Discriminatory identity checks – Determining public policy is not the role of the Conseil d'État

Décision de justice
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Six organisations brought a class action before the Conseil d'État in an attempt to put an end to the practice of discriminatory identity checks. The investigation revealed that this type of racial profiling exists and is not confined to isolated cases. Although it cannot be considered “systemic” or “universal”, this practice nevertheless constitutes discrimination for people who have been subject to identity checks based on their physical characteristics, associated with their real or perceived origin. The Conseil d'État noted, however, that the measures requested by the organisations are in fact aimed at a general redefinition of public policy decisions regarding the use of identity checks for the purposes of reducing delinquency and preventing disorderly conduct. Such a redefinition does not fall within the administrative judge's jurisdiction. The Conseil d'État, therefore, dismissed the action.

Six organisations and NGOs (non-governmental organisations) brought a class action case before the Conseil d'État, claiming that the discriminatory practice of targeting people with physical characteristics associated with a real or perceived origin when carrying out identity checks is "systemic" or "universal". They asked the Conseil d’État to instruct the State to take measures to put an end to this practice.

Sitting as the Assemblée du Contentieux (administrative claims assembly), comprising 17 judges, the Conseil d'État noted that the class action sought acknowledgement of the claim that, by failing to take certain regulatory and organisational measures, the State, which is responsible for the organisation of the judicial public service, has created conditions that have allowed this practice to spread.

Firstly, based on various reports and pieces of evidence, the Conseil d'État took the view that there is an established practice of racial profiling when carrying out identity checks. Although not “systemic” or “universal”, as the plaintiffs claimed, it is not confined to isolated, individual cases.  The Conseil d’État, therefore, concluded that this constituted a breach of the prohibition on discriminatory practices.

However, the plaintiff organisations called for measures involving a general redefinition of the identity check policy for the purposes of reducing delinquency and preventing disorderly conduct. These measures included: amending the French Criminal Procedure Code (article 78-2); creating a specific policy for minors; setting up an independent supervisory authority; introducing an identity check receipt; systematically creating a written identity check record, to be sent to the Procureur de la République (public prosecutor), after every check; redefining the relationship between the police and the general public; and improving training on discrimination, and assessing and monitoring officers. Yet it is not the role of the administrative judge to determine public policy in the place of public authorities, nor to instruct them to do so.

The class action was, therefore, dismissed.


Read the decision (in French)