How France Can Lead the Battle Against Ethnic Profiling in Europe

Ethnic minorities in France have long protested that police target them for unfair, unnecessary, repetitive, and discriminatory identity checks.  Across the country, young men from France’s poor suburbs report being asked to produce their identity documents numerous times a week, sometimes by the same police officers.

The French government continues to deny the existence of ethnic profiling, and refuses to implement any measures to ameliorate and eradicate it.

Now a coalition of French lawyers has taken aim at the legislative underpinning of the ineffective, inefficient, and discriminatory practice: Article 78 of the Code of Criminal Procedure, which grants French law enforcement broad discretion to stop and search individuals for purely subjective reasons which have little to do with suspicious behavior.

If successful, these legal challenges will force the French government to enact new laws that will safeguard against ethnic profiling, becoming the only country in continental Europe to do so.

The coalition, supported with technical assistance from the Open Society Justice Initiative, is questioning the constitutionality of these powers, arguing that they infringe upon the rights to transparency of the law, personal liberty, freedom of movement, and non-discrimination.  Its strategy involves launching multiple cases of discriminatory identity checks throughout France, challenging the different sub-sections of the article 78 powers.

This legal challenge is making use of a ground-breaking procedure – introduced last year – which gives French citizens a new right to directly challenge the constitutional basis of the application of law.

Any person involved in a legal proceeding before a court is now able to raise a “priority constitutional question” (question prioritaire de constitutionalité, or QPC), challenging whether the statutory provisions in question conform with France’s constitutionally-guaranteed rights and freedoms.

First, lawyers must outline the constitutional question they wish to see addressed in challenging the case at a lower court of first instance, which can then rule on whether a particular case meets the criteria set out by the proposed QPC. Once this hurdle has been cleared, the case is referred to a higher court, either the Court of Cassation or the Council of State. They then decide whether or not to refer the question to the Constitutional Council, which will issue a ruling on the substantive questions raised by the applicants.

The innovation in this legal strategy extends beyond the use of the QPC, however. Rarely have French courts been called to adjudicate legislation that is at root of widespread, abusive government practices. Even rarer is the bringing together of advocates (lawyers, civil society organizations, independent activists) from across the country—their united front against discriminatory identity checks in France is lending credibility to the legal challenge.

This innovative legal strategy, covered extensively by French media, has already borne fruit. On Monday, a first instance court in Lyon referred a case challenging the first provision of Article 78 to the Court of Cassation. On Tuesday, a judge in Créteil, a Parisian suburb, did the same.  These early successes are all the more remarkable because only about 6 percent of would be QPCs are referred to higher courts.

In the next few weeks, additional cases challenging the other provisions of Article 78 of the Code of Criminal Procedure will be filed in different French courts.