Decision on merits; Subjects: RACE RELATIONS, GERMANY, RACIAL DISCRIMINATION; [CERD: Rassendiskriminierungsübereinkommen; Convention sur l'élimination de la discrimination raciale; Convenzione sull'eliminazione della discriminazione razziale]
Volltext (verifizierbarer Originaltext)
GE.26-12492 (E) 090926 090926
Committee on the Elimination of Racial Discrimination
Views adopted by the Committee under article 14 of the
Convention, concerning communication No. 68/2019*, **
Communication submitted by:
Mohamad Shikh Mohamad and Fatima Cheik
Omar (represented by counsel, Hans-Eberhard
Schulz)
Alleged victims:
The authors
State Party:
Germany
Date of communication:
21 March 2016 (initial submission)
Date of adoption of Views:
18 August 2026
Document references:
Decision taken pursuant to rule 100 (4) of the
Committee’s rules of procedure, transmitted to
the State Party on 9 December 2019 (not issued
in document form)
Subject matter:
Racial discrimination by law enforcement
officials
Procedural issues:
Admissibility; exhaustion of domestic remedies;
substantiation of claims
Substantive issue:
Discrimination on the grounds of national or
ethnic origin
Article of the Convention:
5
1.1
The authors are Mohamad Shikh Mohamad and Fatima Cheik Omar. They are
nationals of the Syrian Arab Republic and currently reside in Germany. The authors claim
that the State Party has violated their rights under article 5 of the Convention. Germany made
the declaration provided for in article 14 of the Convention on 30 August 2001. The authors
are represented by counsel.
1.2
Pursuant to the State Party’s request of 27 March 2020, the Committee, acting through
its Working Group on individual communications, decided to examine the admissibility of
the communication separately from the merits. On 5 May 2025, the Committee declared the
complaint admissible insofar as it raises issues with respect to article 5 (a), (b) and (d) (i) and
(vii) of the Convention.
* Adopted by the Committee at its 118th session (10–25 August 2026).
** The following members of the Committee participated in the examination of the communication:
Sheikha Abdulla Ali Al-Misnad, Michał Balcerzak, Pela Boker-Wilson, Chinsung Chung, Bakari
Sidiki Diaby, Régine Esseneme, Guan Jian, Ibrahima Guissé, Gün Kut, Verene Shepherd, Chrispine
Gwalawala Sibande, Mazalo Tebie, Abderrahman Tlemçani and Saúl Vicente Vázquez.
United Nations
CERD/C/118/D/68/2019
International Convention on
the Elimination of All Forms
of Racial Discrimination
Distr.: General
9 September 2026
Original: English
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Factual background
2.1
On 21 November 2012, at around 8.45 a.m., several police officers from a special task
force raided the authors’ apartment. At the time, Ms. Cheik Omar was five months pregnant
and was in the apartment with her 1-year-old daughter. The police officers instructed her to
be quiet and went upstairs, where they found Mr. Mohamad, who had assumed that the police
officers were assailants and rushed to the window to yell for the police. The police officers
tore him away from the window, and he was punched once in the forehead and once in the
jaw and mouth, which caused bleeding lips and persistent pain. He collided with the
thermostat of the heater, which broke into pieces and injured him. He was pushed to the
ground with considerable force and handcuffed. His hands were handcuffed firmly behind
his back so that he had to remain in pain in a kneeling and bent forward position. He was
either photographed or filmed in a kneeling and handcuffed position, which he considered
extremely humiliating. He suffered several injuries with serious consequences.1 He has also
been diagnosed with post-traumatic stress disorder, for which he has received therapy. 2
Ms. Cheik Omar has been mentally fragile since the incident and went for a gynaecological
check-up as a precaution.3
2.2
The authors were not told why their apartment was being raided. When Ms. Cheik
Omar, who is a devout Muslim, asked the police officers for permission to cover herself with
a headscarf because, for religious reasons, she did not want to show her hair in front of men
with whom she was unfamiliar, her request was denied. After several minutes and three
requests, she was given a headscarf, and only after 15 minutes was she permitted to go
upstairs to interpret for her husband, who was not proficient in German. Thereafter, the
authors’ passports were checked, whereby their identities were ascertained. At that point, it
would have been clear to the police officers that they had entered the wrong apartment.
However, even after realizing the mistake, the police officers did not uncuff Mr. Mohamad,
and Ms. Cheik Omar was not allowed to contact a lawyer. After about 45–60 minutes, another
police officer came to the apartment and brought a key to unlock the handcuffs. He
apologized to Ms. Cheik Omar and told her that the police officers had raided the apartment
by mistake. The police officers asserted that the error had probably been caused by the “partly
identical name” of Ms. Cheik Omar and another individual who lived in the same building.
However, the authors point out that their names are in no way identical to the other
individual’s name, the only similarity being that the first and last names of Ms. Cheik Omar
and the other person share the same first two letters. The authors argue that only people who
have racist prejudices can assume that all people of colour look alike or have similar names.
In addition, the police officers did not call a doctor for the authors.
2.3
On 22 November 2012, the authors filed a criminal complaint with the Public
Prosecutor’s Office of Berlin against the police officers involved in the incident, alleging
infliction of bodily injury, imprisonment, damage to property, trespassing and insults. On
15 February 2013, the authors were informed that proceedings against the police officers
involved in the operation had been initiated ex officio on 22 November 2012 and
discontinued on 22 January 2013, as there was insufficient evidence against the accused
following the investigations that had been carried out. On 4 April 2013, the authors appealed
the decision, and by a decision of the Public Prosecutor’s Office of Berlin dated 29 May 2013,
the investigation was again abandoned on the basis that, from a criminal law perspective, the
1 According to a medical report dated 22 November 2012, Mr. Mohamad was examined on
21 November 2012 and had a follow-up appointment the following day. According to the medical
report, he had a wound in his upper right and left lip and a bruise in his lower jaw. He also had a
scrape with swelling, bruising and throbbing pain. At the follow-up appointment, he still had pain in
his lower jaw. He was diagnosed with a lower jaw bite, face splitting, crossbite and skin abrasion.
2 According to a medical report dated 4 April 2013, Mr. Mohamad suffered from post-traumatic stress
disorder and his state of mental health had deteriorated significantly after the police searched his
apartment. Also according to the medical report, Mr. Mohamad had reported that, since the incident,
he had been sleeping in the cellar at night, afraid that the police would come again. During the
daytime, he was very restless and nervous.
3 No supporting documents were provided.
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police officers had not acted wilfully. According to the decision, the police officers had
mistakenly entered the authors’ apartment, had verbally identified themselves as police
officers and were recognizable as such.
2.4
On 16 September 2013, the authors appealed that decision. The investigation was
discontinued for the third time by a decision of the Public Prosecutor’s Office of Berlin on
2 January 2014. According to the decision, the investigation was discontinued because
further investigations had not established reasonable suspicion against the accused, and no
objective witnesses or evidence were available. In the further investigations carried out, seven
police officers were interrogated: five police officers who were involved in the police
operation had been questioned as accused persons and two had been questioned as witnesses.4
According to the decision, the police officer in charge of the search had stated that only the
block and floor of the apartment to be searched had been indicated. Before the start of the
operation, he had noticed that the apartment doors on the ground floor were not marked with
nameplates and that there were prams in front of each apartment. He had had to make an
immediate decision and had decided that the apartment on the left should be searched. The
police officers had opened the apartment, entered it and repeatedly announced loudly and
clearly that they were police officers. After realizing the error, the police officer in charge
had apologized to the authors. Mr. Mohamad’s lip had been injured and paramedics had taken
care of him. The police officer in charge and his colleague had personally apologized to the
authors the following day. According to all the police officers interviewed, they had been in
the authors’ apartment for approximately 10–20 minutes. The authors appealed the decision
on 22 January 2014, and, by a decision dated 4 August 2014, they were informed that the
Chief Public Prosecutor’s Office was not able to come to a different conclusion.
2.5
As the Public Prosecutor’s Office of Berlin refused to bring criminal charges against
the police officers, on 8 September 2014, the authors filed an application for a judicial
decision with the Berlin Higher Regional Court. They refuted the argument that the error was
probably due to the similarity of the names, mentioning that the name of Fatima Cheik Omar
and the suspect’s name shared only the same two initial letters and claiming that such
confusion must have been because of the officers’ racial prejudices, according to which they
regarded people of colour as having the same or an unpronounceable name and did not bother
to treat them as individuals with different first and last names. The authors also claimed that
Ms. Cheik Omar was allowed to wear a headscarf only after several minutes and three
requests and that she was only able to interpret for her husband 15 minutes after the police
officers had entered the apartment.
2.6
On 23 September 2014, the Berlin Higher Regional Court rejected the application as
inadmissible because the authors had not complied with the legal procedural requirements.
The Court held that an applicant’s presentation of the facts must contain a broad outline of
the investigation process and the substantive or legal reasons why the Public Prosecutor’s
Office was allegedly mistaken in its arguments. It recalled that an application should enable
the court to review the proceedings without needing to have recourse to the investigations of
the Public Prosecutor and that it was necessary to state what measures the Public Prosecutor
had taken to clarify the facts. The Court held that only a fragmentary account of the
investigations, in particular the interviews with and the witness testimonies given by the
police officers involved, had been provided. Furthermore, the Court found that the authors
had failed to show that they had challenged the decisions of the Public Prosecutor’s Office
within the applicable deadlines, since they had made no reference to their receipt of the
decision of 2 January 2014. The authors challenged the Court’s decision on 22 October 2014
on the grounds that their right to be heard had been violated, arguing that the factual
presentation was by no means merely fragmentary and that the complaint had been filed on
time. On 25 November 2014, the Berlin Higher Regional Court dismissed their appeal on the
grounds that their right to be heard had not been violated. It noted that the authors had had
the opportunity to make observations, that the decision of 23 September 2014 had been
adopted in compliance with the principle of the right to a fair hearing and that the court had
4 The decision contains summaries of the interviews with the police officers.
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taken note of the authors’ submissions and fully assessed them. It also held that the right to
a fair hearing did not mean that the Court must accept the applicants’ interpretation of the
facts.
2.7
On 15 December 2014, the authors filed a constitutional complaint claiming violations
of human dignity, the right to freedom, the principle of equality and the rights to a fair hearing,
freedom of belief and religion and protection against racial discrimination, reiterating the
statements in their application for a judicial decision before the Berlin Higher Regional Court.
The constitutional complaint was rejected on 22 September 20155 on the grounds that no
constitutional rights had been violated. In its decision, the Constitutional Court of Berlin
referred to the reasons stated in its letter dated 30 April 2015, in which the authors were
informed of the admissibility and justification of their constitutional complaint, and stated
that a letter from the authors dated 26 June 2015 had not given rise to any other assessment.6
2.8
In addition, Mr. Shikh Mohamad brought civil action for damages against the federal
state of Berlin in respect of the events of 21 November 2012. On 23 July 2018, the Berlin
Regional Court ruled that the erroneous raiding of the authors’ apartment on 21 November
2012 was unlawful and that Mr. Mohamad Shikh Mohamad had suffered physical injury and
psychological stress as a result. It thus determined that Mr. Mohamad Shikh Mohamad was
entitled to compensation for the pain and suffering caused. In its final judgment in the case
on 7 September 2023, the Court awarded him €17,000 in compensation for all pecuniary and
non-pecuniary losses.
Complaint
3.
The authors claim that their rights under article 5 of the Convention have been violated
by the raiding of their apartment by police officers in the erroneous belief that it was the
residence of an individual whose name bore no similarity to theirs. According to the authors,
this type of mistake can only be made by people who are led by racist prejudices and think
that all people of colour look alike or have the same name, without perceiving them as
individuals and treating them as such. The authors claim that the police would not have made
such a mistake if two similar German names were involved. The authors claim that Ms. Cheik
Omar was allowed to wear a headscarf only after several minutes and three requests. In
addition, she was not allowed to interpret for her husband until 15 minutes after the police
officers had entered the apartment.
State Party’s observations on the merits
4.1
On 6 August 2025, the State Party submitted its observations on the merits of the
communication. Noting the Committee’s decision finding the communication admissible, the
State Party reiterates that it considers the present case inadmissible.7 The State Party fully
recognizes and regrets that the authors suffered an injustice as a result of the police operation
on 21 November 2012. There is no question that the operation in question was unlawful and
that it caused the authors distress and had medical consequences, which was why the authors
were awarded €17,000 in compensation for the harm suffered. The State Party also
recognizes that the fight against racism and racial discrimination continues to present a major
challenge. Conscious and unconscious racist and other discriminatory prejudices, attitudes
and behaviour persist to varying degrees in society, including within public authorities and
organizations. However, the information available does not indicate that the authors suffered
racial discrimination.
5 According to the authors, the constitutional complaint was rejected on 22 September 2015; according
to the State Party, it was rejected on 9 November 2015.
6 Those letters were not submitted as supporting documents.
7 The State Party reiterates its arguments from previous submissions, claiming that the authors failed to
exhaust domestic remedies and did not substantiate their claims. The State Party also argues that the
onus is not on the State Party to fill in the gaps in the authors’ presentation of the facts and the history
of the proceedings. As an example, the State Party submits two decisions of the Berlin Regional Court
dated 23 July 2018 and 7 September 2023 as annexes, claiming that they were decisions that the
authors had failed to submit.
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4.2
The State Party notes that the communication is ill-founded. The facts of the case
disclose no discrimination within the meaning of article 1 of the Convention, there were no
violations under article 5, and there was no racial profiling.
4.3
The State Party submits that, in accordance with the Committee’s established practice,
it must first be determined whether the facts of the case disclose racial discrimination within
the meaning of article 1 of the Convention before any assessment can be made as to a possible
violation of the substantive obligations arising under the Convention.
4.4
The State Party recalls that article 1 defines racial discrimination as any distinction,
exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin
that has the purpose or effect of impairing the equal enjoyment of human rights and
fundamental freedoms.8 In its jurisprudence, the Committee has stated that the discriminatory
character of the measures concerned must be established with sufficient certainty.
4.5
The State Party refers to the Committee’s decisions in A.M.M. v. Switzerland9 and U.I.
and G.I. v. Switzerland,10 in which the Committee found no violation where the authors had
failed to demonstrate that the alleged acts were based on their ethnic origin or had otherwise
failed to substantiate their claims under the Convention. The State Party emphasizes that it is
incumbent upon the authors to present a sufficiently substantiated claim demonstrating that
the alleged discriminatory treatment was linked to their racial or ethnic origin.
4.6
The State Party argues that, in the present case, the authors had ample opportunity to
substantiate their allegations before the domestic authorities and the Committee but failed to
explain how the erroneous raiding of their apartment, the alleged refusal to allow Ms. Cheik
Omar to interpret for her husband or the alleged refusal to allow her to wear a headscarf
constituted racially discriminatory conduct by the police. The State Party therefore maintains
that the communication is manifestly ill-founded, as the facts do not disclose any
discriminatory act within the meaning of article 1 of the Convention.
4.7
The State Party submits that, although the raiding of the authors’ apartment on
21 November 2012 was found by the Berlin Regional Court to be unlawful and compensation
was awarded for the resulting physical and psychological harm suffered by Mr. Mohamad,
the unlawfulness of the police operation does not in itself establish racial discrimination.
There is no evidence that the authors were subjected to any distinction, exclusion or
restriction on the basis of their ethnic origin within the meaning of article 1 of the Convention.
4.8
The State Party further argues that there is no factual basis for concluding that the
police officers acted with racist motives. It notes that it was never formally established
whether there were nameplates on either the authors’ apartment or the apartment that was the
actual subject of the search warrant. Even if the authors’ claim regarding the partially similar
names on the doors were accepted, the State Party maintains that this would not support an
inference of racially biased motivation. The State Party submits that the authors’ allegation,
namely, that the police confused the apartments because of prejudices towards Arab names,
as speculative and unsupported by evidence.
4.9
The State Party contends that the more plausible explanation is that the officers made
a mistake due to operational failures and the circumstances of the police operation. It submits
that, on the day in question, the police were executing multiple arrest and search warrants
simultaneously and were operating under significant time pressure in order to prevent
potential communication among the suspects and the destruction of evidence. In the State
Party’s view, the unlawful entry was the result of inadequate planning and the urgency of the
operation rather than any consideration of the authors’ ethnic origin.
4.10
The State Party also rejects the authors’ claim that the surrounding circumstances
indicate discriminatory treatment. It disputes the characterization of the authors’ living
conditions as those of migrant families in a social “hotspot”, noting that the apartment was
an ordinary maisonette in a quiet Berlin street. The authors do not explain the meaning of the
term “hotspot”. The State Party maintains that the use of force against Mr. Mohamad was
8 A.M.M. v. Switzerland (CERD/C/84/D/50/2012), para. 8.2.
9 Ibid., para. 8.6.
10 U.I. and G.I. v. Switzerland (CERD/C/112/D/74/2021), para. 7.9.
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prompted by his attempt to leave the apartment and his resistance to the police, not by his
ethnicity. It further submits that the period during which Mr. Mohamad remained handcuffed
cannot be attributed to racial discrimination, as any delay could be explained by the evolving
operational situation, the need for authorization from senior officers and concerns linked to
his resistance. There is no evidence that the author would not have been treated the same way
if he were German.
4.11
The State Party further submits that the unlawful search did not have a discriminatory
effect on the authors. While acknowledging the significant physical and psychological impact
of the incident on Mr. Mohamad, it argues that the authors have produced no evidence
showing that they suffered a disproportionate adverse impact because they are Syrian
migrants. According to the State Party, any person whose home was mistakenly searched
would likely have experienced similar distress regardless of his or her origin. It therefore
concludes that, although the search was unlawful, it was neither racially motivated nor carried
out in discriminatory circumstances.
4.12
The State Party submits that discrimination cannot be inferred from the alleged brief
refusal to allow one of the authors to interpret. The statements by Ms. Cheik Omar on this
matter are mere assertions that have not been substantiated. Any refusal to allow her to
interpret was brief, and the author does not dispute that she was able to interpret after a few
minutes. It seems logical that the alleged course of events would have been the result of the
time pressure on the police officers during the search of the apartment. Before discovering
that they were mistaken, the police officers had to assume that they were in a potentially
dangerous situation. Before deciding on the request to interpret, the police officers had to
complete their initial assessment of the situation. That action cannot be attributed to racist
motives.
4.13
With regard to the refusal to allow Ms. Cheik Omar to wear a headscarf, the State
Party submits that the authors also put forward mere assertions. Even if the author was indeed
unable to wear a headscarf for a brief period of time, this would not have fallen within the
substantive scope of the Convention. According to the travaux préparatoires of the
negotiations for the Convention and to the established practice of the Committee,
discrimination based exclusively on religious grounds was not intended to fall within the
scope of the Convention.11 The Committee is thus not competent to examine an alleged
refusal to allow the wearing of a headscarf. The State Party also refers to its earlier arguments
that the police officers were acting under time pressure and in a tense situation.
4.14
The present communication also fails under article 5 of the Convention. The State
Party submits that there has been no violation of article 5 (a) of the Convention. It recalls that
article 5 (a) requires States Parties to guarantee equality before the law and equal treatment
before tribunals and other organs administering justice, and argues that claims under this
provision must be adequately substantiated. In that regard, it refers to Pjetri v. Switzerland,12
in which the Committee found insufficient evidence of discrimination and rejected the claim
under article 5 (a).
4.15
The State Party further contends that the authors have failed to substantiate their
allegation of discrimination. It emphasizes that German law provides comprehensive
protection against racial discrimination, including through article 3 of the Basic Law of the
Federal Republic of Germany and comparable provisions such as article 10 of the
Constitution of Berlin. According to the State Party, this legal framework ensures protection
against discrimination and guarantees equality before the law.
4.16
The State Party further argues that the authors had access to effective domestic
remedies, including proceedings before the Berlin Higher Regional Court, the Berlin
Constitutional Court and the Berlin Regional Court. It maintains that neither the legal
framework nor any alleged lack of judicial recognition of racial discrimination prevented
consideration of the authors’ claims. Rather, a substantive assessment was not possible
11 A.W.R.A.P. v. Denmark (CERD/C/71/D/37/2006), para. 6.3.
12 Pjetri v. Switzerland (CERD/C/91/D/53/2013), para. 7.6.
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because of serious deficiencies in the authors’ presentation of the facts, resulting in the
dismissal of their action as inadmissible.13 Accordingly, the State Party concludes that there
has been no violation of article 5 (a).
4.17
The State Party contends that, under article 5 (b) of the Convention, States Parties
have an obligation to guarantee the right of everyone, without distinction as to race or national
origin, to security of person and protection by the State against violence or bodily harm,
whether inflicted by government officials or by any individual group or institution. The State
Party notes once again that the erroneous raiding of the authors’ apartment was unlawful and
that Mr. Mohamad suffered physical injury and psychological stress as a result. The Berlin
Regional Court found that the police negligently violated the author’s legal interests by
failing to take due care. In its judgment of 7 September 2023, the Berlin Regional Court
awarded €17,000 in compensation for all pecuniary and non-pecuniary losses. The authors
failed to demonstrate that the violation of their right to physical integrity was racially
motivated.
4.18
The State Party submits that there has been no violation of article 5 (d) (i) of the
Convention, noting that it is unclear on what basis such a claim could arise in the present
case. It recalls that article 5 (d) (i) guarantees, without distinction as to race or national origin,
the right to freedom of movement and residence within a State. Referring to the Committee’s
interpretation in Koptova v. Slovakia14 and to the interpretation in De Tommaso v. Italy15 of
the freedom of movement provided for under article 2 of Protocol No. 4 to the Convention
for the Protection of Human Rights and Fundamental Freedoms (European Convention on
Human Rights), the State Party argues that that right concerns an individual’s ability to move
freely within a country and choose his or her place of residence. It maintains that the authors
have not identified any act that allegedly interfered with that right and that nothing that
occurred on 21 November 2012 relates, even prima facie, to freedom of movement or
residence. The State Party therefore concludes that there has been no violation of
article 5 (d) (i) of the Convention.
4.19
The State Party submits that there has been no violation of article 5 (d) (vii) of the
Convention, which guarantees the right to freedom of religion without distinction as to race
or national origin. It argues that the authors failed to substantiate their allegation that
Ms. Cheik Omar was prevented from putting on her headscarf, which alone warrants
dismissal of the claim.
4.20
The State Party further maintains that, even if Ms. Cheik Omar had temporarily been
unable to wear her headscarf, the matter would not fall within the substantive scope of the
Convention. In the alternative, it contends that any restriction lasted only a few minutes and
therefore did not reach the threshold of a violation of article 5 (d) (vii). Moreover, any brief
refusal would have been justified by the police’s legitimate need to assess the situation,
address potential risks and verify the identities of the individuals present. Accordingly, the
State Party concludes that there has been no violation of article 5 (d) (vii) of the Convention.
4.21
The State Party submits that the facts do not support any finding of racial profiling.
Referring to the Committee’s general recommendation No. 36 (2020), it recalls that racial
profiling involves conduct by law enforcement authorities that is not motivated by objective
criteria or reasonable justification and is based on grounds of race, colour, descent, national
or ethnic origin, including through measures such as arbitrary stops, searches, identity checks,
investigations and arrests. It emphasizes that racial profiling is prohibited under German law,
particularly under the principle of equal treatment enshrined in article 3 of the Basic Law,
and that allegations of such conduct are subject to independent judicial review.
4.22
The State Party argues that the police action described in the communication does not
satisfy the criteria for racial profiling. While acknowledging that the raiding of the authors’
apartment was unlawful, it maintains that the operation formed part of a criminal
investigation conducted pursuant to a judicially authorized search warrant and was not
13 The State Party refers to its earlier submissions regarding the admissibility of the communication.
14 Koptova v. Slovakia (Communication No. 13/1998).
15 European Court of Human Rights, De Tommaso v. Italy, Application No. 43395/09, Judgment,
23 February 2017.
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arbitrarily directed against the authors because of their ethnic origin. In its view, the
unlawfulness of the entry does not demonstrate that the measure was based on race or
ethnicity.
4.23
The State Party also rejects the suggestion that the operation should be viewed in the
context of simultaneous searches involving members of so-called Arab clans. Referring to
the Committee’s admissibility decision, it notes the authors’ argument that comparable
large-scale operations would not have been carried out against individuals belonging to other
segments of society for offences involving goods worth only a few hundred euros. The State
Party characterizes this allegation as wholly unfounded and argues that the authors failed to
explain who would have been treated differently or in what way. Furthermore, even if such
a claim had merit, the State Party maintains that the authors could not be considered victims
of such treatment because the search warrant had not been directed at their apartment.
4.24
The State Party further argues that all arrest and search warrants executed on
21 November 2012 had been issued by judges following a case-by-case assessment of the
relevant legal requirements. It therefore strongly rejects any implication that the issuance or
execution of those warrants reflected racial profiling, adding that the broader context of the
warrants is not the subject of the communication.
4.25
The State Party dismisses as pure conjecture the authors’ claim that the police
operation would have been halted immediately had the occupants not appeared to be Arab
Muslims. It notes that the actual target of the search warrant was a Lebanese national and that
there is no evidence that the police possessed information about his appearance. In its view,
the measures taken against Mr. Mohamad, including his handcuffing, were a response to his
attempt to leave the apartment and his resistance to the police rather than to his ethnic origin
or appearance. The State Party therefore concludes that there are no indications of racial
profiling and that the claims under article 5 of the Convention should be dismissed.
Authors’ comments on the State Party’s observations on the merits
5.1
On 1 October 2025, the authors submitted their comments on the State Party’s
observations on the merits. The authors submit that the State Party itself acknowledges that
they suffered an injustice as a result of the police operation and accepts that combating racial
discrimination remains a major challenge in Germany, including within public authorities
and institutions. The authors refer extensively to their counsel’s 2019 and 2023 publications
on institutional racism, which discuss the systematic concealment, trivialization and support
of racist acts by State institutions and the concept of institutional racism under German law.
The authors further rely on the concluding observations on the combined twenty-third to
twenty-sixth periodic reports of the State Party, in which the Committee highlighted the need
for reliable demographic data on racism, stressed the inadequacy of the term “persons with
an immigrant background” for identifying those at risk of discrimination and expressed
concern about the absence of a legal definition of racial discrimination in line with article 1
of the Convention.
5.2
The authors further submit that the Committee has previously expressed concern that
the lack of a domestic legal definition of racial discrimination contributes to the reluctance
of the German courts to rely on the Convention and that the continued focus on right-wing
extremism and neo-Nazism risks reducing racism to those phenomena alone. They note that
the Committee has called upon Germany to adopt a statutory definition of racial
discrimination that is fully consistent with article 1 (1) of the Convention but contend that no
such definition has yet been introduced despite the prohibition of racial discrimination being
part of the national legal system. Against this backdrop, the authors argue that it is surprising
and inconsistent for the State Party to maintain that there is insufficient evidence of racial
discrimination in the present case. They contend, contrary to the State Party’s position, that
the allegations of racial discrimination have been sufficiently substantiated.
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Issues and proceedings before the Committee
Consideration of the merits
6.1
The Committee has considered the communication in the light of all the information
made available to it by the parties, in accordance with article 14 (7) (a) of the Convention.
6.2
The Committee recalls that, by its decision of 5 May 2025, it declared the
communication admissible only insofar as it raised issues under article 5 (a), (b) and (d) (i)
and (vii) of the Convention. Accordingly, the Committee will confine its examination of the
merits to the authors’ claims under those provisions.
6.3
The Committee recalls that article 5 (a) of the Convention requires States Parties to
guarantee, without distinction as to race, colour, descent, or national or ethnic origin, the right
to equal treatment before the tribunals and all other organs administering justice, while
article 5 (b) guarantees the right to security of person and protection by the State against
violence or bodily harm, whether inflicted by government officials or by any individual,
group or institution. The Committee notes the authors’ claim that they were targeted as a
result of racial prejudice and that the treatment to which they were subjected during the police
operation amounted to racial discrimination. It also notes the State Party’s position that the
search of the authors’ apartment was the result of an operational error rather than racial
discrimination. The Committee further notes that the State Party acknowledged the
unlawfulness of the search and that the authors were awarded compensation by the domestic
courts for the pecuniary and non-pecuniary harm they suffered. The Committee recalls that,
pursuant to article 1 (1) of the Convention, a distinction is contrary to the Convention if it
has either the purpose or the effect of impairing the equal enjoyment of rights and freedoms
and that, in determining whether an act has such an effect, the Committee will examine
whether it entails an unjustifiable disparate impact upon a group distinguished by race, colour,
descent, or national or ethnic origin.16 The Committee further recalls that, once an author has
established a prima facie case of differential treatment linked to race, colour, descent, or
national or ethnic origin, it is for the State Party to provide evidence of an objective and
reasonable justification for the differential treatment that is unconnected to those grounds.17
6.4
The Committee acknowledges the distress, physical injuries and psychological harm
suffered by the authors as a result of the events in question. It notes the authors’ submission
that the mistaken identification of their apartment, which occurred in the context of a
coordinated series of search and arrest operations reportedly targeting persons thought to be
members of so-called Arab clans, together with the State Party’s own acknowledgment that
conscious and unconscious discriminatory attitudes persist in society, including within public
authorities and organizations (see para. 4.1 above), could plausibly indicate differential
treatment linked to the authors’ national or ethnic origin. Applying the standard set out in
paragraph 6.3 above, the Committee considers that these elements are sufficient to require
the State Party to provide an objective and reasonable justification for the conduct in question
that is unconnected to the grounds of race, colour, descent, or national or ethnic origin. The
Committee notes, in this connection, the State Party’s explanation that the apartment doors
bore no nameplates, that the operation formed part of the simultaneous execution of a larger
set of judicially authorized warrants under considerable time pressure and that the error was
attributed to an operational failure. It further notes that the State Party acknowledged the
unlawfulness of the search and compensated the authors for the harm suffered. Having
examined the circumstances of the case and the evidence before it, the Committee is not in a
position to conclude that the raiding of the apartment was connected to the grounds of race,
colour, descent, or national or ethnic origin. Accordingly, the Committee finds no violation
of article 5 (b) of the Convention.
6.5
The Committee turns to the authors’ claim under article 5 (a) of the Convention, which
guarantees equal treatment before tribunals and other organs administering justice. The
Committee observes that the authors’ application alleging racially motivated conduct was
16 General recommendation No. 14 (1993) on article 1 (1) of the Convention, paras. 1 and 2.
17 General recommendation No. 30 (2004) on discrimination against non-citizens, para. 24. See also
General recommendation No. 36 (2020) on preventing and combating racial profiling by law
enforcement officials.
CERD/C/118/D/68/2019
10
GE.26-12492
dismissed by the Berlin Higher Regional Court on procedural grounds alone, without any
examination of the substance of the discrimination claim, and that the subsequent
constitutional complaint was likewise rejected without the issue of racial discrimination
being addressed by the Constitutional Court of Berlin. The Committee recalls that article 5 (a)
of the Convention requires States Parties to guarantee the right of everyone, without
distinction as to race, colour, or national or ethnic origin, to equality before the law, notably
in the enjoyment of the right to equal treatment before the tribunals and all other organs
administering justice, and that article 6 requires States Parties to assure to everyone within
their jurisdiction effective protection and remedies, through the competent national tribunals
and other State institutions, against any acts of racial discrimination, as well as the right to
seek from such tribunals just and adequate reparation or satisfaction for any damage suffered
as a result of such discrimination. Read together, these two provisions require there to be not
only formal equality in access to a tribunal, but also a genuine opportunity for an arguable
claim of racial discrimination to be examined on its merits. The Committee is concerned that,
notwithstanding the seriousness of the allegations and the State Party’s own acknowledgment
of unlawful conduct by its agents, the domestic courts at no stage considered whether the
impugned conduct disclosed differential treatment linked directly or indirectly to a ground
protected under the Convention. The Committee takes note of the compensation awarded for
the agents’ unlawful conduct. However, it observes that the evidence before it does not enable
it to exclude the possibility that the authors were required to bear a disproportionate burden
in satisfying the procedural requirements for their allegations of racial discrimination to be
examined on their merits. This may, in practice, have affected their right to equal treatment
before the tribunals and all other organs administering justice. In the circumstances of the
present case, the Committee considers that the repeated dismissal of the authors’ claim
without any substantive consideration of the allegation of discrimination discloses a violation
of article 5 (a) of the Convention.
6.6
The Committee refers to article 5 (d) (i) of the Convention, which guarantees, without
distinction as to race, colour, descent, or national or ethnic origin, the right to freedom of
movement and residence within the border of the State. The Committee notes the State
Party’s assertions that the events that gave rise to the communication do not concern the
authors’ freedom of movement or residence and that the authors have not identified any act
that interfered with those rights, in line with the Committee’s interpretation in Koptova v.
Slovakia. The Committee observes that neither the communication nor the authors’
subsequent comments explain how the search of their apartment, the arguably temporary
restrictions imposed during the police operation or any other aspect of the events of
21 November 2012 affected their enjoyment of the rights protected under article 5 (d) (i) of
the Convention. The Committee further notes that, despite the State Party’s detailed
observations on this point, the authors did not address this argument in their comments on
the merits. In these circumstances, the Committee is unable to discern any interference with
the rights protected under article 5 (d) (i) of the Convention and therefore concludes that the
facts before it do not disclose a violation of that provision.
6.7
The Committee notes that article 5 (d) (vii) of the Convention guarantees, without
distinction as to race, colour, descent, or national or ethnic origin, the right to freedom of
thought, conscience and religion. The Committee notes the authors’ claim that Ms. Cheik
Omar, a practising Muslim, was permitted to wear her headscarf only after several requests
and after several minutes had elapsed. It further notes the State Party’s submission that this
allegation is supported only by the authors’ assertions and that the evidence available from
the domestic proceedings does not corroborate the claim that Ms. Cheik Omar was prevented
from wearing a headscarf beyond a brief initial period. The Committee also takes note of the
State Party’s explanation that any delay must be viewed in the context of a rapidly evolving
police operation, during which the officers believed that they had entered the target premises
and were securing the scene, identifying the persons present and assessing a potentially
dangerous situation. The Committee further recalls that discrimination based exclusively on
religious grounds does not, as such, fall within the scope of the Convention.18 The Committee
is mindful, however, that the grounds of religion and ethnic or national origin may in practice
be inseparably linked, particularly where a visible religious marker, such as a headscarf, is
18 A.W.R.A.P. v. Denmark (CERD/C/71/D/37/2006), para. 6.3.
CERD/C/118/D/68/2019
GE.26-12492
11
also perceived by others as an indicator of ethnic or national origin. In such circumstances,
the Committee will consider whether treatment nominally directed at a religious practice is,
in substance, grounded in ethnic or national origin. In the present case, the authors have not
demonstrated that the alleged delay in permitting Ms. Cheik Omar to wear her headscarf was
based on the grounds of race, colour, descent or national or ethnic origin as opposed to her
religious beliefs and have not engaged with the State Party’s detailed submissions on this
issue in their observations on the merits. In these circumstances, the Committee is unable to
conclude that the conduct in question constituted discrimination within the meaning of the
Convention and therefore finds that the facts before it do not disclose a violation of
article 5 (d) (vii).
7.
Acting under article 14 (7) (a) of the Convention, the Committee is of the view, in the
light of the material in the case file, that the facts before it disclose a violation of article 5 (a)
of the Convention. The Committee recalls that, according to the rules on the responsibility of
States under international law, any violation of an international obligation that has resulted
in harm entails a duty to make full reparation for the injury caused. 19 The Committee
emphasizes that it is the responsibility of the State Party to provide reparation for the violation
of its obligations under the Convention and of the rights of the authors of the communication,
which should include a formal acknowledgment that the domestic courts’ failure to examine
the merits of their claim of discrimination constituted a violation of article 5 (a) of the
Convention. The Committee, moreover, reiterates its recommendation that the State Party
redouble its efforts to improve awareness and knowledge of the provisions of the Convention
and its justiciability among judges, lawyers, public officials, members of the Bundestag, the
provincial authorities and the general public and that it include in its next periodic report
specific examples of the domestic application of the Convention, including by lower courts
and administrative bodies, together with detailed information on the impact of the training
and awareness-raising activities run for members of the judiciary, lawyers and
parliamentarians.
8.
The Committee requests the State Party to provide, within 90 days, information on the
steps taken to give effect to the Committee’s Views.
19 Pérez Guartambel v. Ecuador (CERD/C/106/D/61/2017), para. 6.