MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-16

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-16 Basu v. Germany (Application No. 215/19) Supervision of the execution of the European Court’s judgments Reference document DH-DD(2024)1100

 

Application	Case	Judgment of	Final on	Indicator for the classification
215/19	BASU	18/10/2022	18/01/2023	Complex problem

Case description

This case concerns the authorities’ failure to take all reasonable measures to ascertain through an independent body that an effective investigation was carried out by the state authorities into the applicant’s arguable allegation of racial profiling during an identity check by the federal police in 2012 (violation of Article 14 in conjunction with Article 8).

The Court found that the internal investigation carried out by the superior police authority to the Dresden Office of the Federal Police, for which the police officer who had conducted the check worked, was not independent in view of the hierarchical and institutional connections between the investigating authority and the state agent (§ 36). As regards the proceedings before the Dresden Administrative Court and the Saxony Higher Administrative Court, the Court noted that those courts “despite an arguable claim that the applicant may have been the victim of racial profiling, […] failed to take the necessary evidence and, in particular, failed to hear the witnesses who had been present during the identity check. They dismissed the applicant’s action on formal grounds, taking the view that he did not have a legitimate interest in a decision on the lawfulness of his identity check” (§ 37). 

Status of execution

After two action plans, the authorities submitted an action report on 30 September 2024
(DH-DD(2024)1100), which is summarised below.

Individual measures

The applicant did not submit a claim for just satisfaction to the European Court. Under domestic legislation, a request for reopening of a case may be brought following a judgment by the Court finding a violation of the Convention. The applicant did not make such a request within the statutory period.

General measures

a)     Scope of the required execution measures

The authorities underline that the Court based its finding of a breach of the Convention on the analysis that neither the internal investigation of the Federal Police nor the proceedings before the administrative courts fulfilled the requirements for effective investigation of the applicant’s arguable claim of racial discrimination. In particular, as regards the proceedings before the administrative courts, the Court noted that they “dismissed the applicant’s action on formal grounds, taking the view that he did not have a legitimate interest in a decision on the lawfulness of his identity check” (§ 37).

In the view of the authorities, a breach of the Convention thus could have been avoided if the administrative courts had examined the merits of the applicant’s claim and had taken the necessary evidence. The authorities stress that the Court’s judgment therefore cannot be read in the sense that its implementation imperatively requires “independent investigations” (within the meaning of the Court’s case law) at the level of the Federal Police or even the creation of an external investigation unit. It is their understanding that the requirement of “independent investigations” can be fulfilled by different forms of proceedings, be it (1) internal investigations at the level of the police; (2) criminal investigations; or (3) proceedings before an administrative court.

b)    Change of domestic case-law

As regards the examination by the administrative courts and the admissibility of actions against identity checks carried out by the police in cases regarding claims of racial profiling, the authorities submit that since the time of the facts of the case, there have been significant developments in the case-law.

Most importantly, in a recent judgment albeit unrelated to identity checks, the Federal Administrative Court clarified that, in cases of terminated measures with an only short-term impact (such as identity checks), the necessary legitimate interest (cf. Basu, § 8) to have a court decide on the merits of the claim can be considered present, in particular, where there has been a qualified infringement of fundamental rights.[1] It explicitly referred to the Court’s Basu judgment and held that discrimination in the context of identity checks based on ethnic characteristics (racial profiling) constituted a particularly severe infringement which required administrative courts to consider the facts and allegations of the case on its merits.[2]

In addition, the authorities refer to numerous further administrative courts’ judgments (pre-dating the above mentioned Federal Administrative Court judgment) from across seven Länder, including the Higher Administrative Courts of Baden-Württemberg, Hamburg, Lower Saxony, North-Rhine-Westphalia, Rhineland-Palatinate, Bavaria and Saarland as well as the Dresden Administrative Court, that is the court which rendered the impugned inadmissibility decision that led to the Basu judgment.[3] In all these cases, the courts confirmed the existence of a legitimate interest in cases of identity checks and the cases were heard on the merits. In several cases, the identity checks were found to be unlawful.

No court decision is known to the authorities where a court declared such a claim inadmissible because of a lack of legitimate interest.The authorities underline that from today’s perspective the impugned inadmissibility decision in the present case has to be seen as an isolated and outdated court decision. Today, the admissibility of such actions can be considered as the rule, thereby preventing similar violations in the future. Similar lines of reasoning have not been used by courts in the last eight years (since the impugned court decisions eight years ago leading to the Basu judgment) and are not to be expected in the future.

In light of the developments of domestic case-law as well as the publication and dissemination of the judgment, the authorities conclude that all necessary general measures have been taken to prevent similar violations in the future.

c)     Additional measures

The authorities highlight that, in addition, they have taken, or are in the process of taking, measures going beyond the scope of the judgment, which will contribute to effectively investigating and preventing incidents of alleged racial profiling in the future.

On 5 March 2024, a new law establishing the office of the Parliamentary Commissioner for the Federal Police Authorities came into force. The aim of its establishment was to create a body outside the structures of the federal police authorities, which is fully independent and not bound by instructions in the exercise of its duties. Both citizens and employees of the police authorities have the right to address themselves to the Parliamentary Commissioner to report alleged individual misconduct or possible structural irregularities and to have them investigated and evaluated. The Parliamentary Commissioner can also act on his own initiative and may conduct investigations in parallel with possible disciplinary, criminal and other proceedings. The Parliamentary Commissioner has a range of investigatory powers, including the right to access files, offices and premises of the federal police authorities at any time without prior notification.

On 15 March 2024, the first Commissioner took up his duties. During his first 100 days as Commissioner, he received 133 submissions in total: 109 by citizens concerning alleged inappropriate behaviour of police officers, including also allegations of racial profiling in the context of identity checks; and 24 by police officers. The Commissioner has asked the federal police departments concerned to comment on the allegations or to provide further information about the facts.

Moreover, a comprehensive reform of the Federal Police Act is underway. A draft law that proposes amendments to relevant provisions concerning the issue of racial profiling and identity checks is currently pending before the Bundestag (the Federal Parliament) (see DD-DH(2024)1100 para. 26 for details).

Lastly, the topics of human rights, prevention of racial discrimination, as well as the legality of police measures, are essential parts of the vocational training and police training of all career groups of the Federal Police and are taught in an interdisciplinary manner. To maintain and expand the knowledge acquired, regular and ad hoc training courses and seminars are provided, including with lecturers from civil society organisations.

d)    Rule 9.2 communication

In its communication of 9 October 2024 (DH-DD(2024)1202-rev), the German Institute for Human Rights (Deutsches Institut für Menschenrechte) recognises the improvements resulting from recent case-law developments. However, following a review of that case-law, the institute is concerned that the administrative courts are not well prepared to effectively examine allegations of racial profiling. The institute questions the authorities’ premise that admissibility decisions do per se demonstrate an effective examination of the merits. The institute acknowledges that, as reported by the authorities, since the facts of the present case, none of the domestic complaints regarding allegations of racial profiling during identity checks were deemed inadmissible.[4] Nevertheless, the merits of such allegations still were not necessarily always examined when assessing the lawfulness of the identity check. In the legal proceedings in respect of  four of the 13 complaints reviewed by the institute, the administrative courts either stated that they did not consider these allegations relevant for their decisions, or they did not even mention them in their reasoning. Since 2022 though, the administrative courts have, when examining such claims on the merits, always explicitly examined allegations of racial profiling. The institute however finds it problematic that the courts based their assessment to a significant extent on testimonies of police officers involved in the checks.

The institute also welcomes the establishment of the Federal Police Commissioner (and similar independent police complaint mechanisms in several federal states). The institute is, however, concerned that the draft amendments to the Federal Police Act still does not prohibit racial profiling.

In their reply of 18 October 2024 (DH-DD(2024)1202-rev), the authorities reiterate their view that the change in practice of domestic administrative courts (see above for details) is adequate to fulfil the obligations flowing from Article 46 of the Convention. Additionally, they underline, among other things, that the reform of the Federal Police Act goes beyond the scope of the judgment and provide additional information as regards the capacity of the Parliamentary Commissioner for the Federal Police Authorities to thoroughly examine complaints by citizens about alleged racial profiling by police officers.

Analysis of the Secretariat

Individual measures

The applicant did not avail himself of the possibility to request a reopening of his proceedings following the Court’s judgment. He also had not submitted a claim for just satisfaction. No further individual measures are necessary.

General measures

The Court found a procedural violation of Article 14 in conjunction with Article 8 of the Convention. The Secretariat agrees with the authorities in their analysis that this violation could have been avoided if the domestic courts had heard the applicant’s claim on the merits or, alternatively, if an investigation had been carried out by an investigating authority with the adequate independence from the police authority where the concerned police officers worked.

Following the Federal Administrative Court’s judgment of 24 April 2024, similar allegations of racial profiling during identity checks shall be heard on their merits by all domestic administrative courts. Moreover, administrative courts have indeed heard similar complaints on the merits already since 2015. The domestic administrative courts thus aligned their case-law with the Convention requirements already prior to the Federal Administrative Court’s ruling, thereby effectively preventing similar violations.

As to the German Institute for Human Rights’ concern that administrative courts are not well prepared to effectively examine allegations of racial profiling, as the examination by the lower administrative courts might not be of a quality ensuring effective investigations into such allegations, it is underlined that the violation found by the Court in Basu was based on the decision of the domestic courts not to allow any assessment on the merits by declaring the applicant’s claim inadmissible. It did not concern the concrete assessment made by the domestic courts of alleged racial profiling during identity checks.[5] The manner in which the administrative courts examine the merits of such claims goes beyond the source of the violation identified by the Court in Basu and therefore falls out of the scope of this judgment (as also emphasised by the authorities in their reply to the Rule 9.2 submission).

While noting that the developments in domestic case-law appear to be adequate for the Committee to close its supervision of the Basu case, the following additional measures are worth pointing out:

-       the establishment of the Parliamentary Commissioner for the Federal Police Authorities is a very positive development, notably due to the role this institution can have in effectively investigating arguable allegations of racial profiling during identity checks;

-       the authorities’ continuous work on the prevention of discriminatory actions by German police forces, including by strengthening the already existing training programs to prevent potential cases of racial profiling.

Conclusion:

In light of the individual and general measures presented by authorities, the Committee may wish to close its supervision of the execution of this case.

Financing assured: YES