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The slippage of "facial identity checks"

The slippage of "Identity checks at the Facies"

The identity check of Theo, 22, turned into a nightmare. Reading his testimony resurfaces the specter of "facial checks".

Controls that had (finally!) Just been censored by the Court of Cassation and the Constitutional Council.

In view of what victims of discrimination undergo, it seemed imperative to come back in detail to the new legal framework for identity control, so that everyone knows and asserts their rights.

Official statistics?

Compared to a "white" person:

  • A young visible minority man wearing clothes popular with younger generations from disadvantaged neighborhoods will have 10 times more chance of being controlled.
  • (Study Center for Sociological Research on Law and Penal Institutions - 2009)
  • A person of North African origin 14 times more chance to be controlled
  • A person at black skin at 11 times more chance to be controlled.
  • A young person from the suburbs wearing clothes in "suburban fashion" will have up to 16 times more chance of being checked (baggy jeans, tracksuits, etc.)

(National Institute of Demographic Studies - 2012)

The criteria are sex, age and skin color: A discriminatory selection par excellence.

What the law says ?

Article 78-1 of the Code of Criminal Procedure provides that “  Anyone on national territory must agree to undergo an identity check ... ". This means that one cannot evade an identity check. If one refuses it is a detention of 4 hours which, if it is prolonged, turns into police custody for verification.

The law regulates 9 different kinds of identity checks according to the aims and the offense sought (foreigners' rights, roadside checks, illegal work, etc.) which are detailed on the site.

Those which regularly pose problems of discrimination are the controls carried out on the basis of Articles 78-2 of the Code of Criminal Procedure: Identity check carried out at the initiative of a Judicial Police Officer (OPJ), or a Judicial Police Assistant (APJ) placed under his orders and article 78-2-2 of the code of criminal procedure: Identity check at the initiative of the public prosecutor.

What these two identity checks have in common is that they are done:

  • Without any condition relating to the behavior of the controlled person (everyone is targeted)
  • Without any obligation for the OPJ and APJ to justify the objective reasons for which they choose to control such or such person.

Current texts yet modified by Law n ° 2016-274 of March 7, 2016, to meet the criteria set by the ECHR, therefore offer no sufficient guarantees against discriminatory controls.

The problem ?

The police do not have to explain themselves. They can act on their own initiative or brandish the requisition of the public prosecutor, a key that allows them to control any person circulating in the area and at predefined times.

The victims of discrimination having no evidence to produce before the judge, if it is not their inner conviction, renounced to assert their right.

Up to these 13 plaintiffs who have undergone strong identity checks (formalities, searches, searches, etc.) and discriminatory, decide to lead the legal fight against the State.

Court of Appeal

The Paris Court of Appeal rendered 13 judgments on June 24, 2015 (n ° 346/2015). It retained the responsibility of the State in five cases for which there are " serious, precise and concordant presumptions "Demonstrating that the controls were based on" physical appearance and belonging, real or assumed, to an ethnic group or race ».

It also notes the problem of proof encountered by victims of discrimination. Indeed, in the absence of receipt or registration of the checks carried out, they cannot demonstrate the offense of facies, which constitutes a violation of the right to an effective remedy protected by Article 13 of the ECHR.

An appeal is lodged against the 13 judgments. The state plays a very big role in this case, the risk of being able to challenge the hitherto discretionary choice of identity control and the possibility of retaining responsibility ... A decision is enough to change case law. It's like opening Pandora's Box, especially since chain lawsuits are already on the horizon.

The Court of Cassation

And this is what happened on November 9, 2016. A judgment is quashed for procedural reasons, the other decisions have been confirmed but, and it is rare enough to be underlined, the court of cassation considered that it There was in a file the proof of a discrimination involving the responsibility of the State for gross negligence!

"... that, based on a testimony, (…) the operations of control targeted, during one hour and a half, in a systematic and exclusive way, a type of population because of its color of skin or its origin; (…) That Mr X brought in elements such as to reflect a difference in treatment suggesting the existence of discrimination;

Whereas, then, (…) that the State judicial agent did not demonstrate how this identity check was justified by objective circumstances, unrelated to any discrimination; (…) That the responsibility of the State was engaged on the basis of article L. 141-1 of the code of judicial organization… "(Cass. Civ., 1st of November 9, 2016, n ° 15-25.873)

This judgment gives the new rule of the game in terms of discriminatory control and this, in 3 steps:

  • It establishes the principle that a discriminatory identity check engages the responsibility of the State for heavy mistake.

It therefore applies to identity checks article L.141-1 of the code of judicial organization (COJ) according to which, "the State is required to repair the damage caused by the faulty functioning of the public service of justice ".

  • It defines discrimination ...

« There is discrimination if the identity check is carried out solely on the basis of physical characteristics associated with a real or supposed origin... "

  • ... And the evidentiary system allowing the judge to determine whether or not there has been discrimination
  • The person who has been the subject of an identity check must provide the judge with information which suggests the existence of discrimination.

Until now we stopped there. But the judges of cassation now impose that:

  • The administration in turn demonstrates either the absence of discrimination or a difference in treatment justified by objective factors.

Not only do the judges recognize the existence of facies checks, but they also facilitate the action of future complainants by requiring the police to prove that the identity checks are based on objective reasons and not on the appearance… Clearly they will always have to answer the question: Why control this one rather than another?

Identity check based on physical characteristics associated with a real or perceived origin, without any prior objective justification, is discriminatory. It is then a heavy mistake which engages the responsibility of the State.

And it goes further ...

While ruling on this case, the Court of Cassation seized the Constitutional Council on October 24, 2016 on two priority questions of constitutionality (QPC) relating to the compliance of Articles 78-2 and 78-2-2 of the Code of Procedure criminal, with the constitution.

(The second question concerned the controls applicable to foreigners who were deemed to comply)

The QPC of the Constitutional Council

The Council of Elders issued its opinion n ° 2016-606 / 607 QPC of January 24, 2017 Mr. Ahmed M. and others. (Yes… January 17, 2017, well after the judges had ruled on the appeals!)

The wise men, still cautious on this question, gave a very implicit but… incisive opinion. It is very subtle, because its reservations are aimed directly at the public prosecutor.

« On the one hand, the public prosecutor cannot retain places and periods unrelated to the search for the offenses referred to in his requisitions. On the other hand, the public prosecutor cannot, in particular by accumulating requisitions relating to different places or periods, authorize the practice of generalized identity checks in time or in space. »

By pointing the finger at the action of the prosecution, the opinion of the Constitutional Council is reminiscent of the position of the European Court of Human Rights.


The European Court is very severe on identity checks for violation of the principle of the free movement of persons (CJEU of 22 June 2010, A. Melki and S. Abdeli judgments).

But the contentious point concerns the role and functions of prosecutors in domestic law. The latter represent, according to Articles 12 and 13 of the Code of Criminal Procedure, the judicial authority in charge of monitoring and directing the identity checks carried out by the police. The problem ? The ECHR has always denied the quality of judicial authority to the public prosecutor.

The European court has by two judgments strongly condemned France on the grounds that " Prosecutors, who are neither independent of the executive power nor of the parties to the trial, since they initiate prosecutions and direct investigations, are not judicial authorities ... ».

(ECHR of March 29, 2010, Medvedyev v / France and ECHR of November 23, 2011 Moulin v / France, relating to police custody ordered by the prosecution deemed illegal)

And it's true… The prosecution is a hierarchy with political power at the top: the Keeper of the Seals, Minister of Justice.

A legislative reform to regulate identity checks is essential, everyone is asking for it, but this would necessarily involve calling into question the prosecution ... So, to avoid it, the legislator is laying patches on article 78- 2 of the Code of Criminal Procedure, as it did in 2016.

An important milestone had just been crossed, because by lifting the 2 barriers which prevented victims of discrimination from acting effectively in court, the Court of Cassation laid the groundwork which will make it possible to fight more effectively against facies checks.

But, in light of what young Théo suffered, there is still a long way to go ...

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