French Courts Reject Constitutional Challenge to Discriminatory Police Stops

NEW YORK—The French courts have turned down a constitutional challenge to discriminatory police stops that single out young men of African and Arab origin for identity checks just because of the way they look.

France’s Council of State (Conseil d’état) has rejected a challenge bought by two individuals over Article 78-2 of France’s Code of Criminal Procedure, which governs police identity checks, in a decision announced on Christmas Eve. Under Article 78-2, French police can stop any person and request their identity documents with no basis in objectively suspicious behavior.  

The applicants argued that the regulation grants the police overly-broad powers which result in unconstitutional discrimination that cannot be effectively subject to legal review.

Olivier le Mailloux, the lawyer leading the case, said:

“This decision is extremely regrettable, because it has closed the door to any constitutional review of a regulation that allows several fundamental rights and freedoms to be violated on a daily basis during identity stops: freedom of movement, the principle of equality before the law, and the right to an effective remedy.”

The French government opposed the referral of the constitutional challenge by the Council of State to the Constitutional Council (Conseil constitutionelle).

The applicants are now expected to file a second challenge before the Council of State, couching their arguments against Article 78-2 in terms of the European Convention on Human Rights. Should that be again rejected, the next step would be an application to the European Court of Human Rights in Strasbourg.

The constitutional challenge is being supported by the Open Society Justice Initiative, as part of its work combating discriminatory policing practices in Europe.  

James A. Goldston, executive director of the Justice Initiative, said: “The government’s opposition is surprising, given that France told the UN Human Rights Committee in June this year that it would take steps to address discriminatory policing, and given the assurances of President François Hollande that he is committed to addressing the issue.”

The challenge argued that the vague and ill-defined interpretation of Article 78-2 grants a large margin of discretion to police officers and other agents of the state in choosing those whom they stop and check, without any requirement to account for their actions. 

As a result, it offers no means of monitoring and eliminating potentially discriminatory or prejudicial treatment of individuals from diverse ethnic backgrounds.

In addition, by exempting such stops from any form of documentation, the vast majority of the identity checks carried out on a daily basis may not be effectively challenged in court by any individual who believes his or her rights have been violated.

Omer Mas Capitolin, an elected city official in Paris who is one of the applicants in the challenge, said: "The stops that I and hundreds of thousands of other citizens are subjected to just because of the color of our skin are an affront to the French Republic.  What should people think when they see that it is always the same people who get stopped by the police? This behavior reinforces racist stereotypes in our society, and harms the social contract between individuals and the state.”

Issa Coulibaly, a community organizer and the second applicant, said: "It would be a mistake to underestiamte the damage caused by these discriminatory stops, particularly on the way young people view the authority of the state. It undermines confidence and replaces it with distrust.” 

The Justice Initiative is also supporting a separate civil case brought by 13 young Frenchmen of Arab and African origin who have been subject to discriminatory stops; a negative judgment in that case by a first instance court delivered in October is now being appealed.

A previous constitutional challenge using a different legal route was turned down in 2011.

In 2009, the Open Society Justice Initiative published research based on the observation of over 500 stops by police in Paris, which showed that black people were six times more likely than whites to be stopped; Arabs were stopped 7.6 times more than whites.