On October 2nd, 2013, the First Instance Court of Paris (“Tribunal de Grande Instance de Paris”) summarily dismissed 13 civil cases that challenge ethnic profiling by police in France with a ruling that effectively prevents any judicial remedy for people who are singled out by police for stops based on their ethnic appearance.
The 13 cases, supported by the Open Society Justice Initiative, are the first legal challenge to ethnic profiling in France. The applicants are all men of North or Sub-Saharan African origin who were stopped by French police, required to produce their identity documents and, in most of the cases, also frisked or searched. Not one of these identity checks produced any outcome—fines, arrest or discovery of contraband. Each stop had taken place while the applicants were trying to go about their daily lives—walking in the street; sitting at a restaurant terrace; sitting on the steps outside of their house; shopping; chatting with friends in the city center. Many of the applicants have experienced repeated police stops, even in the course of a single day.
The legal challenge was based on French Constitutional standards, further supported by European and International non-discrimination norms, and sought damages from the French state. The applicants argued that they were selected by the police based on their presumed origin or skin color, thus constituting a discriminatory stop. Each case presented considerable evidence to support the claim.
Every stop was described by at least one eye-witness who described the specific circumstances. Further evidence of a broad pattern of discriminatory use of identity checks by French police was set out, based on reports issued by international and national monitoring bodies, academics, as well as NGOS, such as Open Society Justice Initiative and Human Rights Watch.
This evidence included a quantitative observational study carried out by the French Scientific Research Centre (CNRS) at 5 sites in Paris. The study demonstrated that persons who appear “Arab” or “Black” have respectively 8 and 6 times more risk of being checked by police than persons who appear “White”. Arguments also noted that ethnic profiling is a widely recognized practice, citing statements of high-ranking officials, including the current President of France.
The court’s ruling is profoundly lacking on multiple fronts. In a set of brief judgments—basically cut-and-paste copies of the brief reasoning provided—the court failed to assess whether the stops were discriminatory. Instead, it fully accepted the state’s argument that (under Article 141-1 of the Code of Judicial Organization), that state responsibility for police actions can only be found when those claiming damages demonstrate that the police committed a “grave error” (“faute lourde”) and that the claimants had failed to do so.
A “grave error” standard—which has fallen into disuse in civil claims more broadly—would require the applicants to demonstrate that the check fell well outside of normal police conduct and reflected deliberate discriminatory intent.
Slim Ben Achour, one of the two lawyers representing the applicants, illustrated the challenge of reaching this threshold, saying that: “Demonstrating grave error in the case of a routine identity check and frisk is virtually impossible. You would have to have a scenario such as a police check in the Place de Concorde, witnessed by judicial clerks, filmed by international TV, and with the police officers’ making explicit racist statements such as ‘we are checking you as you are a dirty Arab’ and also physically mistreating the person.”
The court argued that, because the claimants did not meet this threshold, the state has no obligation to explain why these particular individuals were singled out for stops and frisks. In fact, in their defense, the state’s lawyers had failed to provide any evidence of reasonable—and non-discriminatory—grounds for the stops. As French police keep no record of the identity checks, the Ministry of the Interior had almost no information about the stops. But they also made no effort to identify or interview any of the officers’ who had carried out the checks, or provide any objective information as to why these individuals were stopped (as is required by international case law and guidance on police powers).
The claimants’ petition had argued that the court should apply the threshold for burden of proof that is well-established in non-discrimination law: that, when applicants make a plausible case that the treatment they experienced was based on prohibited grounds such as national or ethnic origin, skin color, gender, or religion among others, the burden of proof falls on the party alleged to have discriminated who must show that the contested treatment was based on other non-discriminatory grounds. This special regime—the reversal of the burden of proof—was developed precisely because of the evidentiary challenges faced by many, if not most, victims of discrimination due to the fact that the proof in question is generally in the possession of the perpetrators.
The implications of this ruling are ruling are disturbing for victims of discrimination and their ability to obtain redress, not solely in cases of ethnic profiling. The court stated that European Community non-discrimination law applies only to professional relationships between employers and employees – a drastic reduction in scope of the European Race Directive that applies to the provision of public goods and services. The ruling also flies in the face of France’s obligations under other binding non-discrimination law, including the European Convention on Human Rights and Fundamental Freedoms – and their clear application to police activities, as affirmed in multiple judgments of the European Court of Human Rights.
In requiring this standard, and placing the entire onus of proof on the claimants, the court is denying any claim to legal protection for victims of police identity checks, even when these are widely recognized and documented both as discriminatory pattern of practice and as unfounded in each of these 13 cases. In effect, the court has given French police carte blanche to use their stop and search powers, free of any legal oversight, in an institutional system that has no means of tracking or measuring the way in which officers’ use their powers. The claimants will seek a reversal of this ruling in the Court of Appeal.
Meanwhile, the French government should also take note, and move to remedy shortfalls in French law and police management that enable ongoing ethnic profiling in a country known for its constitutional commitment to liberty, fraternity and equality . . . and to the regional standards established by the European Union.