Ethnic Profiling Challenge in France Moves Forward

NEW YORK—A groundbreaking constitutional challenge to the widespread use of ethnic profiling by French police took a major step forward this week, as judges from across the country agreed to refer cases heard before local courts to the highest court in France’s judicial system.

The legal effort, launched by more than 50 French lawyers and supported by the Open Society Justice Initiative, marks the first time abusive French policing tactics directed at the country’s Arab and African communities have been attacked on constitutional grounds.

“In the decade since 9/11, ethnic profiling has emerged as a major human rights problem in France and across the EU,” said James A. Goldston, executive director of the Open Society Justice Initiative. “This first-ever lawsuit in France offers a chance to end a policing practice that is as discriminatory and illegal as it is pervasive.”

The cases will now be put to the Cour de Cassation, which will decide by September if they warrant consideration before the France’s Constitutional Council.

The individual cases, from Lyon, Paris, and Creteil, each of which began with an identity check, will be bundled together as part a new legal procedure (Question Prioritaire Constitutionelle) that gives French citizens a right to directly challenge the constitutional basis of the country’s laws.

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.

A Lyon judge highlighted the lawyers’ argument that individuals who are stopped for ID checks receive no document indicating that the stop took place or the conditions of the check. This makes it impossible for judges to verify their legality.

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.