Update: 09.05.2018

Racial profiling: Federal Supreme Court upholds the judgement in the “Wa Baile” case

On 7 March 2018, the Federal Supreme Court upheld the conviction the Canton of Zurich Supreme Court of Mohamed Wa Baile by. On 5 February 2015, Mr. Wa Baile refused to present his papers during a police check in the main hall of the Zurich main train station on his way from the platform to his work place at the Zurich Federal Institute of Technology (ETHZ) during the morning rush hour at 7 a.m. because he considered the check to be conducted for racist motives.

In its verdict, the Federal Supreme Court rejected all of the defence’s complaints. The previous court had sufficiently justified its sentence, so an arbitrary assessment of evidence by it was not considered to be given. Mr. Wa Baile now wants to appeal the sentence before the European Court of Human Rights in Strasbourg.

What happened?

On Thursday 5 February 2015, Mr. Wa Baile was commuting by train from Bern, where he lives, to Zurich, where he works as a librarian at the Zurich Federal Institute of Technology (ETHZ). After getting off the train in Zurich at 7 a.m., Mr. Wa Baile was walking through the main hall of the railway station towards the exit with the stream of other commuters in the station at that time. While still in the main hall, he was picked from the crowd by two policemen and was the only person asked to identify himself. Mr. Wa Baile asked whether the policemen were looking for a person of colour. When they told him no, Mr. Wa Baile refused to show the police his Swiss passport. Instead he asked the police if they could imagine how it feels to be constantly stopped by the police.

When Mr. Wa Baile refused to tell the officers his name or to present his documents, the police searched his belongings. The police only let him go after they had found his OASI card. Mr. Wa Baile has experienced this kind of treatment for years: “I have been a Swiss citizen for ten years now, but I keep on being stopped by the police on the train, on my way to work, in the library, in the pharmacy in Bern or in front of the nursery where I pick up my children.” Generally, he accepts the humiliating public checks and does whatever the police tell him to without resistance. But he is tired of constantly having to prove that he is Swiss and not a drug dealer. Mr. Wa Baile has two small children and hopes that one day they will be able to live without being judged by their skin colour and will not view the police as opponents.

Police report and penalty order

By a criminal order on of 16 March 2015, Mr. Wa Baile was fined CHF 100 (including costs and expenses) for not following police instructions. The penalty order was based on the police report in which the police officer used Mr. Wa Baile’s skin colour and gender and the fact that he was looking away as enough justification to stop.

In this report, the officer wrote that “during his patrolling activities he noticed a dark-skinned male. This person (later identified as Mr. Wa Baile) seemed suspicious. He averted his gaze when he recognised me as a police officer and wanted to pass by me. Since a Foreign Nationals Act (FNA) violation was possible, I decided to check Mr. Wa Baile’s identity.

Mr. Wa Baile decided to contest the penalty order: “I would like to protest against the fact that myself and other people of colour are constantly under general suspicion and are stopped by the police. I want to commit myself to a Switzerland in which all citizens are treated equally.” According to lawyer and discrimination expert Tarek Naguib, the penalty order has a strong symbolic power and represents the fact that Mr. Wa Baile and his supporters will not be deterred, no matter how high the hurdles are. The additional importance of criminal procedures is that this is how the issue gains the necessary attention, making the general public aware of the problem and to empower other affected persons to advocate for themselves.

Proceedings before the Zurich City Court office

The hearing before the Zurich City Court office took place on 30 November 2015. The town judge had to clarify the question whether or not the identity check had taken place because a sufficient initial suspicion had existed and whether the identity check had thus been legitimate. Because of the uncertain legal situation, the responsible town judge transferred the case to the Zurich District Court.

Below you will find some excerpts from the verbatim record of Mr. Wa Baile and Mr. Meier (name changed), the police officer mainly involved:

Mohamed Wa Baile:

“I wonder what the criteria was to single me out (…).”

“If the police had been looking for a person of colour, I would have accepted the fine. But just because – according to the report - I supposedly averted my gaze, I do not have to accept a fine. (...) Is it not normal that a person who does not want to start an interaction with another person simply looks away? (...) I did not behave any differently than usual (...).”

“These repeated checks. How would you feel? I am also just a human, a father, but with a dark complexion (…).”

“All my colleagues and friends with dark skin have experienced similar situations, but none of my light-skinned friends (…).”

“It is also important for me that I personally do not consider Mr. Meier (name changed) to be a racist, it’s a problem with the institution (…).”

Police officer Meier (name changed):

“My perception was that the gaze might have been averted because the person had something to hide or he was uncomfortable. This was the crucial motive for me to perform an identity check (...).”

“The fact that he averted his gaze is a detail that I cannot recall so well today. But if I wrote it in the report, this must have been the way it was (...).”

“We only carry out identity checks if necessary. The colour of a person’s skin is not a motivation for a check.”

“I have been a police officer for seven and a half years. In all this time, this was the only identity check during which a person refused to identify himself even though he was told that he was obliged to by law. I think this indicates that I do not perform any racially-motivated checks.”

The police officer did not answer the question about how many other persons may have averted their gaze.

The judgement of the Zurich District Court

AOn 7 November 2016, Mr. Wa Baile was sentenced by the Zurich District Court in the first instance. The single judge emphasised that he only had to rule on not following the instructions of the police and was not going to evaluate whether or not the Zurich city police was institutionally infested with racism. The summary penalty order was warranted since refusing a police request is only permitted in an absolutely exceptional situations. According to the Federal Supreme Court practice, a police order should be complied with, even if it is unlawful. A person who has been stopped only has the right to oppose it if the police arrest is null and void (cf. Federal Supreme Court verdicts BGE 6B_393/2008, 6B 395/2008/sst E.2.1 / BGE 132 II 342 E. 2.1).

According to the practice of the Federal Supreme Court, nullity may be assumed only if the deficiency is particularly grave and is not obvious straight away. Possible reasons for nullity are mainly procedural and formal deficiencies especially if the authority or the official is not competent on objective or local grounds to perform the respective action. This high threshold is considered to be essential in order to guarantee smooth functioning and to protect government authorities.

The single judge also ruled that the police officer’s statement was credible and that the reason for the control had not been Mr. Wa Baile’s skin colour. Thus, the identity check had no serious deficiency.

The Cantonal Supreme Court and the Federal Supreme Court both confirm the judgement

On 25 August 2017, the Zurich Cantonal Supreme Court upheld the judgement of Mr. Wa Baile. Since the Zurich main station is highly trafficked, a greater number of delinquency is to be expected. No excessive requirements should be put on these police operations. The Zurich Cantonal Supreme Court confirmed the view of the previous court according to which the police officer did not give any indication that he was performing the check for obvious discriminatory reasons.

This judgement was upheld by the Federal Supreme Court on 7 March 2018. Within the framework of its limited cognition, the court examined whether or not the Zurich District Court had assessed the evidence arbitrarily and the Zurich Cantonal Supreme Court had thus unjustly negated arbitrariness. The Federal Supreme Court stated that it was incomprehensible why the police officer’s statements should be considered as contradictory and therefore incredible. The court considered it credible that the police officer could no longer recollect all details of the identity check at the time of his interview.

Furthermore, the Federal Supreme Court stated that the criticism of the complainant was based mainly on the assumption that he had been checked in the first place because he had averted his gaze. It was found that he neglected the relevant general context. The situational factors, especially the specific circumstances defined by the previous court, namely the fact that as a busy regional and long-distance travel hub, the Zurich main station is a place where higher delinquency may occur and must to be taken into account. The Federal Supreme Court supported the conclusion of the previous court that “there is no reason to believe that the identity check was conducted solely because of skin colour.”

The Federal Supreme Court also dismissed the complaint that the principle of legality had been breached. Mr. Wa Baile claimed that the relevant standard for identity checks as defined in Art. 26 in connection with Art. 4 of the General Police Ordinance (AVP)
is defined in such an imprecise manner that the addressees cannot adjust their behaviour accordingly. In comparison, the Federal Supreme Court argued that Art. 4 APV clearly states that not following a police order is a criminal offence. It does not consider a detailed list of police regulations covered to be practical.

Criticism of the court’s opinion

The only conduct that was repeatedly and consistently stated by the police officer as reason for the identity check was the fact that Mr. Wa Baile looked away from him. This fact is also acknowledged by the Zurich Cantonal Supreme Court which states that “it can be assumed in favour of the accused that his evasive behaviour did not consist of avoiding the police officers by turning away physically, but only in turning away his eyes.” (Page 11)

However, looking away is no indication for a violation of the Foreign Nationals Act or an offence. It is merely normal human behaviour of commuters at 7 a.m. in a highly trafficked area.

In addition, the police officer repeatedly emphasised during the proceedings that the person he checked was a man with dark skin. This clearly gives rise to the suspicion that the actual reason for stopping Mohamed Wa Baile was his dark skin. Identity checks on the basis of skin colour for the purpose of migration control cannot be objectively justified and do clearly represent a violation of the international and national principle of non-discrimination.

The guiding question for police action should always be: “Would the police officer conduct the same identity check if the person or group of persons was considered to be ‘white’?” If a certain behaviour is considered suspicious when a person of colour does it and the same behaviour is considered normal when a white person does it, this is a case of racial discrimination which has to be invalidated by the police. This so-called reduction of the standard of proof of discrimination to credible evidence followed by a reversal of the burden of proof has recently been supported by the Higher Administrative Court of Rhineland-Palatinate in Germany in a landmark decision in a case of racist profiling.

In addition, a reversal of proof is also provided by the practice of international law as long as a strong presumption of discrimination can be assumed due to the circumstances. In the present case, the police officer could not rebut the presumption of racial discrimination since there was no other comprehensible reason for the identity check except for the colour of Mr. Wa Baile’s skin. This means that this is a clear violation of the ban on discrimination as defined in international and constitutional law. As a result, the court would have at least had to verify whether or not the identity check was null and void because it was based on a grave intrinsic flaw. It that was the case, Mr. Wa Baile would have been within his rights to refuse to be checked.

The Zurich District Court, the Zurich Supreme Court and now even the Federal Supreme Court violated the “in dubio pro reo” principle since they interpreted the facts in a biased way and not according to the rules of national and international jurisdiction on the assessment of evidence. Mr. Wa Baile is now taking an appeal to the European Court of Human Rights.

The administrative procedure was suspended

In addition to the criminal proceedings, Mr. Wa Baile filed an administrative review proceeding with the support of Tarek Naguib, his defense attorney and a lawyer and discrimination expert. This is governed by the Administrative Procedure Act (Art. 25a lit. c APA) and is aimed at the subsequent assessment of unlawfulness of public action.

From a legal perspective, the double approach is justified because the prerequisites for the punishability of Mr. Wa Baile’s actions do not match the unlawfulness of the control.

In its verdict on 7 March 2018, the Federal Supreme Court confirmed that Mr. Wa Baile was rightly sentenced. But given the upcoming administrative procedure, this decision has no effect. First, the Federal Supreme Court stated that it is not Art. 215 of the Criminal Procedure Code but the Canton of Zurich Police Act and thus administrative law that deals with such identity checks. Therefore the whole check is not a prosecution measure but rather a security police measure and thus an administrative act. For this reason, it would be illegal to terminate administrative procedures.

Second, the criminal procedure only recorded that the identity check was not obviously null and void and that Mr. Wa Baile should have followed police instructions. The key issue of whether or not the check had been lawful or not with regard to the ban on discrimination according to Art. 8 of the Federal Constitution was not examined in depth. This must now be done in the administrative procedure.

According to Tarek Naguib, the administrative procedure also has a political dimension: “Mr. Wa Baile turned the tables – the administrative procedure clearly demonstrates the issue.” Here, it is not the applicant but the state which is on trial.

Alliance against racial profiling

Mr. Wa Baile is supported by the Alliance against Racial Profiling, an association of activists, creative artists, scientists, people of colour and fellow citizens fighting against racially-motivated checks and the behaviour of Swiss police forces.

Older media reports on the Wa Baile case

The Wa Baile case was discussed in many media and triggered a widespread debate. Namely TagesAnzeiger, Berner Zeitung, Der Bund, NZZ am Sonntag, and public Swiss radio and television stations reported on the case and the underlying problems.

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