The case of Mohamed Wa Baile against Switzerland was important for the foundation of the Alliance against Racial Profiling. It involves two legal cases that have been dragged through all domestic instances to the European Court of Human Rights and are currently pending there. A ruling from the Court is not expected before 2023. The strategic goal of the legal case is to mobilize people to use their means to resist state racism by the police and judiciary and to make sure that society is looking.
You can find more and detailed information about the facts, the legal process as well as the resistance and the global relevance of the case on top of the picture under the respective menu items. For a more in-depth discussion, we also recommend the documentation by humanrights.ch on the case Wa Baile.
In February 2015, Mohamed Wa Baile was stopped by three police officers at Zurich train station. He was on his way to the Swiss Federal Institute of Technology (ETH), where he worked as a librarian at the time. No other commuters were stopped. Wa Baile asked the policemen why they had stopped him but none of the other commuters. The policemen did not answer, but repeatedly demanded that he show them his ID. Because Mohamed Wa Baile was not given a comprehensible reason for the stop, he refused to show the ID. He felt the check was racist.
The police searched Wa Baile's belongings. Wa Baile refused to answer the questions that racialized people always face: What is your name, where are you from, where are you going? Only when the police officers found his social security card in his jacket did they let him go.
Mohamed Wa Baile knows this experience of being stopped and checked by the police very well. Since he has been living in Switzerland, now for over 20 years, he has been regularly checked by the police because he is black. The checks have taken place at train stations, on trains, in front of a library, in front of a pharmacy and even in front of his children's daycare center. After years of these experiences, Wa Baile decided he would no longer put up with racist police stops. And he decided to resist.
Because Mohamed Wa Baile refused to comply with police orders, he was fined 100 francs on March 16, 2015. It says: "On the occasion of the patrol activity, a dark-skinned male person (later known as M. Wa Baile) attracted the suspicion of the police. This was due to the behavior of the person (M. Wa Baile turned his gaze away from me when he recognized me as a police officer and wanted to pass me). Since the suspicion of an AuG offense (violation of the Aliens Act) was imminent, I decided to subject M. Wa Baile to a personal check."
Mohamed Wa Baile, with the support of the Alliance against Racial Profiling, defended himself through all instances up to the European Court of Human Rights. The Alliance Against Racial Profiling was officially founded in April 2016.
Mohamed Wa Baile's legal battle against Switzerland began with a fine in March 2015. Wa Baile was fined 100 francs after refusing to identify himself in February. He decided to challenge this penalty order at the Zurich Municipal Magistrate's Office or made an appeal after unsuccessfully asking for support at several contact points against racism. Due to the uncertain legal situation, the competent municipal judge referred the files to the Zurich District Court for assessment by order of March 30, 2016.
Originally, Mohamed Wa Baile did not want to take legal action against the fine. It was important to him above all that the responsible police officer admits his mistake and that the police leadership finally acknowledges that it must take responsibility for its institutional racism. But when the Federal Commission against Racism and the Ombudsman's Office in Zurich told him that the chances were slim that the police would admit their mistake, he decided to take legal action against them with the support of the Alliance against Racial Profiling.
On November 7, 2016, Mohamed Wa Baile was then convicted by the Zurich District Court in the first instance. The single judge ruled that the penalty order was lawful, as the refusal of a police order is only permissible in absolutely exceptional situations. According to the practice of the Federal Supreme Court, a police order must be obeyed even if it is unlawful. Only if a police stop is null and void does the person stopped have the right to defend himself against it. Humanrights.ch has documented the entire proceedings in detail.
The competent judge of the Zurich District Court also considered the statement of the police officer, according to which the skin color was not decisive for the control, to be credible. For Mohamed Wa Baile, his lawyer and the Alliance Against Racial Profiling, however, the matter was clear. The court had not seriously addressed the question of whether there was a violation of the prohibition of discrimination under international and constitutional law - and thus also a serious material defect that renders the control null and void. They therefore decided to file an appeal against this with the Zurich High Court. Parallel to the criminal proceedings, they initiated administrative proceedings.
In both proceedings, the argument was the same. It was explained in detail that the black skin color of Mohamed Wa Baile was very likely the reason for the control. In addition, his male gender and relatively young age also played a role. In the justification of the penalty it says: "On the occasion of the patrol activity, a dark-skinned male person (later known as M. Wa Baile) suspiciously caught the attention of the police officer conducting the protocol." In contrast, the police failed to explain what was suspicious about Mohamed Wa Baile's behavior.
The racism argument was qualified as unconvincing by the courts. After the Criminal Chamber of the Zurich High Court supported the verdict of the District Court and thus of the police, an appeal in criminal matters was filed before the Federal Supreme Court. Once again, however, the appeal was rejected.
In the second proceeding - the so-called administrative law proceeding - we also challenged the decision of the competent public law division at the Federal Supreme Court. The Zurich High Court did hold that averting one's gaze as the sole justification does not constitute a factual reason for a police check. At the same time, however, it also found that there was no discrimination. And here, too, the Federal Supreme Court, as the last Swiss court instance, supported the police and the lower courts.
Due to this disappointing total of 8 decisions in two proceedings, in which none of these legal instances had seriously dealt with the fundamental and human rights principles on the prohibition of discrimination, the Alliance against Racial Profiling decided to appeal twice to the European Court of Human Rights. These cases are currently pending and we expect the rulings in 2023 or 2024 at the latest, supported by so-called amicus curiae briefs from Amnesty International and the Open Society Justice Initiative. The international importance of the case far beyond Switzerland is also reflected in the fact that the European Court of Human Rights has classified it as a so-called impact case.
The legal case of Mohamed Wa Baile against Switzerland is a strategic case. From the beginning, Mohamed Wa Baile and the Alliance Against Racial Profiling were not primarily concerned with winning the case legally. Nor was it only about justice for Mohamed Wa Baile. Rather, since the idea for an Alliance Against Racial Profiling was founded in October 2015, we were concerned with using the legal process to mobilize as many people as possible across Switzerland to speak out against institutional racism in policing, to develop ideas and to stand up against it. At our first national meeting in April 2016 in Bern, it became clear that this is a shared goal of at least 50 people from different organizations working for social justice throughout Switzerland.
The fight against systemic and institutional racism, especially in policing, requires a lot of energy. For most people, the police represent safety, and it takes a lot of collective work to make the public aware that Black people, People of Color, and people who are read as "strangers" are being stopped and frisked. At the founding meeting of the Alliance Against Racial Profiling in the spring of 2016, it became clear that it takes resistance and the mobilization of many people to combat racist police violence. With the Wa Baile v. Switzerland trial, we want to show that it is worth taking action against racism - even if it means exposing ourselves to the full force of racism. Together we can strengthen each other and win.
One important initiative that emerged from the proceedings was a collaborative research group that conducted a comprehensive study involving interviews with Black people and People of Color who have experienced racial profiling in Switzerland. The goal of the study was to examine, document, and expose institutional racism in policing. The collaborative research group showed that the racial profiling experienced by Mohamed Wa Baile is not an isolated case, but an experience of many Black people and People of Color throughout Switzerland. In addition to this study, there were other numerous professional publications.
Another important initiative that came out of this case is the Direct Action group, which encourages people to observe obviously racist police stops and to intervene if necessary. A working group investigated the legal situation at the federal, cantonal and municipal levels. On this basis, we produced leaflets and information material to inform witnesses of police stops about their rights, risks and possibilities for action. We also conducted workshops on what an intervention could look like.
In addition to the collaborative research group and the direct action group, the Alliance Against Racial Profiling also established a trial monitoring group. This group documented and analyzed the court case of Mohamed Wa Baile. This allowed us to show that institutional racism occurs not only in policing, but also in the criminal justice system. Judges - in the case of Mohamed Wa Baile v. Switzerland, they were all men - have been unwilling to address the question of whether discrimination has occurred, and instead have been careful not to limit the powers of the police.
In the case of Mohamed Wa Baile, it's about all of us. He is far from the only one affected by racial profiling. And together, we are much stronger. Many of us know that, and that's why we joined together back then and continue to fight together today against racist police stops and racist police violence. The research group, the direct action group, and the trial monitoring group also organized tribunals in different cities where people could tell their stories of racial profiling and resistance. More people recognized the commonality of our experiences and were mobilized to take action. We are slowly but surely building power.
The racist police check of Mohamed Wa Baile took place at Zurich train station, one of the busiest train stations in Europe - on a weekday shortly after seven o'clock in the morning, at a time when many people are going to work. The aim of the police check was to verify whether Mohamed Wa Baile had the right to stay in Switzerland. This type of check can take place anywhere in the interior of any Schengen country and accounts for the largest proportion of daily police checks. This is one of the reasons why Mohamed Wa Baile's case against Switzerland, currently pending before the European Court of Human Rights, is important far beyond Switzerland.
Another reason why the case is relevant beyond the borders of Switzerland lies in the justification of the control by the police themselves: "A dark-skinned male person has come to the suspicious attention of the author. This is due to the behavior of the person (M. Wa Baile averted his gaze from me when he recognized me as a police officer and wanted to pass me)." This quote and the court records in detail show that the police officer who initiated the stop did not have a racist intent. Rather, it is clear that it was unconsciously racially motivated. Black skin color was the determining factor, but without the goal of disparagement.
Because the case is not an example of overt racism, it was easier for the national courts to say that the police did not act in a racially discriminatory manner. This is contrary to the principles of international and constitutional law. If the European Court of Human Rights now comes to the opposite conclusion and finds the facts to the contrary, this will have weighty implications for police authorities throughout Europe. For Switzerland, for example, this would mean that an estimated one-third of police stops are illegal because they violate the prohibition of discrimination. Political and operational police leadership would then no longer be able to deny institutional racism.
Furthermore, the judgment of the ECtHR will also have implications for the judiciary in all European countries. First, the court must answer the question of whether it is likely that the police acted in a discriminatory manner because of the mention of skin color. If the court answers this question in the affirmative, it is up to the police to sufficiently prove that there were plausible other reasons for the stop; in other words, the burden of proof is transferred to the police authorities. Such a decision means for courts across Europe that from now on they will have to consistently apply the rule of shifting the burden of proof to all police stops where discrimination is suspected.
If the court subsequently concludes that the Swiss police in the Wa Baile case did not succeed in providing this fully exculpatory evidence, it will condemn the police on the basis of the prohibition of discrimination. Such a judgment would set the trend for case law and police practice not only in Switzerland, but in all countries that recognize the European Court of Human Rights.
Furthermore, the judgment of the European Court of Human Rights will also have an impact on the legislature. If Switzerland is condemned, governments and parliaments in many countries and constituent states in Europe will have to revise their police laws. First, they will have to ensure that there are clearer rules for checks on people. Second, they must establish binding rules to prevent racist police stops.
The Alliance Against Racial Profiling is convinced that a conviction of Switzerland in the case of Mohamed Wa Baile can strengthen the Europe-wide fight against institutional racism by the police. Therefore, with this information campaign, we would like to reach out to as many organizations and collectives as possible that are committed to fighting racism. Spread this information and let's think together how we can strengthen the fight against racism and the rule of law.
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