Constitutional Challenge to Ethnic Profiling in France

Court:
Domestic Courts
Country:
France
Status:
Active
Challenging Discrimination by Police

Young people from ethnic minorities in France have become used to being stopped by the police for identity checks as part of their daily routine. The unequal focus on these groups is only possible because of the broad stop and search powers that are given to the police under the criminal procedure code. Research over the years has demonstrated that these provisions allow too much scope for the police to stop people arbitrarily, allowing for discriminatory checks—ethnic profiling—which stigmatizes migrant and other visible minority communities, perpetuates stereotypes, and is an ineffective and counterproductive policing method. 

Facts

Ethnic profiling is a pervasive problem in French policing. In 2009, in an effort to document this the Open Society Justice Initiative together with the Centre National de la Recherche Scientifique (National Centre for Scientific Research) published Profiling Minorities: A Study of Stop-and-Search Practices in Paris, which presented the results of an observational study of police stop-and-search operations in Paris and provided the first-ever quantitative data demonstrating the practice and scope of ethnic profiling.

The study documented over 500 police stops carried out from October 2007 to May 2008, across five locations in and around the Gare du Nord train station and Châtelet-Les Halles commuter rail station. The data showed that blacks were between 3.3 and 11.5 times more likely than whites to be stopped, while Arabs were between 1.8 and 14.8 times more likely to be stopped than whites. The study also found a strong relationship between people’s ethnicity, particular styles of clothing worn by young people, and the likelihood that they would be stopped.

Police stops and identity checks in France are used both to investigate crimes and to prevent threats to public order. The majority of stops are carried out under Article 78 of the Code of Criminal Procedure (CCP) which permits four types of identity checks. A check under Article 78-2(1) allows police to stop an individual who they have reason to suspect of having committed a crime or of preparing to do so, or who can provide help to the police. Under Article 78-2(2), a prosecutor is allowed to determine specific places and times where police can stop anyone without any need for suspicion. Article 78-2(3) allows for ID stops where the police believe there is a risk to public order, and Article 78-2(4) allows the police to conduct ID stops in any airport, rail station or other transport site, both also without any need for suspicion.

French police do not release information about their stop and search practices, and France does not collect statistics on ethnicity that can show unequal treatment. So the problem has continued to be denied by successive French governments who therefore take no concrete steps to address it.

Two legal challenges

The distinct legal avenues have been developed to address ethnic profiling practices in France.

Civil law remedy

The first set of proceedings concern a civil law remedy seeking damages by after being singled out by French police for identity checks because of the way they look.

The claimants include students in business school, theatre school, accounting and high school; the aide to an elected official; a delivery man; and a professional musician among others. For many of the claimants, such checks are a routine part of daily life. In some periods, they can be checked multiple times a week, even per day. In most of the cases the stops are accompanied by pat-downs in public and sometimes by provocative and insulting language. In none of these cases, did the police stop produce any law enforcement outcome.

The claimants are all black or North African men who were stopped by police because of what they look like rather than what they did. This is ethnic profiling, which constitutes discrimination and is illegal according to the French Constitution and international law.

Proof of ethnic profiling is a significant hurdle. In France, identity checks are the only act carried out by State agents under criminal procedures for which there is no record. This means that a person who is stopped, asked for their identity documents, frisked and even searched receives no document that allows them to prove that the stop took place. Demonstrating further that the stop was discriminatory is even more difficult.

In the cases filed the method of proof that the stop occurred is the use affidavits of the victim and a witness. To demonstrate that the stop was arbitrary and discriminatory the plaintiffs rely on the fact that they were singled out for a check while others were not, that the police do not have a valid explanation and justification for the stop and the fact the abovementioned reports show disproportionate and unnecessary stops of visible minorities.

Constitutional challenge

At the same time another avenue different in character is sought  before the Conseil Constitutionnel (Constitutional Council) as a Question Prioritaire de Constitutionnalité (QPC: priority question of constitutionality). The Constitutional Council’s main activity is to rule on whether proposed statutes are in conformity with the Constitution, after they have been voted by Parliament and before they are signed into law by the President of the Republic (a priori review).

Since 1 March 2010, individual citizens, interested parties and NGO’s may also ask for the Constitutional Council to review whether the law applied in the case is constitutional (a posteriori review). Under French law conformity with the Constitution entails conformity with two texts: the Declaration of the Rights of Man and of the Citizen and the preamble of the constitution of the Fourth Republic.

Under the a posteriori review procedure a general challenge to the impugned provisions of art 78 § 2 CCP will first be brought before the French Council of State (Conseil d’État) the highest administrative Court. The Conseil d’État serves as a filtering body for the referral to the Conseil Constitutionnel. It will be asked to refer the cases to the Conseil Constitutionnel for consideration of the constitutionality of application of art 78 § 2 CCP (see arguments below).

Open Society Justice Initiative Involvement

The Justice Initiative works closely with a number of French nongovernmental organizations, community groups and lawyers to build both legal challenges to ethnic profiling from the ground.

The cases in the constitutional challenge have been developed by lawyers from the Syndicat des Avocats de France, in particular Olivier Le Mailloux, as well as lawyers from the Paris law-firm Bourdon, Voituriez, Burget, with the assistance of constitutional law expert professor Dominique Rousseau.The QPC cases will be pleaded by Olivier Le Mailloux.

The civil law remedy is taken forward by Slim Benachour, member of the Syndicat de Avocats de France and Félix de Belloy from the Paris based law-firm Beauquier, Belloy, Gauvain.

Justice Initiative has provided technical assistance in particular on relevant matters of European law, as well as on strategic thinking such as case and client selection, advocacy and community outreach.

Arguments

Ethnic profiling practices violate the rights of those stopped under both the French constitution and the European Convention of Human Rights (ECHR).

Legal Certainty. The provisions of the CPP allowing for ID stops are so broad and vague that they undermine the right to legal certainty under which any person must be able to know when, where and why they are being subjected to an ID stop. This leads to arbitrary policing and allows ethnic profiling to occur.

Personal Liberty. Individuals subjected to arbitrary ID stops may often be detained for long periods of time, violating their right to liberty protected by the French Constitution and by Article 5 ECHR.

Private Life. Individuals who are stopped and searched in public suffer for an interference with their right to proivate life and integrity of their body in violation of article 8 ECHR.

Freedom of movement. ID stops interfere with the freedom of movement of the individual. Such stops are arbitrary, unnecessary and discriminatory and therefore do not meet the requirements that the measure be necessary in a democratic society to achieve any of the legitimate aims the police may pursue. This violates the French Constitution and Article 2 of Protocol 4 of the ECHR.

Discrimination. Unequal treatment of minorities in this way without objective and reasonable justification constitutes ethnic discrimination, contrary to the French Constitution and Article 14 ECHR. Such unlawful and arbitrary treatment cannot be justified by the vague formulations of need to combat crime, control immigration or maintain public order. More effective, behavior driven, non-stereotypical, targeted, nondiscriminatory and accountable policing methods must be introduced.

 

Timeline

Civil law route

April 11, 2012. Fifteen individuals file civil law suits before the Tribunal de Grande Instance de Paris against the French state for racial profiling.
July 3, 2013. Oral court hearing at the Tribunal de Grande Instance de Paris.
October 2, 2013. Announced date of judgment.

Constitutional challenge

July 2013. Preliminary letter sent to […]
September-October 2013. Expected pleadings before the Conseil d’État for a referral to the case to the Conseil Constitutionnel.
November-December 2013. Expected pleadings before the Conseil Constitutionnel.
January 2013. Expected decision by the Conseil Constitutionnel.