the obligation by the ECHR to investigate possible racist motives for this check, which also amounted to interference with his right to privacy under Article 8 of the Convention. The Court found that the applicant’s claims need only be examined under Article 14 (non-discrimination),read in conjunction with Article 8 (respect for the right to privacy) of the European Convention on Human Rights.
Decision of the court:
1. As to whether the application may be admissible for prosecution, the European Court of Human Rights acknowledged that an identity check carried out by the police in a public space, based, according to the applicant, on the dark colour of his skin and thus on racial grounds, may affect Article 14 of the Convention in conjunction with the applicant's right to privacy, affecting his psychological integrity and ethnic identity, within the meaning of Article 8 of the European Convention on Human Rights.
2. With regard to the applicant’s claim concerning the failure of the national authorities to act in order to carry out an effective investigation, the European Court makes the following considerations: in cases involving allegations of discrimination on grounds of race, a special duty of investigation arises on the part of the authorities, in particular, according to the Court, when state authorities investigate violent incidents, there is an additional obligation to identify whether ethnic prejudice may have played a role. This responsibility on the part of the authorities is all the more important when such attitudes are displayed not by private individuals but by State agents. On these grounds, the European Court ruled that no violent incident had occurred in the case before it: “He was merely requested to show his identity documents – something which he was, like anyone else in Spain, required to do under the law”. Moreover, the European Court of Human Rights confirmed that an administrative procedure was conducted in which Mr. Muhammad’s allegations had been examined and rejected.
3. With regard to the complaint concerning the allegedly discriminatory motives for the police check and detention of the applicant, the European Court of Human Rights found that the applicant relied heavily on the fact that no one else belonging to the “majority Caucasian population” had been stopped in the same street immediately before, during or after his identity check. However, for the Court, this cannot be considered as evidence per se of a racial motivation behind the request to show his identity papers. The Court further noted that the applicant had
Also of interest is the Court’s doctrine regarding the use of statistics on identity checks provided by both the applicant and the Spanish Government. The Court says that such statistics must appear reliable and meaningful upon critical examination in order to be considered adequate as evidence, but that the Court’s sole concern is to determine whether the requirement for the applicant to identify himself on the street was motivated by racism. This is something that the Court has failed to find and therefore it considers that there has been no violation of Article 14 in relation to Article 8 of the European Convention on Human Rights.
To conclude, I believe that this is an interesting judgement as it assesses whether the “individual” identity check of a Pakistani national was racially motivated. The applicant’s failure to provide evidence of such motivation is among the reasons for having his claim rejected. However, it is worth noting that identity checks may not only violate Article 14 of the Convention on the prohibition of discrimination, but may also interfere with the personal privacy of individuals insofar as their dignity, public standing, psychological integrity or ethnic identity may be affected. It is also noteworthy that the public authorities are charged with undertaking further investigations (in particular, to “identify whether ethnic prejudice may have played a role” in the police action) when the complaint is based on allegations of racial discrimination, although it seems that in the area of identity checks these additional obligations are linked to any violence being involved. In any case, it is not a unanimous judgement, as several judges expressed their disagreement with the judgement in several dissenting opinions.
