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FRANCE: Human rights organisations say reform of stop and search legislation does not go far enough

26 October 2012

26.10.2012 - On 16 October, the office of the French Defender of Rights (Défenseur des Droits), a governmental ombudsman organisation, published a report on identity checks. [1] A few weeks earlier the government had announced that receipts would not be provided for police stop and searches, contradicting the promise of President Hollande that he would fight 'nasty face' identity checks (délit de faciès, checks based on appearance). [2] Civil society organisations have welcomed this report but argue that the Rights Defender does not go far enough.

"Abusive identity checks" against minorities

In January 2012, Human Rights Watch published a report entitled 'The root of humiliation: abusive identity checks in France'. [3] The report drew on the accounts of 67 French citizens - many of them of African, North African, and Caribbean descent - and established that minority groups were more likely to be stopped by the police for identity checks, "suggesting that police engage in ethnic profiling."

The report identified a lack of accountability and prejudice against minorities as the main drivers of this discrimination:

"The French Code of Criminal Procedure gives law enforcement officers too much discretion to conduct identity checks, leaving ample room for arbitrariness and abuse. Accountability mechanisms, both within law enforcement agencies and through external oversight bodies, do not appear adequate."

Human Rights Watch concluded its report by calling for a reform of article 78(2) of the Code of Criminal Procedure which authorises police officers to stop and search individuals as soon as they have a "reasonable suspicion" that the person may have attempted or actually committed an unlawful act.

In the absence of any official statistics on ethnicity in France (which is forbidden by law) this study was the second undertaken by a civil society organisation where field evidence confirmed allegations that a significant amount of identity checks may be racially motivated and thus discriminatory.

In 2009, the Open Society Justice Initiative published a landmark report based on the observation of more than 500 identity checks in France. [4] The study confirmed that identity checks were essentially grounded on people's appearance and that Arab people were seven times and black people between three and eleven times more likely to be stopped by the police than white people. Open Society reached the same conclusions as Human Rights Watch and called for the revision of article 78(2) of the Code of Criminal Procedure.

A 2011 report by Amnesty International on deaths in custody in France corroborated these findings. [5] The organisation highlighted that "discriminatory conduct by law enforcement officials towards persons belonging to ethnic minorities has been alleged in many cases brought to Amnesty International". Amnesty expressed its hope that "the Defender of Rights will make a priority of addressing the issue of human rights abuses by law enforcement officials with the seriousness and expertise that it requires".

Fourteen individuals launched legal proceedings against the Ministry of Interior in 2011 for alleged "délit de faciès." These cases are ongoing. [6]

Report by the Defender of Rights

The report on identity checks by the Defender of Rights followed weeks of debate on the issue in France and the announcement by the Interior Minister that police should not have to issue forms to those undergoing identity checks. This move was perceived as a step back from the manifesto commitment of François Hollande to "fight against 'nasty face'" based identity checks through the establishment of a "procedure respectful of citizens."

A group of eight civil society organisations, including the Open Society Justice Initiative, Human Rights Watch, the Human Rights League, and magistrates' organisations, called the Minister's "scepticism on reforming identity checks … deplorable" and published a communiqué calling for police officers to be obliged to issue forms, and the reform of article 78(2) of the Code of Criminal Procedure. [Ibid at 2]

The Defender of Rights conducted a study in early 2012 to establish whether identity check forms should be put in place in France to help address allegations of racial profiling.

The report was based on a wide consultation of civil society and official stakeholders and looked at the experiences of stop and search reforms in four different countries: the UK, Spain, Bulgaria and Hungary. One city in each of these countries, except the UK, was part of an Open Society Justice Initiative STEPSS (Strategies for Effective Stop and Search) project.

The example of the Spanish city of Fuelenbrada was looked at closely by the Defender (the project was suspended in the two other cities) together with the UK example, where the changes brought by the 2010 Crime and Security Act and stop and search forms used in London and Leicester were looked at.

In both countries police officers have to fill in forms indicating the ethnic background (in the UK) or the nationality (in Spain) of the person stopped along with other personal information including the identity of the police officer, who is obliged to provide either their full name or identification number.

A key finding in the Defender's report was that obliging police officers to give forms to people subjected to stop and search significantly reduces the number of stops, while the efficiency of the operations increased. It also emerged that despite these reforms, minority groups still felt they were subjected to more identity checks than the rest of the population.

The Defender concluded that because the collection of ethnic statistics is prohibited in France, using forms that identify the ethnic origin of the person being stopped would be unlawful. Even without information on ethnic origin, the collection of data for statistical purposes would include personal data and thus would require the favourable opinion of the French data protection watchdog CNIL (Commission Nationale de l'Information et des Libertés).

However, the Defender emphasised that "in a democratic society, it should be possible to identify any public security officer on duty", pursuant to EU jurisprudence and the European Code on Police Ethics. While in favour of putting in place the obligation for police officers to identify themselves during stop and search operations, the Defender did not specify a preference for any of the four possible forms identified as being transposable in the French context. [7]

On 16 October, Human Rights Watch, the Human Rights League, etc. - all of whom had previously criticised the government for its refusal to implement changes - welcomed the Defender's report but regretted that no mention was made by the Defender on the need to reform article 78(2) of the Code of Criminal Procedure:

"Many paragraphs of this article should be withdrawn or amended to limit the scope of the controls to the fight against delinquency". [8]

Sources
[1] Défenseur des Droits, Rapport relatif aux relations police/citoyens et aux contrôles d'identité, 16 October 2012
[2] 'Manuel Valls's scepticism on reforming identity checks is deplorable: An in-depth reform is necessary, urgent and realistic', collective action (GISTI, Graines de France, Human Rights Watch, la Ligue des Droits de l'Homme, la Maison pour un Développement Solidaire, Open Society Justice Initiative, le Syndicat des Avocats de France et le Syndicat de la Magistrature), 20 September 2012
[3] Human Rights Watch, The Root of Humiliation: Abusive Identity Checks in France, 26 January 2012
[4] Open Society Justice Initiative, Police et minorité visible: les contrôles d'identité à Paris, 2009
[5] Amnesty International, Our lives are left hanging, 30 November 2011
[6] 'Délit de faciès : une plainte collective contre l'État', Le Figaro, 11 April 2012
[7] Défenseur des Droits, Annexe: Prototype du reçu du contrôles d'identité, in Rapport relatif aux relations police/citoyens et aux contrôles d'identité, 16 October 2012
[8] 'Le Défenseur des Droits aurait dû se prononcer plus explicitement pour une réforme globale des contrôles d'identité', collective action (GISTI, Graines de France, Human Rights Watch, la Ligue des Droits de l'Homme, la Maison pour un Développement Solidaire, Open Society Justice Initiative, le Syndicat des Avocats de France et le Syndicat de la Magistrature), 16 October 2012