Advocates Launch Constitutional Challenge to Ethnic Profiling by French Police

An unprecedented constitutional challenge to the widespread use of ethnic profiling by French police has been launched this week by more than 50 French lawyers, with the support of the Open Society Justice Initiative.

The legal challenge marks the first time abusive French policing efforts directed at the country’s Arab and African communities have been challenged on constitutional grounds.

“France needs to put an end to the illegal and unfair targeting of young people belonging to ethnic minorities,” said James Goldston, executive director of the Open Society Justice Initiative.

The challenge argues that excessively broad police powers are enabling arbitrary and discriminatory police checks of French residents of minority origin, and that this violates a range of fundamental constitutional principles, including the right to non-discrimination and equality before the law and the right to freedom of movement.

Goldston added: “Key steps to addressing this problem would include introducing a clear, reasonable suspicion standard for police checks; recording police checks and make these records public; and creating an independent monitoring mechanism. A finding by the Constitutional Council that the current legal framework is unconstitutional will provide an impetus for these changes.”

The French lawyers are employing a recently introduced legal mechanism (Question Prioritaire de Constitutionnalité) that enables relevant cases over a two week period to be passed rapidly from local courts across the country to the highest court in France’s judicial system, the Cour de Cassation. The Cour de Cassation will then decide whether to refer the cases on to France’s Constitutional Council.

Several cases have already been passed to the higher court, including one from Lyon and one from Creteil, a suburb of Paris. Both involve a regulation that authorizes police to carry out identity checks on purely subjective grounds.

The legal arguments have been developed by a team of lawyers with the contribution of constitutional law expert Dominique Rousseau. The challenge is being pleaded before the courts by Bourdon Voituriez Burget, a Paris-based law firm, and lawyers of the Syndicat des Avocats de France.

In 2009, the Open Society Justice Initiative published research based on the observation of over 500 stops by police in Paris, which showed that black people were six times more likely than whites to be stopped; while Arabs were stopped 7.6 times more than whites.;

Under Article 78-2 of the Code of Criminal Procedure, French police can stop any person and request their identity documents with no basis in objectively suspicious behavior. These broad powers provide police officers wide discretion to stop and check individuals, opening the door for discriminatory and arbitrary application of the law.