Thursday, April 12, 2012

France: Challenging Police Profiling in France

Source: Open Society Foundations

Challenging Police Profiling in France

April 11, 2012 | by Lanna Hollo and Rachel Neild

On March 26, fifteen individuals filed civil law suits before the Tribunal de Grande Instance de Paris against the French state for racial profiling. The complaints seek damages from the Ministry of Interior for the illegal actions of its agents. This is the first major legal action in France to address long-standing discriminatory practices in police use of identity checks to target visible minorities.

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 racial, or ethnic profiling, constituting discrimination which is illegal according to the French Constitution and international law.

Nadir and Armel, both university students, were sitting outside at a MacDonald’s restaurant in Lyon one evening in October 2011 when a police car stopped nearby and approached them. They were asked to show their identity papers and frisked. They were the only non-whites amongst the crowd sitting at the restaurant and the only ones checked. They are both regularly checked, sometimes up to 10 times in a single month.

Bocar, who works with a local elected official, was stopped by police in front of his house in the Paris area, early one evening in November 2011. The police officer pushed him up against a wall, kicked open his legs and frisked him before checking his identity documents. The officer also threatened him with a Tazer during the check.

In Karim’s case, he was standing with a few friends talking in the centre of Besancon in December 2011, when the group was asked by 3 police to show their identity documents. While frisking Karim, one of the officers told him: “you are fat, you need to lose weight, do some sports.” He also hit him on the left cheek. In the summer when he was frequently in the city centre, Karim could be checked 3 to 4 times in a single day. Now he tries to avoid going to the city centre in order to avoid these checks.

For decades, individuals and non-government organizations have documented discriminatory identity checks targeting visible minorities. Unlike many European countries, profiling has a name in French. It is called the “appearance control” (contrôle au faciès), known more crudely as the crime of having an “nasty face” (delit de sale gueule).

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 took no steps to address it.

In 2009, together with France’s National Centre for Scientific Research, Open Society Justice Initiative published a scientific study that provided the first quantitative proof that France’s ethnic minorities are singled out unfairly by police. The study documented over 500 police stops over a one-year period and across five locations in and around the Gare du Nord train station and Châtelet-Les Halles commuter rail station. The data showed, those presumed to be “Black” were, on average 6 times more likely than those presumed to be “White” to be stopped; while those presumed to be “Arab” were 8 times more likely than those presumed to be “White” to be stopped.

Even this was unable to break through the wall of official denial that ethnic profiling takes place in France. Legal action was therefore a logical recourse, if a challenging one.

There is no precedent in France for mounting a legal challenge to discriminatory identity checks that do not result in further legal or administrative action (ie. a simple stop and search). A group of lawyers together with the French lawyers union (Syndicat des avocats de France) and Open Society Justice Initiative spent over a year identifying a legal avenue that they could use to hold the State responsible for this widespread problem as well as a method of proving the problem that would hold up in a court of law.

The difficulty is that there is no specific legal provision that prohibits police discrimination in French law. The lawyers therefore had to find a creative way to challenge this practice using more general civil and administrative provisions in combination with Constitutional guarantees and international law.

Proof was also 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.

After considering complicated, expensive and time-consuming means of collecting evidence, the lawyers decided to follow the “keep it simple” rule. They resorted to a method of proof that is at the very core of French civil procedure: affidavits. There is, after all, no reason that the affidavit of a black or North African man should not carry the same weight in court as that of anyone else, regardless of the person’s social status or place of residence (most of the claimants reside in France’s poor suburbs).

Today’s filing is also the result of a new form of social mobilization in the field of non-discrimination in France. Commonly, the battle for equal rights has taken place on the streets with demonstrations and other forms of political action. And, this mainly focuses on economic and social rights. Here, a wide range of non-governmental organizations, local community leaders, political actors, artists and committed individuals joined together in a coalition called “Stop le controle au facies” to participate in this fight for basic civil rights (non-discrimination, freedom of movement, protection of privacy and against arbitrary deprivation of liberty) using the law. They used innovative methods—such as a series of videos of rappers talking about their personal experiences being stopped and searched—to identify victims of discriminatory stops who would be willing to take on the Ministry of Interior in a legal challenge.

This was no easy task. While a considerable number of visible minorities from all social categories are affected by this problem, few are willing and able to go to Court. Discriminatory stop and searches are such a normal part of daily life for many, that they no longer believe that it is possible to do anything to address them. Police are perceived as operating with near total impunity. Even in cases where police abuse results in significant injuries and death, there is weak official response and, only rarely, a Court ruling that sanctions the officers responsible. Challenging police practices also raises fears of retaliation and other negative consequences.

The case filing is a vindication of all victims, and testimony to the courage of the claimants, even if it is also only the first step of what is likely to be a lengthy legal process.

These fifteen cases will now wend their way through France’s slow, written court procedures. We hope that France’s judges will be more perceptive and attuned than current political authorities to the need to make the “French Republican ideal” a “French Republican reality” and demonstrate a real commitment to equal justice for all.