The French state believes that the practice of police singling out people who are black or of North African appearance for identity checks can be justified, according to documents seen by Mediapart. Government lawyers argue that when the police are looking for possible immigration offences – for example not having the correct documents – it can be legitimate to target people from different ethnic backgrounds rather than whites as potential offenders. This is despite the fact that this practice of so-called 'racial profiling' - contrôles au faciès in French - is counter to all domestic and international jurisprudence. And in spite of the promise given by François Hollande when he was a presidential candidate that he would fight such ethnically-targeted police searches.
The revelation of the state's stance comes in documents submitted by the government's official legal department as part of its appeal against a judgement by the court of appeal in Paris on June 24th, 2015, when it was found guilty of “very serious misconduct” in relation to five identity checks that were judged to be discriminatory. Interestingly, the Ministry of Justice itself did not want to contest these verdicts. And three groups who helped bring the cases, the Collectif contre le contrôle au faciès, the foundation founded by billionaire George Soros Open Society Justice Initiative and barristers' professional body the Syndicat des avocats de France (SAF), all hoped that the verdicts would be the occasion for President Hollande to respect his election pledge over racial profiling. “All that needed to be said to the police then was: the justice system leaves us no choice. The law has to be changed or at least your practices,” explains lawyer Slim Ben Achour, a specialist in discrimination and equality who regularly appears before the court of appeal.
But it was not to be and instead the government of prime minister Manuel Valls decided to appeal to the judiciary's highest court, the Cour de Cassation. As interior minister, a post he occupied before becoming premier in March 2014, Valls had himself opposed the idea of police providing written 'receipts' or official notifications to the person whom they stopped for an identity check. Officially the government's view is that it wants the current cases to go before highest judicial authority so that the law can be clarified definitively. The legal memo seen by Mediapart, however, suggests that in reality the government has a different approach.
Originally thirteen people took the government to court over discriminatory searches but the court of appeal in Paris only found in favour of five of them. In the case of the eight others the court considered that the searches were justified because they were carried out in “dangerous areas”. These eight have in turn taken the government to the Cour de Cassation, refusing to accept the idea that the police have the right to discriminate and to search someone not on the basis of a person's behaviour but on the basis of an area.
As for the five successful plaintiffs, three of them, all of African or North-African origin and aged between 18 and 21, were stopped and searched at the entrance to the shopping gallery at La Défense, the Paris out-of-town business district, on December 10th, 2011. A witness described having “observed altogether about a dozen people being stopped over the course of around one-and-a-half hours … only black and Arab men aged between 18 and 35, normally dressed – jeans, sweatshirts”. According to this witness, the identity checks did not result in a single arrest.
However, the government's legal department does not see this as a problem. Its memorandum says: “The fact that, at that point in their mission that day, the police officers apparently only checked [the identity of] people with a foreign appearance cannot be taken to demonstrate that the check was not carried out in conditions that respected individual liberties and the principle of equality. In fact the police officers were running an investigation into the legislation covering foreigners in particular.”
A little later, this argument is developed in a more convoluted way: “The public prosecutor's pleading implied that identity checks be carried out to seek out and prosecute, in particular, infringements of the law concerning foreigners. The court of appeal could not then say that criminal investigators had committed a serious misdemeanour by only stopping people who looked as if they could be foreign, without seeking to know whether this check was not justified by the purpose of the command under which it was carried out.”
So the government is calling the court of appeal to order, suggesting it did not correctly interpret “the purpose of the command”; which in summary is that if you are looking for foreigners violating the law, you check “only people who look as if they could be foreign”. In other words, black people and people of North African appearance.
Slim Ben Achour, who represents one of the 13 original plaintiffs, is aghast at the presumptions being made about black people and people of North African appearance. “They are clearly suspected of not having French nationality,” he says. For Patrick Henriot, of GISTI, a group that offers information and support to immigrants, this argument “validates racial profiling”, which would be a first in government decrees. On this basis it would appear the law against racial discrimination does not apply to identity checks.
Yet current jurisprudence states that when it comes to presuming that a person is of foreign nationality, police officers' presumptions should normally be based on “objective criteria” says Lanna Hollo, from the Open Society Justice Initiative. These could include someone driving a vehicle with a foreign number plate or visibly carrying a book or other written material in a foreign language. According to GISTI: “Neither clothing, physical appearance, nor even the fact of speaking in a foreign language, and certainly not skin colour, justify the demand for residence permits.”
The use of such identity checks has been defended in Spain, but in 2009 the United Nations Human Rights Committee found the practice violated the right to non-discrimination in a case brought by Rosalind Williams, a black naturalised Spanish citizen. She had been the only person subjected to a police check at a railway station in Valladolid, and also the only black person on the platform at the time.
The judgement in that case said: “The physical or ethnic characteristics of the persons targeted should not be considered as indicative of their possibly illegal situation in the country. Nor should identity checks be carried out so that only people with certain physical characteristics or ethnic backgrounds are targeted. This would not only adversely affect the dignity of those affected, but also contribute to the spread of xenophobic attitudes among the general population; it would also be inconsistent with an effective policy to combat racial discrimination.”
If, despite all this, the Cour de Cassation nevertheless finds in favour of the government legal department's arguments, then just mentioning a possible violation of the laws governing foreigners in a command would be enough for a police officer to justify racial profiling. But in any case, the legal department's argument seems very close to stating – in legal jargon - what the current junior minister for transport, Alain Vidalies, has already said he would prefer to see. Namely “that we discriminate effectively to be efficient rather than remaining spectators”.
And although the government's legal department says in the memo that it could not do other than endorse “the assertion that discrimination based on ethnic origin is, as the European Court of Human Rights emphasises, 'a particularly odious form of discrimination whose gruesome consequences demand particular vigilance and a vigorous reaction on the part of the authorities',” in fact, its entire argument reveals that it does not consider that racial profiling forms part of such discrimination.
The case of the two other young men who won their case against the government is slightly different. Their identity papers were checked on October 1st, 2011, when they were sitting at the terrace of a McDonald's restaurant in Villeurbanne, an outer suburb of Lyons in eastern France, ostensibly for possible violations of drug laws. The other people eating there, who were all white, were not checked.
However, the public prosecutor said this was not discriminatory because it was “justified by the attitude of the two men, ... a suspicion that the other people in the restaurant had not provoked”. Yet this attitude and supposed suspicion were not detailed in any way. One of the two men explained that he had his hands under the table with his elbows on his thighs. The police officer who checked his identity papers said he had seen the man smoke a joint and throw it away. But he saw no such thing when it came to the white diners in the restaurant.
The government, leaving no stone unturned, once again serves up the arguments it had put forward in the first and second hearings, that it is up to plaintiffs to bring proof of discrimination, and not for the police to prove it had not discriminated. The ministry also contests statements from witnesses supplied by the men on the basis that they are insufficient. More generally, it rejects the established statistics on racial profiling on the basis that they are “by nature general and unsuitable for characterising a particular serious circumstance in accordance with the specific facts to be established”.
The ministry also discredits the principle of issuing an official notification or receipt for an identity check, although at the hearing, the government's own rights watchdog, the Defender of Rights, argued in favour of setting up a way of tracing identity checks. Given all this contentious argument, the Cour de Cassation's decision is eagerly awaited.
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The French version of this article can be found here.
English version by Sue Landau and Michael Streeter