Basu v. Germany (Application no. 215/19)

A selection of key paragraphs can be found below the judgement.

35.  In the light of the above elements, the Court considers that once there is an arguable claim that the person concerned may have been targeted on account of racial characteristics and such acts, under the threshold conditions set out above (see paragraphs 21 et seq. above), fall into the ambit of Article 8, the authorities’ duty to investigate the existence of a possible link between racist attitudes and a State agent’s act is to be considered as implicit in their responsibilities under Article 14 of the Convention also when examined in conjunction with Article 8. This is essential in order for the protection against racial discrimination not to become theoretical and illusory in the context of non-violent acts falling to be examined under Article 8, to ensure protection from stigmatisation of the persons concerned and to prevent the spread of xenophobic attitudes. 

36.  In determining whether, in the present case, the State authorities complied with their obligation to take all reasonable measures to identify whether there were racist motives for the identity check, the Court observes that in the Government’s submission, the superior police authority to the Dresden Office of the Federal Police, for which the police officer P., who had conducted the check, worked, had carried out an internal investigation into the incident. However, in view of the hierarchical and institutional connections between the investigating authority and the State agent which carried out the act in question, the investigations in this regard cannot be considered as independent (compare paragraph 33 above). 

37.  As for the proceedings before the administrative courts, the Court notes that those courts declined to examine the merits of the applicant’s complaint about having been treated in a discriminatory manner by the identity check. Despite an arguable claim that the applicant may have been the victim of racial profiling, they failed to take the necessary evidence and, in particular, failed to hear the witnesses who were present during the identity check (see paragraph 7 above). They dismissed the applicant’s action on formal grounds, considering that the applicant did not have a legitimate interest in a decision on the lawfulness of his identity check (see paragraphs 7 and 8 above). 

38.  In these circumstances, the Court must conclude that the State authorities failed to comply with their duty to take all reasonable measures to ascertain through an independent body whether or not a discriminatory attitude had played a role in the identity check, and thus failed to carry out an effective investigation in this regard. Therefore, the Court is unable to make a finding as to whether the applicant was subjected to the identity check on account of his ethnic origin. 

39.  There has accordingly been a violation of Article 14 of the Convention taken in conjunction with Article 8.