ETHNIC PROFILING IN FRANCE
Statement Submitted by the Open Society Justice Initiative
For consideration by the United Nations Commission on the Elimination of Racial
Discrimination
at its 77th Session, on the occasion of its Periodic Review of France
August 11-12, 2010
I.
Introduction
1. The Open Society Justice Initiative (“the Justice Initiative”) respectfully submits
the attached analytical report detailing the prevalence of ethnic profiling in
France, for the information of the Committee on the Elimination of Racial
Discrimination (“the Committee”) at its 77th Session, on the occasion of its
periodic review of France. This letter highlights key elements of these laws,
policies, and practices that are pertinent to the Committee’s periodic review of
France’s compliance with its obligations under the International Convention on
the Elimination of All Forms of Racial Discrimination (the “Convention”).
2. The Justice Initiative uses law to protect and empower people around the world.
Through litigation, advocacy, research, and technical assistance, the Justice
Initiative promotes human rights and builds legal capacity for open societies. We
foster accountability for international crimes, combat racial discrimination and
statelessness, support criminal justice reform, address abuses related to national
security and counterterrorism, expand freedom of information and expression, and
stem corruption linked to the exploitation of natural resources.
3. French police disproportionately target ethnic and religious minorities for stops,
identity checks and searches as a matter of everyday practice. This practice –
known as “racial or ethnic profiling” and in France often termed “contrôle aux
faciés” - has been reported by non-governmental organizations, academics, media
and police oversight bodies for many years. Furthermore, new forms of ethnic and
religious profiling appeared since 2001 in the realm of counter-terrorism, and
French authorities have, among other counter-terror tactics, created special offices
that explicitly single out “radical Islam” as a target of enforcement activities.
Ethnic and religious profiling in France continues today, and appears to be
increasing under pressures on police to tighten the enforcement of immigration
law.
4. The ongoing occurrence of racial and ethnic profiling, together with the French
government’s failure to take the necessary steps to prohibit, eliminate and provide
effective judicial protection against such practices, violates Articles 2, 5 and 6 of
the Convention. Accordingly, we ask that the Committee: (i) raise this concern
over ethnic profiling by the French police with the government of France, (ii)
request that authorities explicitly acknowledge that ethnic profiling is widespread
and (iii) recommend a range of further steps to address it in law and practice,
including through judicial and disciplinary accountability and oversight of police
practices as well as through clear commitment and comprehensive action plans.
II.
Violations by France of Articles 2, 5 and 6 of the Convention
5. The term “racial profiling” or “ethnic profiling” describes the use by law
enforcement of generalizations grounded in ethnicity, race, religion, or national
origin—rather than objective evidence or individual behavior—as the basis for
making law enforcement and/or investigative decisions about who has been or
may be involved in criminal activity.1
6. Ethnic profiling constitutes unlawful discrimination. The use of ethnic profiling
both in the context of ordinary policing and in the fight against terrorism both
stems from and reinforces stereotypes that associate minorities, foreigners and
Muslims with criminals, illegal immigrants, extremism, and terrorism. Ethnic
profiling feeds the logic underlying public discrimination, and impedes efforts to
integrate immigrant and minority populations and address racism and xenophobia.
Worse, ethnic profiling stigmatizes entire communities and makes them less
likely to cooperate with police. In addition, ethnic profiling has several immediate
effects on those subjected to it, ranging from deprivation of liberty and invasion
of privacy to less visible but equally insidious and widespread effects such as
increased fear and marginalization. It also often leads to other forms of
mistreatment and abuse and is a key element leading to wider discrimination in
the criminal justice system. Finally, there is no evidence that ethnic profiling has
in fact increased law enforcement effectiveness in general policing or in
combating terrorist violence. In fact, existing studies concur that ethnic profiling
is both ineffective and counter-productive.2
Article 2 Violations
7. The French legal framework regulating the use of identity checks fosters and
facilitates ethnic profiling by law enforcement authorities in direct violation of
France’s obligations under Article 2(c) of the Convention. Article 78-2 of the
Code of Criminal Procedure grants law enforcement officials broad powers to
verify the identity of any person without any requirement that these checks be
based on reasonable suspicion of involvement in crime. Article 78-2 al. 3
2
authorizes identity checks “whatever the person’s behaviour, to prevent a breach
of public order and in particular an offence against the safety of persons or
property.”3 Article 78-2 al. 4 permits identity checks unrelated to behavior within
20 kilometers of any land border as well as “within the areas accessible to the
public in the ports, airports and railway stations open to international traffic and
listed by a ministerial decision”.4
8. In addition, France is in violation of Article 2(d) of the Convention due to the
absence within the French legal framework of a prohibition against discrimination
in key fields of life relevant to ethnic profiling including with respect to the
administration of justice, and protection and security of the person; and the
imposition of restrictions on freedom of movement and residence within the State.
There are no provisions in penal, civil or administrative law that prohibit
discrimination specific to the police or other law enforcement officials in the
exercise of their functions.5
9. The State report submitted to the Committee by the French government indicates
that acts of discrimination by law enforcement officials are prohibited and
punished under Article 432-76 of the French penal code.7 This article does not,
however, cover acts of discrimination by law enforcement officials as it is limited
in scope to acts consisting in: (1) refusing the benefit of a right conferred by the
law; and (2) hindering the normal exercise of any given economic activity. Given
the French penal law principle of ‘strict interpretation’ of penal provisions,8 it
would be most unusual for a French court to identify a ‘right conferred by law’ or
a ‘benefit’ thereof as being prejudiced by profiling practices.
10. Given the nature of ethnic profiling and difficulties of proof, even if a criminal
law provision prohibiting ethnic profiling were to exist (and it does not), Article 2
of the Convention would additionally require such a provision under the civil and
administrative law framework.
11. In its General Recommendation XXXI on the Administration of the Criminal
Justice System, issued in 2005, the Committee urged states to take the necessary
steps “to prevent questioning, arrests and searches which are in reality based
solely on the physical appearance of a person, that person’s colour or features or
membership of a racial or ethnic group, or any profiling racial or ethnic group, or
any profiling which exposes him or her to greater suspicion.”9
Article 5 Violations
12. Ethnic profiling practices in ordinary policing, immigration control and counterterrorism violate “the right to equal treatment before the tribunals and all other
organs administering justice” (5a), “the right to security of person and protection
by the State against violence or bodily harm” (5b) as well as “the right to freedom
3
of movement and residence within the border of the State” (5d)(i). The sections
below provide further details of these practices:
Ordinary Policing
13. French residents of “immigrant origin”10 have long complained that police single
them out for unfair, discriminatory and unnecessary identity checks. Extensive
reports since the mid-1990s by non-governmental organizations (NGOs),
academic institutions and official police oversight bodies support these
allegations. French law does not recognize ethnic differences among its citizens
and France does not collect ethnic statistics. Accordingly, studies have
approximated the extent of ethnic profiling based on examinations of patterns of
over-representation of persons of ethnic minority background and/or immigrant
origin in cases of police abuse and among those persons facing specific charges
(outrages, rebellion, and violence) that emerge from hostile encounters with
police officers. In France, as in other countries, these charges are frequently used
by police as a retaliatory measure to prevent the person stopped from presenting a
complaint when an encounter such as an identity check is poorly conducted and/or
becomes hostile.11
14. From November 2007 to May 2008 the Justice Initiative in collaboration with the
French National Centre for Scientific Research (CNRS) carried out quantitative
observational research of police controls at five Parisian sites to examine whether
and to what extent law enforcement officers stop individuals based on their
appearance. The study found that police stops and identity checks in Paris are
principally based on the appearance of the person stopped, rather than on their
behavior or actions.12 This research, based on over 500 police controls and a
sound scientific methodology, conclusively demonstrated that persons perceived
as “Black” or “Arab” were stopped significantly more than white people.
Depending on the observation site “Blacks” were between 3.3 and 11.5 times
more likely to be stopped and checked than whites; “Arabs” were stopped
between 1.8 and 14.8 times more frequently than whites.13 Follow-up interviews
with the individuals who were stopped also suggest that blacks and Arabs
regularly experience far more police stops than whites.
Immigration Control
15. Increasingly strict immigration enforcement is driving further increases in ethnic
profiling. In order to meet numeric deportation targets imposed by government
authorities, French police are using identity checks in the streets and in public
transportation to find undocumented migrants. Although anecdotal evidence of
such ethnically-disproportionate stops for immigration purposes is widespread, it
is not possible to know for certain how many identity checks are conducted for
each detention of an undocumented migrant. However, the number is likely to be
4
considerable. France has a large population of legal immigrant residents and
second and third generation French-born nationals of immigrant origin
(particularly in the urban areas where immigration stops are concentrated). Many
citizens and legal residents are singled out by police for stops purely on the basis
of their ethnic appearance.
16. Under high-level political pressure, the number of immigration-related charges
has been increasing for several years. In 2003 and 2004, 45,500 foreigners were
charged with violating the immigration laws; in 2006 this number rose to 67,000,
with a further increase to 70,000 in 2007 and 73,000 in 2008.14 Many of these
individuals were also detained, most pending deportation, (35,000 held in
detention in 2007 as compared to 28,000 in 2003).
17. In 2007, the government of France established a Ministry on Immigration,
National Identity and Joint Development (Ministère del’Immigration, del’Identité
nationale et du Codéveloppement) and began to set annual targets for expulsions
of undocumented immigrants from national territory. At the request of the
Ministry on Immigration, French police play an important role in these
enforcement operations. In 2008, the attorney general tasked police with carrying
out identity checks for the purposes of immigration control and with “making the
numbers”—fulfilling the deportation quotas.15 Previously uninvolved with such
operations, the French National Police and Gendarmerie have massively increased
their immigration enforcement, reporting an increase in immigration-related
procedures (such as identity checks and verification leading to detention and
arrest in some cases) of 72.5 percent for the gendarmerie and 21.7 percent for the
national police during the first six months of 2008 compared to the same period in
2007.16
18. It is inappropriate and unlawful for law enforcement officials to rely on
individuals’ physical or ethnic characteristics in identity checks aimed at
controlling illegal immigration. In a landmark ruling, on June 30, 2009, the
United Nations Human Rights Committee ruled in the case of Rosalind WilliamsLecraft vs. Spain that racial profiling constitutes a discriminatory practice that
violates Article 26, read together with Article 2, paragraph 3 of the Covenant:
The Committee believes that it is generally legitimate to carry
out identity checks for the purposes of protecting public safety
and crime prevention or to control illegal immigration. However,
when the authorities carry out these checks, the physical or
ethnic characteristics of the persons targeted should not be
considered as indicative of their possibly illegal situation in the
country. Nor should identity checks be carried out so that only
people with certain physical characteristics or ethnic
backgrounds are targeted. This would not only adversely affect
the dignity of those affected, but also contribute to the spread of
5
xenophobic attitudes among the general population; it would also
be inconsistent with an effective policy to combat racial
discrimination.17
19. The UNHRC concluded that the law should be changed, that there should be a
public apology to Williams, and that Spain must "take all necessary measures to
prevent its officials from committing acts as in the present case."18
Counter-Terrorism Operations
20. Another factor that has driven an increase in ethnic and religious profiling is the
development of new counter-terrorism tactics and the aggressive use of broad
laws in a manner that targets Muslims, based not on their actions, but on
stereotypes associating certain forms of religious practice with current terror
threats inspired by or supported by Al Qaeda.
21. In 2005, the Ministry of the Interior created “regional centers to combat radical
Islam” (pôles régionaux de lutte contre l'Islam radical) in each of France’s 22
metropolitan regions.19 Each center is headed by a representative of the
intelligence services (Direction Centrales des Renseignements Généraux, or RG)
and works with representatives of a wide range of government agencies including
police, public hygiene, public safety, revenue and taxation, and labor. The
centers’ mandate is broad—to monitor, disrupt, and cut off the support base of
“radical Islam” in France.
22. The “regional centers to combat radical Islam” conduct raids on French Muslimowned businesses and mosques, ostensibly aimed at disrupting the support base of
“radical Islam” rather than at arresting actual terrorist suspects or preempting
specific attacks. According to official figures, in 2005 the regional centers
conducted checks of 47 mosques and prayer halls, 473 businesses, and 85 cafes
and call centers. These resulted in 276 judicial penalties (reportedly unrelated to
terrorism) and 310 administrative penalties.20 In 2005, in the greater Paris region
alone, 88 raids were carried out involving 1,173 people, 185 of whom were taken
into custody and eight of whom were charged with judicial or administrative
sanctions.21 Activities increased in the Paris region in 2006, with 93 raids carried
out between January 1 and May 15, 2006.22
23. In addition to raids and surveillance activities, the centers use administrative
powers such as health or business regulations to impede and disturb businesses
where “radical Islamists” are thought to meet or that are suspected of providing
financial support to “radical Islamist networks.”23 These have exacted a heavy toll
on targeted communities with no demonstrable counterterrorism results. Some
French officials have stated that these raids do not serve to detect terrorism, but to
deter it, and that the collateral damage to Muslim communities is an acceptable
6
cost.24 We are not aware of any further official statistics on the activities of the
regional centers that may have been released by the government. Absent further
information from the authorities, the existence of official bodies that explicitly
target specified religious practice (rather than any action or demonstrated intent to
act against the state) as a basis for heightened scrutiny, raids, and detentions, is a
form of discrimination, and these centers should be abolished.
24. In recent years, particularly in the immediate aftermath of the September 11, 2001
terrorist attacks in New York City, French authorities have made extensive use of
broad legal powers to detain terrorist suspects known as AMT or association de
malfaiteurs en relation avec une enterprise terroriste) that penalizes participation
in a group or association formed for the purpose of preparing a terrorist act.25 In
practice, the law means individuals can be detained without proof of their
involvement in the planning of a terrorist act or even a precise plan for the
execution of a terrorist act.26 Many of these arrests appear primarily based on
ethnic and religious profiling rather than evidence of involvement in terrorism;
and questioning often focuses heavily on the nature of religious belief and
practice.27 Official statistics indicate that of a total of 358 persons detained in
antiterrorism operations in September 2005, for example, 300 were charged solely
under the terrorist association provision of the AMT.28
25. The legitimate aim of counter-terrorism cannot serve as justification for the
wholesale targeting of ethnic and religious minorities based on broad stereotypes.
The CERD has made this clear in its General Recommendation No. 30 on the
Rights of Non-Citizens, wherein it emphasized that the prohibition against racial
discrimination is a peremptory—hence, non-derogeable—norm, and states must
ensure that counterterrorism programs do “not discriminate in purpose or effect
on grounds of race, colour, descent or national or ethnic origin and that noncitizens are not subjected to racial or ethnic profiling or stereotyping.29
Article 6 Violations
26. Individuals who are victims of ethnic profiling do not enjoy “effective protection
and remedies, through the competent national tribunals and other State
institutions”. In theory, despite the broad nature and large margin of discretion
given to law enforcement authorities under Article 78-2 of the Code of Criminal
Procedure, victims of ethnic profiling should nonetheless be able to turn to the
Courts. (In a 1993 decision on the constitutionality of sub-sections 2, 3 and 4 of
Article 78-2, the French Constitutional Council noted that judicial authorities may
assess whether objective reasons existed for an identity check, thus evaluating the
concerned person’s behavior.30). In practice, however, victims of identity checks
that do not result in arrest, detention, or other repressive measures are unable to
challenge the discriminatory nature of an identity check a posteriori. Victims of
such checks, even frequent and repeat checks, do not have means to prove that
7
such checks were based on their physical or ethnic characteristics. Law
enforcement authorities are not obliged to provide any reasons for suspicion to an
individual checked and the person receives no written document or other form of
proof that the check even took place. Thus, notwithstanding the pervasive nature
of police checks disproportionately targeting ethnic and religious minorities, the
Justice Initiative is aware of no case in which an individual subjected to an
identity check (that did not lead to an arrest or charge) has been able to prove in
court that the action was discriminatory.
27. In 2000 France created an independent administrative authority, the National
Commission on the Ethics of Public Security (CNDS), with responsibility for
ensuring compliance with ethical rules by persons engaged in security-related
activities on French territory. While the Commission issued a number of decisions
finding discrimination by law enforcement authorities, in this area, as others, the
Ministry of Interior has not consistently followed up on its recommendations. The
government has proposed a draft law that would amalgamate several human rights
oversight bodies, including the CNDS, into a new human rights defender’s office.
By eliminating a specialized body with expertise in investigating complaints
against the police, it is feared this development will weaken police oversight.
Civil society representatives have voiced concern that the rules of election and
composition of the new body will detract from the institution’s independence.
Former CNDS staff noted that they have faced dramatic increases in numbers of
complaints (a 50 percent increase in 2009 from 2008) and continued to confront
slow and hostile responses to their findings from the Ministry of the Interior and
police unions.31 The law remains under discussion in the legislature at time of
writing.
28. Other control mechanisms listed by the government in their State report cannot be
considered as institutions providing independent oversight that provide effective
protection and remedies for ethnic profiling. The High Authority for the Fight
against Discrimination and for Equality (Haute Autorité de Lutte contre les
Discriminations et pour l’Égalité or HALDE), has yet to issue a decision in a case
of ethnic profiling, Under the proposed law, it too will be amalgamated into a
general human rights defender institution. The General Inspectorate of the
National Police (IGPN) and General Inspectorate of the National Gendarmerie are
not independent institutions; both are dependent on the Ministry of Interior.
III.
Conclusions, Questions and Recommendations
29. To date, the French government has not yet recognized ethnic profiling as a
problem to be addressed, nor has it taken effective steps to remedy it. Existing
police training and non-discrimination awareness measures, noted in the state
report, are insufficient to change the operational practice of police and decrease
8
this widespread and serious problem. However, nowhere in the state report is the
problem of ethnic profiling explicitly recognized, nor are the measures described
an adequate response to a problem that studies indicate is worsening rather than
improving.
30. Considerable flaws mar the legislative framework, which is overly broad,
allowing police to conduct highly discretionary identity checks, opening the door
for discrimination. Furthermore, the legal framework does not provide protection
or effective recourse to victims of discrimination by law enforcement officers.
This problem is worsened by the limited and weak mechanisms providing for
police accountability more generally.
31. We urge the Committee to address ethnic profiling described in this submission
when it conducts its periodic review of France’s compliance with the Convention.
In particular, we urge the Committee to ask France’s representatives
questions that would clarify the following:

Given recurrent complaints of ethnic profiling, what measures are you
taking to study and /or monitor the extent of this problem?

Are you taking any steps—in addition to training—to monitor and assure
that police identity checks and stop and search are used fairly and
effectively?

Are there mechanisms for pursuing civil and administrative redress and, if
not, is consideration being given to enacting civil and administrative
legislation to prohibit discrimination by law enforcement officials in the
performance of their functions?

Is consideration being given to abolishing the “regional centers to combat
radical Islam,” which single out Muslim businesses and places of worship
for official scrutiny and action?
32. The government of France cannot address ethnic profiling effectively until it
recognizes the nature and scope of the problem and strengthens protections in
French law and mechanisms of accountability to the public and within the
operation and supervisory practices of the police and intelligence services.
33. In its Concluding Observations the Committee should express its serious
concern over ethnic profiling practices in France explicitly describing the
different manifestations (in ordinary policing, immigration and counter-terrorism)
and their widespread and serious nature. It should call on France to:
9

Publicly acknowledge the problem of ethnic profiling by police and
commit to address it;

Amend existing legislation governing police powers to require reasonable
suspicion of criminal activity as the basis for identity checks, and clarify
the appropriate grounds for stops, frisks and searches;

Enact in civil and administrative law a prohibition of racial discrimination
by law enforcement authorities (including intelligence services) in the
performance of their duties;

Develop an action plan to address ethnic profiling including:



the maintenance of specialized independent oversight with adequate
resources and powers to investigate police misconduct including ethnic
profiling;
the provision of specific guidance and training for all police officers
on ethnic profiling issues, including with respect to permissible versus
impermissible uses of appearance in conducting identity checks; and
the recording of all police stops and providing each individual stopped
with a record of the stop that can be assessed on grounds of efficiency
and fairness, and used in administrative or judicial proceedings as a
basis for assessing the legality of the stop;

Abolish the “regional centers to combat radical Islam,” and take steps to
ensure that all raids are based on clear evidence of violations of the law.

In follow-up reporting, provide the Committee with statistical information
about the activities of the “regional centers to combat radical Islam” over
the last years, including locations checked, administrative sanctions and
the results of these activities;

In follow-up reporting, provide the Committee with statistical information
about the total number of identity checks and searches carried out in the
last years in France; and the efficacy of such checks as shown by the
number that resulted in further action such as a citation, arrest, seizure of
contraband or weapons, or violation of immigration law.
34. The Committee should also require the French government to report on its
implementation of efforts to eliminate ethnic profiling in its future periodic
reports to the CERD.
10
ENDNOTES
1
Ethnic profiling is a term of art that describes discriminatory law enforcement. It should not be confused with
“profiling” or “criminal profiling” which refers to a police practice in which a defined set of characteristics is used to
look for and apprehend someone who has committed a crime (criminal profiling) or to identify people likely to engage
in criminal activity (behavioral profiling). Criminal and behavioral profiling are accepted and lawful policing tools
designed to allow the most efficient allocation of scarce law enforcement resources. As long as the profiles used by
police are based on specific information about an individual or factors that are objective and statistically proven to be
significant indicators of criminal activity, profiling is legal.
See Open Society Justice Initiative, Ethnic Profiling in the European Union; Pervasive, Ineffective and
Discriminatory, OSI: New York, 2009.
2
Code of Criminal Procedure, (Code du Precédure Pénale) Article 78-2 al. 3: “The identity of any person may also be
checked pursuant to the rules set out in the first paragraph, whatever the person's behaviour, to prevent a breach of
public order and in particular an offence against the safety of persons or property.” Official translation, available on
legifrance at: http://195.83.177.9/code/liste.phtml?lang=uk&c=34&r=3914#art17090.
3
Code of Criminal Procedure, (Code du Precédure Pénale), Article 78-2 al. 4: “In an area included between the land
border of France with the States party to the convention signed in Schengen on 19 June 1990, and a line drawn 20
kilometers behind it (provisions declared unconstitutional by the Constitutional Council, no. 93-323 DC of 5 August
1993) as well as within the areas accessible to the public in the ports, airports and railway stations open to international
traffic and listed by a ministerial decision (provisions declared unconstitutional by the Constitutional Council, no. 93323 DC of 5 August 1993), the identity of any person may also be checked according to the rules set out in the first
paragraph in order to ensure the observance of the duty to hold, carry and present for inspection the papers and
documents provided for by law. Moreover, where there is a section of motorway starting in the aforementioned area,
and the first motorway toll is situated beyond the 20 kilometer line, the identity checks may be carried out as far as the
first toll, in any stopping places as well as on the toll itself and adjoining stopping places. The tolls affected by this
provision are specified by a ministerial decision. The fact that the identity check reveals an offence other than the nonobservance of the aforementioned duties does not amount to a ground of nullity for any incidental proceedings.”
Official translation, available on legifrance at:
http://195.83.177.9/code/liste.phtml?lang=uk&c=34&r=3914#art17090.
4
5
French National Police are bound by the National Police Code of Conduct (Code de déontologie de la Police
Nationale) Decree No. 86-592 of March 18, 1986 on the Code of Ethics of the National Police (Décret n° 86-592 du 18
mars 1986 portant code de déontologie de la police nationale), available at
http://www.interieur.gouv.fr/misill/sections/a_l_interieur/la_police_nationale/deontologie/codedeontologie. This code
prohibits discrimination and describes polite and respectful treatment. It applies to the National Police only (including
those who exercise immigration and counter-terrorism functions), not the Gendarmerie Nationale or the customs
authorities. Municipal police forces have their own, nearly identical code.57 These codes of ethics do not specify race
or ethnic origin as specifically prohibited grounds for discrimination. Article 7 of the National Police Code of Conduct
mandates that: “…in the service of the public, police officials are to behave towards the public in an exemplary
manner. They are to demonstrate an absolute respect of all persons, whatever their nationality or their origin, their
social situation, or their political, religious or philosophical beliefs.”
6
Code of Criminal Procedure (Code du Precédure Pénale), Article 432-7, (Ordinance no. 2000-916 of 19 September
2000 Article 3 Official Journal of 22 September 2000 in force 1 January 2002). Discrimination defined by article 2251, committed in respect of a natural or legal person, by a person holding public authority or discharging a public service
mission, in the discharge or on the occasion of that office or mission, is punished by five years' imprisonment and a fine
of €75,000 where it consists: 1° of refusing the benefit of a right conferred by the law; 2° of hindering the normal
exercise of any given economic activity. Official translation at:
http://195.83.177.9/code/liste.phtml?lang=uk&c=33&r=3808#art16611.
7
UN Committee on the Elimination of Racial Discrimination, Rapports présentés par les Etats parties qui devaient
être présentés par les Etats parties conformément à l’article 9 de la Convention, Dix-septième, dix-huitième et dix-
11
neuvième rapports périodiques des États parties qui devaient être présentés en 2008 : France, UN Doc.
CERD/C/FRA/17-19, May 22, 2009, para. 268.
8
In a recent case before the Court of Cassation, the Prosecutor general emphasized that a discriminatory identity check
could not be qualified as a form of discrimination under article 432-7 of the Code of Criminal Procedure. In this case
of defamation of the police, a judge and member of an association of judges (the Sindicat de la magistrature), Clément
Schouler, was charged on the basis of a book published by the Sindicat de la magistrature, titled “Vos papiers! Que
faire face à la police?”, which featured a cartoon of a police officer with porcine features on its cover. Schouler was
fined €800.
9
UN Committee on the Elimination of Racial Discrimination, General Recommendation XXXI on the Administration of
the Criminal Justice System, UN Doc. A/60/18, pp/ 98-108 (2005), para. 9.
10
This includes second and third generation immigrants.
11
Amnesty International, France: Shootings, Killings, and Alleged Ill-Treatment by Law Enforcement Officers
(London: Amnesty International, 1994). This report found that a high proportion of victims of police abuse in France
were of non-European ethnic origin, mostly from the Maghreb, the Middle East, and Central and West Africa. The UN
Human Rights Committee, in its Concluding Observations of the Human Rights Committee: France (1997), UN Doc.
CCPR/C/79/Add.80, para. 16, noted its serious concern “at the number and serious nature of the allegations it has
received of ill-treatment by law enforcement officials of detainees and other persons who clash with them, including
unnecessary use of firearms resulting in a number of deaths, the risk of such ill-treatment being much greater in the
case of foreigners and immigrants.” The Council of Europe’s Commission against Racism and Discrimination, ECRI,
Second Report on France, (Strasbourg: ECRI, 1999), paragraphs 9 and 19 stated that a high proportion of cases of illtreatment by law enforcement officers involved detainees of non-European ethnic origin, and expressed concern at
“allegations of persistent discriminatory behavior toward the members of certain ethnic groups.”. Amnesty
International,
Annual
Report
2004—France
(London:
Amnesty
International,
2004),
http://www.unhcr.org/refworld/type,ANNUALREPORT,AMNESTY,FRA,40b5a1f44,0.html stated that: “The number
of complaints of ill-treatment [by police] in France has increased in recent years […] especially in the context of police
identity checks or in police custody, has also been detected. Identity checks often degenerate into violence and, in many
cases, this is the result of aggressive or insulting conduct of law enforcement.” Fabien Jobard and M. Zimolag studied
hundreds of court case files of charges of outrages, rebellion, and violence; their findings indicated increasing in
encounters between minority youth and police with over-representation particularly of persons of Maghreb origin in
those charged, and higher conviction rates of this group than white persons facing the same charge ( “When the police
go to court; Analysis of a sample of judgements in cases of offenses against public authorities in a local court in Paris,
(1965-2003),” Questions Pénales, No. 97, March 2005. The Commission Nationale de Déontologie de la Sécurité
(CNDS) made a study on discrimination in its 2005 annual report that stated that it was “[s]truck by the color of the
skin and the statistical frequency of foreign persons, or persons having foreign sounding names,” among victims of
police ill-treatment, noting the over-representation of young North African (Maghreb countries) and African males.
The report added that these incidents frequently arose from: “identity checks on a purely preventive basis.” CNDS,
“Etude sur la part des discriminations dans les manquements à la déontologie,” in Rapport 2004 (Paris: April 18, 2005).
In 2009, Amnesty International noted that charges of outrage and rébellion made by police against persons following a
violent incident in which the individual has made a complaint of ill-treatment against the officers or where passerby
attempted to intervene when witnessing police apparently ill-treating a third party. Amnesty International, Public
Outrage: Police Officers Above the Law in France, London: Amnesty International Publications (2009).
Open Society Justice Initiative, Police et minorités visibles: les contrôles d’identité à Paris (New York, 2009). This
study was conducted in five Paris locations in an around the Gare du Nord and Châtelet-Les Halles rail stations,
important transit points with a high level of police activity. The study gathered data on police stops, including data on
perceived ethnicity, age, gender, clothing, and the bags carried by persons who were stopped. The research gathered
information on over 500 police stops and compared this to a population benchmark of 32,000 persons gathered at the
same locations and times as the stops, and provides the first quantitative data to identify patterns of ethnic profiling in
France.
12
13
Ibid.
Ministry of Immigration, Les Orientations de la politique d’immigration (Rapport du ministère
de l’immigration au Parlement) Art. L-110-10 CESEDA, 2008, para. 77.
14
12
15
Ibid, para. 79. For train stations and other rail areas, a specific regulation was passed in January 2006 that charged
those police forces responsible for rail security (including the National Police and the SNPF) to combat illegal
migration.
Ministry of Immigration, Les Orientations de la politique d’immigration (Rapport du ministère
de l’immigration au Parlement) Art. L-110-10 CESEDA, 2008, para. 92.
16
17
UN Human Rights Committee, Views Communication No. 1493/2006, UN Doc. CCPR/C/96/D/1493/2006, para. 7.2.
18
Ibid, para. 9.
See Jean-Patrick Courtois, “Law on the fight against terrorism providing diverse dispositions for the border controls
and security,” Paris: Report on behalf of the Commission on Laws, Ordinary session 2005-2006: Annex to the Senate
session record of December 6, 2005, available at: http://www.senat.fr/rap/l05-117/l05-1177.html. See also, Piotr
Smolar, “Anti-Terrorism, according to the head of the RG,” Le Monde, November 24, 2005, “When businesses hide
clandestine prayer halls,” Agence France Presse, September 26, 2005.
19
Piotr Smolar, “Disruption of the locations where radical Islam is spread,” Le Monde, April 11, 2006. Smolar reports
that the judicial charges are typically deportations or restraining orders (interdiction d'exercer une activité), while other
are administrative charges on grounds such as sanitation or tax matters.
20
21
22
Ibid, and “The French lesson, Europe and terrorism,” The Economist, August 13, 2005.
Jean Chichizola, “Radical Islam : the greater Paris area police increases its discoveries,” Le Figaro, May 18, 2005.
“Created at the end of January 2005, the police have been placed under the authority of the prefects. The principle is
to use all the resources of the administrative police in order to disrupt the small businesses and meeting places used by
radical militants.” Piotr Smolar, “Disruption of the locations where radical Islam is spread,” Le Monde, April 11, 2006.
“The aim is to destabilize radical Islam in the very early stages, without disturbing the actions or framework of the
intelligence services nor interfering with Republican Islam, explains the head of the intelligence services, Pascal
Mailhos.”
23
Alain Chouet, former head of France's external intelligence agency, told Le Figaro: “One cannot quite imagine
Anglo-Saxon countries imitating our tactic of harassment, sometimes without real elements of proof. Sometimes it’s a
bit border-line, but it upsets the networks, prevents them from taking action.” Cited in “The French Lessons, Europe
and Terrorism,” The Economist, August 13, 2005.
24
Article 421-2-1 of the French Penal Code designates as an “act of terrorism” participation in any group formed or
association established with a view to the preparation, marked by one or more material actions, of any of the acts of
terrorism provided for under the previous articles….” “Previous articles” identify conduct considered to constitute acts
of terrorism “where they are committed intentionally in connection with an individual or collective undertaking the
purpose of which is seriously to disturb public order through intimidation or terror”. Official English translation,
available on “legifrance” at http://195.83.177.9/code/liste.phtml?lang=uk&c=33&r=3794#art16569.
25
Michael McColgan and Alessandro Attanasio, “International Mission of Inquiry France: Paving the Way for
Arbitrary Justice,” Paris: International Federation of Human Rights Leagues (March 1999), para.9, citing Yves
Mayaud, Le Terrorisme (Paris: Dalloz, 1997), at 29.
26
27
Isabelle Coutant-Peyre, who has defended numerous individuals charged with AMT offenses, commented that at
least half of the questions asked when in police detention are about how individuals practice their religion (Justice
Initiative Interview, Isabelle Coutant-Peyre, Paris, June 2006). Jacques Debray, an experienced defense lawyer in
terrorist association cases, commented: “They are asked if they are religious, how they practice their religion, how
many times they pray, whether they follow Ramadan…When you see this, you wonder.…There really is a
stigmatization of Muslims… It is on the edge of a caricature: Muslim equals fanatic equals terrorist” (Justice Initiative
Interview, Jacques Debray, Paris, July 2006).
13
28
Piotr Smolar, “French jails contain 358 persons detained for activism , Le Monde, September 9, 2005.
29
CERD, General Recommendation No. 30 on the Rights of Non-Citizens , at paragraph 6. This general comment is
complemented by the Office of the High Commissioner for Human Rights (UNHCHR), which has reaffirmed the
fundamental nature of the non-discrimination requirement following the September 11, 2001 terrorist attacks. “The
principle of nondiscrimination must always be respected and special effort made to safeguard the rights of vulnerable
groups. Counterterrorism measures targeting specific ethnic or religious groups are contrary to human rights and would
carry the additional risk of an upsurge of discrimination and racism (UN Office of High Commissioner for Human
Rights, Digest of Jurisprudence of the UN And Regional Organizations On the Protection Of Human Rights While
Countering Terrorism, p. 5. In addition, international jurisprudence has settled that non-discrimination is a customary
norm of international law. In Barcelona Traction, the International Court of Justice observed that “racial
discrimination” is among the “principles and rules concerning the basic rights of the human person” which are
obligations erga omnes as a matter of customary international law. International Court of Justice, ICJ Reports (1970), 3
at 32. The International Covenant on Civil and Political Rights, Art. 4, and the European Convention on Human
Rights, Art. 15 (authorizing derogation for most rights, including Article 14, “in time of war or other public emergency
threatening the life of the nation”) provide that non-discrimination is not one of the rights not subject to derogation
during a “public emergency which threatens the life of the nation and the existence of which is officially proclaimed.”
Nonetheless, any derogating measures must “not involve discrimination solely on the ground of race, color, sex,
language, religion or social origin.” ICCPR, Art. 4(1). See also Human Rights Committee, General Comment 29,
States of Emergency (article 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001), at para. 8: “Even though article 26 or the
other Covenant provisions related to non-discrimination (articles 2, 3, 14, paragraph 1, 23, paragraph 4, 24, paragraph
1, and 25) have not been listed among the non-derogable provisions in article 4, paragraph 2, there are elements or
dimensions of the right to non-discrimination that cannot be derogated from in any circumstances. In particular, this
provision of Article 4, paragraph 1, must be complied with if any distinctions between persons are made when resorting
to measures that derogate from the Covenant”.
30
Decision no. 93- 323 DC of 5 August 1993.
31
Médiapart," Pourquoi la CNDS déplait aux autorités, » Nathalie Duhamel, ex Secrétaire Générale de la CNDS," May
18 2010.
14