Briefing Paper on France for the Council of Europe Commissioner of Human Rights

The Open Society Justice Initiative and Human Rights Watch urge the Commissioner for Human Rights of the Council of Europe to stress in his upcoming report on France the urgent need to put in place effective measures to address ethnic profiling.

RECOMMENDATIONS

The Justice Initiative and Human Rights Watch encourage the Commissioner for Human Rights to make the following recommendations to France to address ethnic profiling in policing:

• Modify article 78-2 of the Code of Criminal Procedure to require reasonable suspicion as a basis for all identity checks and to explicitly prohibit  all forms of discrimination in identity checks by all police officers;
• Specify in the Code of Criminal Procedure the permissible circumstances for frisks, limiting these to cases where reasonable grounds exist to suspect that an individual is in possession of objects that could present a danger to the security of the officer;
• Introduce stop forms or another method (such as smartphones) for each identity check carried out, providing the context, the legal basis, and reasons for the check, and results, and make resulting statistical data available to the public;
• Develop local level consultation mechanisms involving police, elected officials, and local communities and associations that regularly assess identity checks and develop policy responses grounded in consensus.

Evidence dictates that these reforms are essential to evaluate the use of identity check powers and use this process to rebuild trust in the police and, consequently, police-community relations. These measures will better protect fundamental rights, such as the right to privacy, freedom of movement, and non-discrimination, and they will improve the police’s ability to maintain law and order.

During his 2012 electoral campaign, President François Hollande recognized that discriminatory identity checks by police are a widespread problem in France and pledged to address them. His policy measures since then have been few and inadequate to address the problem. Police identity checks, frisks, and searches affect over 5.3 million adults each year in France according to results of a recent survey.

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Reforms are urgently needed to address their serious negative impacts on individuals, communities, and French society as a whole.

I. ETHNIC PROFILING PRACTICES IN FRANCE

For more than 20 years, multiple reports by civil society organizations, academics, and independent oversight bodies have documented a widespread problem of discriminatory identity checks, frisks, and searches by French police. These practices especially target young men of North or Sub-Saharan African origin, as well as Roma and Travellers. Recent reports highlighting the scope and seriousness of this problem include the following:

• A May 2014 survey published by Human Rights Watch, the Open Society Justice Initiative, and Graines de France,
  

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  found stop rates that are among the highest in the European Union.

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  Ten percent of respondents reported being stopped by police at least once in the previous 12 months, with an average of 2.65 stops per year. This average rose to 4.76 for people of migrant origin, and to 8.18 for those of North African descent. Those who believed they were stopped on discriminatory grounds reported an average of 10.64 stops per year. Overall, 37.3 percent of the total number of stops reported involved people of North African descent, although they make up only 7 percent of the population. The survey also confirmed the significant negative impact of ethnic profiling on trust in police. Consistent with other studies, 78 percent of respondents said they trust the police and gendarmerie. But the percentage dropped to 43 percent among those who had experienced an identity check they perceived as discriminatory in the previous year;
• A 2012 report by Human Rights Watch, The Root of Humiliation: Abusive Identity Checks in France, revealed that minority youth, including children as young as 13, are subjected to frequent stops involving lengthy questioning, invasive body pat-downs, and the search of personal belongings. Human Rights Watch also found that insulting language, including racial slurs, are not uncommon, and some stops involve excessive use of force by the police;
• A 2010 survey by the EU’s Fundamental Rights Agency (FRA)
  

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  examining rates of stop and search of minorities across Europe found some of the highest percentages of street and vehicle stops targeting North Africans and Sub-Saharan Africans in France;
• A 2009 scientific study by the National Centre for Scientific Research and the Open Society Justice Initiative generated the first quantitative proof that police unfairly single out France’s ethnic minorities. The study documented over 500 police stops over a one-year period across five locations in Paris. The data shows that blacks were between 3.3 and 11.5 times more likely than whites to be stopped while Arabs were stopped between 1.8 and 14.8 more often than whites. The study also found a strong relationship between people's ethnicity, particular styles of clothing worn by young people, and the likelihood that they would be stopped.

II. NEGATIVE IMPACTS ON RIGHTS AND SOCIETY

Widespread ethnic profiling practices violate European and international human rights standards on non-discrimination, the freedom of movement, the right to be free from arbitrary detention and the right to respect for private life.

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Stop and search practices are humiliating for people who are checked in public view; they instill fear and insecurity in the people who are most often targeted, and their family members, who fear that a police check can quickly escalate into a more serious situation.

Discriminatory identity checks send a message to entire sectors of the population that no matter what they do, they will always be second-class citizens simply because they “don’t look French.” When members of the public repeatedly see visible minorities stopped and searched by police, they generally assume that the police must have a reason, and that all these individuals must be criminal or dangerous. This feeds discriminatory stereotypes and stigmatizes entire groups of people, contributing to broader social racism and xenophobia.

Considerable research in Europe and the United States demonstrates that stop and search practices perceived as unjust lead to mistrust in police, and this has negative impacts on the ability of the police to carry out their missions.

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At one extreme, anger at the conduct of identity checks has fueled major riots in France in recent decades. Less dramatic but far more widespread, French patrol officers are finding their daily work increasingly difficult as they face reduced cooperation from affected communities, and sometimes outright hostility, particularly from young people. As a result, basic police services suffer and public safety is jeopardized. These problems are directly related to the loss of trust and police legitimacy generated by biased and unfair practices.

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III. WIDE-RANGING REFORMS NEEDED

The French government has not lived up to its pledges to address abusive identity checks. During his campaign, now-president François Hollande committed to address discriminatory identity checks with a procedure that respects citizens, and, only weeks after taking office, his government announced that they were drafting a law that would introduce stop forms and provide individuals with a record of identity checks. The government rapidly back-pedaled in the face of police resistance, with the Ministry of Interior and Prime Minister publically opposing stop forms. The government restated its commitment to address profiling this problem in June 2013 during the United Nations Universal Periodic Review of France (UPR).

To date, however, the French Government has only taken very minor steps towards reform, introducing an amended code of police ethics and re-introducing badge numbers on police uniforms. These measures fall far short of what is needed to reduce documented ethnic profiling practices in France today. Two key problems need to be addressed: a legal framework with wide police discretion that enables discriminatory practices; and the absence of any record of most encounters with police.

• Reform of legal framework regulating identity checks required

French law does not explicitly prohibit discrimination in the administration of justice nor in law enforcement activities. In addition, the rules governing the use of identity checks lack adequate safeguards against misuse. Article 78-2 of the Code of Criminal Procedure, which regulates identity checks, grants wide discretionary powers to law enforcement officials to verify the identity of any person, with no requirement that these checks be based on reasonable suspicion of involvement in crime or illegal activities, thus leaving ample room for arbitrariness and abuse. Article 78-2 (2) permits identity checks authorized by a Prosecutor’s order in specific areas, during specified time periods, and for specified offences. Once these authorizations have been granted, police may check any person’s identity without providing any justification. 78-2 (3) authorizes identity checks “whatever the person’s behavior, to prevent a breach of public order and in particular an offence against the safety of persons or property.” Article 78-2 (4) authorizes checks of any person within designated areas. In addition, the lack of any obligation on law enforcement officials to record the legal basis and reasons for the stop (when stops are not followed by legal proceedings) results in a situation where, in the overwhelming majority of stops, it is impossible to monitor officers’ compliance with the conditions of article 78-2.

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Moreover, there is no written legal text that establishes criteria justifying physical pat-downs and searches during identity checks. A new police code of ethics, which entered into force in January 2014, clarifies that pat-downs should only be conducted when “necessary to guarantee the safety of the officer or others,” but does not establish explicit guidelines.

• Data must be collected and individuals provided with a record of the encounter

No official data is collected about identity check, frisk, and search practices, making it impossible for authorities to know how, in practice, police use their wide-ranging powers to stop individuals, check their identity documents, frisk, and search them. The Ministry of Interior confirmed this fact recently in response to Deputies and Senators requesting information on their recording and monitoring practices. (See appendix for list of questions to the Ministry of Interior). Without this data, it is impossible to evaluate how police use checks, and in practice makes it extremely difficult for line supervisors to review their officers’ practices in order to better target officers’ attention or identify and remedy any arbitrary or discriminatory practices.

People who are stopped, frisked, or searched are not provided with an explanation of the legal basis or reasons for the stop, or a record of the encounter with the police.

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This makes it exceedingly difficult to prove that a stop took place and assess whether it constituted discrimination. It also hinders objective public discussions about the use of these powers. Stop forms would be a key component of a strategy to reduce and eventually eliminate ethnic profiling. As demonstrated in the United Kingdom, stop forms are a form of transparency that enables evaluation of the use of police powers and informed policy debate.