Class Action Lawsuit against French Government for Ethnic Profiling by Police

Issue

Ethnic profiling is a pervasive and systemic problem in French policing. An especially widespread occurrence involves disproportionate targeting of young men for identity checks, frisks, and searches based on their skin color, presumed ethnicity, “race”, religion, or national origin. These identity checks are discriminatory and therefore illegal. They also breach other fundamental rights, such as freedom of movement, private and family life, and respect for human dignity. Despite numerous reports by academics and national and international independent institutions denouncing this illegal practice, grassroots mobilizing calling for change, and court rulings against the French authorities, the French authorities have failed to address the problem.

Proceedings

Six non-governmental organizations (NGOs) have initiated the first class action procedure against the French authorities for discriminatory identity checks, making use of a law adopted in November 2016. This groundbreaking procedure can result in ‘structural remedies’ that directly tackle the root causes of ethnic profiling at an institutional level through Court orders directing the French government to act. Such remedies are different from ‘damages’ or ‘compensation’ in that they require the authorities to make changes to the ‘system’ through policy and/or law reform. Given the centralized nature of French policing, this legal procedure provides an opportunity to seek systemic reforms based on a binding legal judgment applicable nationwide.

There are two phases to a French class action. First, the plaintiffs must file a Letter of Notice with the defendants, which opens a four-month negotiation phase. If negotiations are not successfully concluded, the plaintiffs can bring the case before the Court and ask the Court to order the government to take all measures needed to put an end to discriminatory identity checks.

The six NGOs delivered such a letter to the French Prime Minister, Minister of the Interior, and Minister of Justice on January 27, 2021.

As the French authorities did not engage in discussions, or even acknowledge receipt of the letter, the NGOs decided to bring the case to the Council of State.

Open Society Justice Initiative Involvement

The Open Society Justice Initiative is one of the NGO plaintiffs, together with Amnesty International France, Human Rights Watch, and three French grassroots organizations: la Maison communautaire pour un développement solidaire (MCDS), Pazapas, and Réseau égalité antidiscriminations justice interdisciplinaire (REAJI).

Arguments

A failure of the French state to put an end to ethnic profiling

The plaintiffs allege that the French state is responsible for discrimination due to its failure to adopt concrete and effective measures to bring an end to widespread discriminatory identity checks. To demonstrate such failure, the plaintiffs presented extensive evidence of three kinds:

1. Testimony from dozens of individuals who have been the targets or witnesses of discriminatory identity checks by the police. Their testimonies demonstrate the persistence of these practices in many cities across France and describe their devastating impacts.
2. Testimonies of police officers who confirm that ethnic profiling is a widespread practice in France.
3. Numerous decisions, opinions, reports, and studies published by academics and independent human rights institutions, at national and international levels, recognizing the existence of discriminatory identity checks throughout France. The plaintiffs also referred to statements made by French officials, including President Emmanuel Macron, who acknowledged the existence of ethnic profiling by the French police.

A widespread and systemic practice on French territory that requires systemic measures

The plaintiffs highlight the longstanding and widespread nature of discriminatory identity checks in France and their deep roots in French policing. They stress that these discriminatory practices are not isolated or exceptional acts committed by individual police officers, but systemic practices resulting from laws, policies, institutional practices, and culture. Putting an end to this problem, therefore, requires a systemic response, involving a comprehensive set of measures that address the different factors that lead to their persistence.

Ethnic profiling violates the right to nondiscrimination and other human rights, including freedom of movement, the right of respect for private life, the right to liberty and security of person, and the right to be free from inhuman and degrading treatment.

Systemic reforms are necessary to end ethnic profiling

The aim of the class action is to obtain the order and implementation of structural reforms that will help efforts to end systemic discrimination by police in France. No one single measure is sufficient to address such a complex problem. Drawing on comparative and national experiences and expertise in this area, the plaintiffs request remedies in four areas:

1. Reform the legal framework authorizing police identity checks. This framework must be modified to expressly prohibit discrimination in identity checks, ban administrative identity checks (these are preventive checks aimed at maintaining public order, authorized regardless of a person’s conduct) and limit police powers so that these checks may only be conducted on the basis of an objective and individualized suspicion of the commission of a crime. Detailed guidelines must be addressed to the police to accompany this legal reform.
2. Reinforce the accountability of the police to the public. Identity checks by the police must be monitored to ensure their compliance with the law and the nondiscrimination principle. Checks should therefore be systematically recorded and a copy of the record provided to each person checked indicating the time, date, location, police identification number, origin of the person checked, legal basis, reasons, and outcome of the check. In addition, anonymized data related to identity checks should be collected and evaluated, and the results made available to the public. Finally, victims’ rights must be strengthened through the creation of a truly independent and effective complaints mechanism.
3. Redefine the professional framework of the police. Police practices and culture must be modified. This requires in particular: identifying and modifying policies that generate discriminatory identity checks, such as quantitative performance targets; strengthening supervision of police officers, including regular evaluation of officers’ interactions with the population and measures, also involving disciplinary sanctions, for discriminatory practices; and reforming police training to ensure a thorough understanding of these measures.
4. Implement and monitor reforms. The implementation of such an ambitious reform will need to be properly monitored and evaluated by an independent body, with the full and effective participation of directly impacted persons and communities.