Constitutional Challenge to Ethnic Profiling in France

Constitutional Challenge to Ethnic Profiling in France

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. The Conseil Constitutionnel (Constitutional Council) is being asked to say that granting such arbitrary authority to the police leads to ethnic profiling, and violates the French Constitution.

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.

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.

In order to challenge this practice, the problem is being referred to the Conseil Constitutionnel as a Question Prioritaire de Constitutionnalité (QPC), or priority question of constitutionality. Under this new procedure introduced in 2010, the cases start in the ordinary courts, where legal proceedings have begun as a result of an ID stop. The judge concerned will be asked to refer the case for consideration of the constitutionality of the ID stop. Criminal cases will first be considered by the Cour de Cassation (Court of Cassation) and immigration cases will first be considered by the Conseil d’État (Council of State), which serve as filtering bodies for the referrals to the Conseil Constitutionnel.

Open Society Justice Initiative Involvement

The Justice Initiative is working in collaboration with a number of French nongovernmental organizations and lawyers to mount a legal challenge to ethnic profiling. These arguments have been developed by lawyers from the Syndicat des Avocats de France and the Paris law-firm Bourdon, Voituriez, Burget, with the assistance of constitutional law expert Dominique Rousseau. They will be pleaded before the courts by lawyers across the country.

Arguments

Ethnic profiling violates 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.

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 is ethnic discrimination, contrary to the French Constitution and Article 14 ECHR. Such unlawful treatment cannot be justified by the need to combat crime, control immigration or maintain public order. More effective and nondiscriminatory policing methods must be introduced.

Timeline

May-June 2011. Cases brought before the first instance courts with requests for referral made to the Conseil Constitionnel.
June-August 2011. Cases pleaded before the Cour de Cassation and the Conseil d’État.
September-October 2011. Cases pleaded before the Conseil Constitutionnel.

Resources

Related Cases
Williams v Spain 
Timishev v Russia

Links
Centre National de la Recherche Scientifique (CNRS)
Syndicat des Avocats de France 
Defenseur des Droits

Additional Resources
Gillan and Quinton v the United Kingdom. In this case the European Court of Human Rights found that police stops without the need for reasonable suspicion violated the right to private life and lead to the risk of discrimination.
European Commission on Racism and Intolerance and its reports on France.
Commissioner for Human Rights of the Council of Europe and its reports on France.