France: Council of State Admits Racial Profiling however Orders No Motion

(Paris) – France’s Council of State on October 11, 2023, acknowledged the existence of discriminatory police checks that constitute a “blatant disregard of the prohibition of discriminatory practices.” However, the Council of State decided not to exercise its authority to order the French state to take the necessary measures to end the practice, according to six groups involved in an unprecedented class action suit against racial profiling during police stops.

The six plaintiff groups taking part in the class action to put an end to racial profiling note that France’s highest administrative court recognizes the “existence of a practice of identity checks motivated by the physical characteristics, associated with the real or perceived origin of the person checked” and affirms that this practice is not limited to “isolated cases.” The Council of State considered that this constitutes a “blatant disregard of the ban on discriminatory practices.”

At the hearing on September 29, Me Antoine Lyon-Caen, lawyer for the plaintiff groups, described these abusive police stops as “a scourge for our entire society.”

However, the groups deeply regret that the Council of State did not see fit to order the government to take the recommended measures to remedy the situation. This ruling is particularly painful for the many people subjected to abusive controls on a daily basis, with the associated violence and humiliation. The victims hoped they could rely on the law and justice to ensure that France would comply with its obligation under international human rights law to guarantee the principle of nondiscrimination.

This discriminatory practice in France has been widely documented and denounced for years by human rights groups, academics, and independent bodies such as the Human Rights Defender and the Council of Europe’s European Commission against Racism and Intolerance. The decision by the Council of State, which comes after a decision of the Court of Cassation (a lower court), in 2016 that found the French government guilty of “gross misconduct that engages the responsibility of the state” in five cases of racial profiling, marks a new and definitive step in the recognition of the scale and severity of the problem.

The groups said that the French government should stop denying the practice of ethnic profiling by the police and end its persistence in claiming that identity checks on the basis of appearance are merely a result of inappropriate individual conduct by certain officers. They said that French authorities should take the necessary measures that will effectively address the structural nature of the practice. It is urgent for the government to respect its obligation under international human rights law to end discrimination, as repeatedly urged by national and international human rights bodies.

Despite the evidence presented by the groups, demonstrating that measures the government claims to have taken to prevent discriminatory checks, such as body cameras and a recently created complaints platform, are profoundly inadequate and insufficient to end systemic discriminatory practices by the police, the Council of State said it could not order new measures, taking the view that this was up to parliament.

The associations regret that the Council of State passed on the important opportunity to make full use of the authority it has under a 2016 law to order the government to take appropriate measures to put an end to a systemic discriminatory practice. By not requiring the government to stop and prevent racial discrimination, deemed particularly “odious” by the European Court of Human Rights, the Council of State has shown it failed to grasp the seriousness of the negative impact this practice has on affected people’s daily life and society as a whole.

Despite this disappointing ruling, the plaintiff groups intend to continue their fight against systemic ethnic identity checks in France. They point out that these unacceptable abusive checks constitute institutional racism, which in too many cases leads to physical violence by the police or even death for some of the people being checked. The class action case is part of a long history of mobilization against abusive policing, particularly against young people from working-class neighborhoods who are disproportionately targeted by these abuses.

The plaintiff groups, the Maison Communautaire pour un Dévelopement Solidaire (Community House for Solidarity Development, MCDS), Pazapas, Réseau Egalité, Antidiscrimination, Justice Interdisciplinaire (Equality, Anti-discrimination, Interdisciplinary Justice Network, REAJI), Amnesty International France, Human Rights Watch, and Open Society Justice Initiative, and their counsel, Me Antoine Lyon-Caen, are considering what the next steps will be.