Identity control consists of questioning a person so that they can justify their identity "by all means". They are carried out by Judicial Police Officers (OPJ) or Judicial Police Agents (APJ) placed under the responsibility of the OPJ.
Identity checks are subject to the control of the public prosecution which, according to article 12 of the code of criminal procedure, directs the police services and article 41 of the code of criminal procedure, which allows them to " carry out all the acts necessary for the investigation and prosecution of infringements … ”
All the actions of the police services are directed by the public prosecutor, and placed under the supervision of the general prosecutor and the control of the chamber of instruction.
There are actually several different identity checks depending on the offense sought and the goals pursued.
Identity check at the initiative of the OPJ (article 78-2-1 of the code of criminal procedure)
The OPJ or the APJ (acting under the control and responsibility of the OPJ) can check the identity of any person:
- Against whom there are suspicions that he has committed or attempted to commit an offense
- Who is about to commit a crime
- Who can provide information about an investigation (in flagrante delicto)
- Who is being researched
The OPJ acts on its own initiative, but there must be a clue goal in the behavior of the person giving rise to suspicion of the commission or attempted commission of an offense.
The assumptions used by case law to justify these identity checks are:
A suspicious attitude, throw a bag or a jacket, flee into a building (Cass. Crim., April 14, 2015, n ° 14-83.462), change direction in the sight of the police (Cass. Crim., Du January 03, 1991, n ° 90-83.625), take an interest too closely and at night in parked vehicles (Cass. Crim., Of January 13, 1986, n ° 84-90.041).
The control required by the public prosecutor (article 78-2-2 of the code of criminal procedure)
These are systematic identity checks of any person within the perimeter designated by the public prosecutor.
Article 78-2-2 of the Code of Criminal Procedure, reformed by Law No. 2016-731 of June 03, 2016, now extends these checks to vehicle visits and baggage searches.
The public prosecutor must make written requisitions setting out the offenses prosecuted, the perimeter and the period during which these checks will take place (a 1993 circular recommends limiting them to half a day).
These areas are those where an offense has just taken place (theft, burglary, searches for perpetrators, etc.), or known to be places where offenses are regularly committed (traffic offenses, pick-pocketing in stations metro, drug trafficking in public places…).
There will be a deployment of law enforcement in a specific area and for a specific time to carry out identity checks.
Only the OPJ is empowered to carry out identity checks on requisitions from the prosecution. The APJ can only assist him! (Cass. Civ., 1st of March 16, 2016, n ° 14-25.068).
The control will be valid in the event of discovery of an offense, even if they are not specified in the requisitions (flagrante delicto).
Regardless of the behavior or suspicions weighing on a person.
But in the event of a dispute, it is up to the OPJs in charge of the control to provide proof of the objectivity and the progress of the control operations (Cass. Civ., 1st of November 9, 2016, n ° 15-25.873). Otherwise the control will be judged discriminatory and the responsibility of the State will be engaged for gross negligence.
What should be clarified: The Cour de Cassation ruled in a judgment of 9 November 2016 the existence of a discriminatory identity check.
Acknowledging the illegality of a facies check does not mean that we can no longer check persons belonging to visible minorities, but that it will take the existence of real and serious reasons to check them.
Thus, on this same November 9, 2016, the Court of Cassation rendered 9 judgments which rejected the existence of discrimination, in particular on the grounds that " the difference in treatment was justified by objective elements, in that the person controlled responded to the report of one of the suspects »
The checks followed the launch of a search notice for a Maghrebian-type suspect. This research notice having justified the controls of a group of North Africans, they could not be considered discriminatory (Cass. Crim., Of November 9, 2016, n ° 15-25.210; 15-24.212).
Administrative or preventive identity control (article 78-2-3 of the code of criminal procedure)
The purpose of these controls is to prevent any attack on public order, persons or property.
Regardless of the behavior of the person being checked, it is not necessary for an attitude to arouse suspicion, this is the difference with the checks carried out by the JPO referred to in article 78-2-1, seen above.
It can be the search of vehicles traveling or stopped on the public highway or in places accessible to the public, when there is one or more of the driver or passenger. plausible reasons to suspect that he has committed, as an author or as an accomplice, a flagrant crime or offense or an attempt at such offenses.
Only the OPJs are authorized to carry out these checks, the APJs can only assist them (Cass., Crim., Of September 28, 2010, n ° 10-82.699).
But these checks must not be systematic or arbitrary. The OPJs must justify the particular circumstances that justified this control and what the breach of public order consisted of. (Cass. Civ., 1st of February 3, 2010, n ° 08-21.419).
The search of the bag: Articles 76 of the code of criminal procedure and R.434-16 of the code of internal security, do not allow the police to search the bag without the consent of the person si… The pat-down did not yield anything and that there is no indication allowing to presume the existence of an infringement (Cass. Crim., Of March 23, 2016, n ° 14-77.370).
Identity statement (article 78-6 of the code of criminal procedure)
This is not an identity check! It is a question of noting the identity appearing on the papers of the people that the deputy APJs or the municipal police officers verbalize during the observation and / or the verbalization of a fine (highway code, parking…).
The law of November 15, 2001 on "daily security", extended this possibility to the volunteers of the gendarmerie, to the security assistants and to the agents of surveillance of Paris, (known as the APJ 21 of the name of the article framing their actions) .
This check is limited to the sole production of an identity document. Neither the APJs, nor the municipal police officers can retain a person for in-depth checks, nor verify whether the documents produced correspond to reality.
If the offender has no paper with him attesting to his identity, or refuses to produce them, article 78-6 paragraph 2 of the Code of Criminal Procedure provides for the intervention of an OPJ.
The offender can be detained for the time strictly necessary for the APJ to reach an OPJ to ask him what to do (bring the person to the station for verification or let him go).
If he cannot reach her, he must let the person leave without delay. Just as if he manages to reach him and the OPJ does not follow up, the APJ will have to let the offender leave without delay.
Otherwise, the identity verification procedure will have to be applied.
Identity verification (article 78-3 of the code of criminal procedure)
If the person arrested cannot prove his identity, regardless of the control initiated.
The OPJ may ask the APJ to present the offender to him for an identity check at the post which must be limited to 4 hours: This is a retention.
The retention period runs retroactively from the statement of identity.
During the time necessary for the transfer of the offender to the JPO, the APJ can, in a very exceptional way, proceed to the palpation and the use of handcuffs. These measures must be proportionate and used if the behavior of the person requires it (article 803 of the code of penal procedure).
At the end of this period, if the measure is prolonged (suspicion of false documents, identity theft, etc.), the JPO will have to take a custody measure from which the period already elapsed will be deducted.
Whether this check takes place on site or at the post, it should not exceed 4 hours. This is the time needed to carry out all the investigations allowing the person to be identified.
You need the authorization of the public prosecutor to take fingerprints, take photographs, hear witnesses ... If this authorization is granted and the person refuses to submit to it, it is an offense punishable by 3 years in prison and a fine of 3750 euros.
At the end of the verification, a report must be given to the public prosecutor and a copy to the inspected person. It includes the motivations behind the control, the operations carried out (fingerprints, etc.).
Identity control of foreigners (article L.611-1 of the code on the entry and stay of foreigners and the right of asylum)
All foreigners must present the documents authorizing them to travel and stay in France.
This control can be carried out by an OPJ, or, under his control, an APJ or a municipal police officer.
Controls must be carried out objectively and without discrimination (reservations of the Constitutional Council of August 13, 1993).
In the stops Bogdan and Vuckovic, the court of cassation specified that the elements justifying the control must be external to the person (Cass. Crim., of April 25, 1985, n ° 84-92.916).
The color of the skin, or the fact of speaking in a foreign language cannot therefore justify an identity check of foreigners (Cass. Crim., November 10, 1992, n ° 92-83.352, Bassilika)
But, the fact of being in a vehicle registered in a foreign country will be an objective element external to the person who will be able to justify a control (Cass. Crim., April 25, 1985, n ° 85-91.324).
Road checks (Articles R.130-1 and R.233-1 of the Highway Code)
Anyone traveling in a vehicle on public roads must prove their identity, the vehicle's papers and… comply with opening the hood to check the serial number.
The purpose of the control is to find and establish the infringement. Refusing to submit to the control is an offense punishable by 3 years and a fine of 3 euros.
Note: Searching the passenger compartment or the boot is considered a search! It cannot be carried out within the framework of a simple road control (Cass. Crim., Of June 23, 1964, n ° 62-93.147).
Only an OPJ is authorized to search a vehicle (Cass. Crim., September 28, 2010, n ° 10-82.699).
Identity control at borders (article 78-2 paragraph 8 of the Code of Criminal Procedure)
These are checks allowing the prevention and investigation of offenses linked to cross-border crime for a period limited to 6 hours.
This control is exercised on all persons located within a perimeter of 20 km from the border area of a state party to the Schengen Convention; as well as in all ports, airports, train or bus stations, accessible to the public and open to international traffic.
In two stops Melki and Abdeli of 22 June 2010, the European Court limited these checks to:
- Prevention and investigation of offenses linked to cross-border crime
- A maximum duration of 6 consecutive hours in the same place
In all cases, there is a ban on carrying out systematic checks on people moving in cross-border areas.
Identity control to fight against illegal work (article 78-2-1 of the code of criminal procedure)
The purpose of this preventive control, carried out at the request of the public prosecutor, is to verify that people working in a company, a work site, etc. have been declared by their employer (declarations prior to hiring, personnel register, etc.). Agents from the URSSAFF, from the public treasury, etc. may participate in the control.
These checks target specific infringements of articles of the labor code. They cannot take place in premises serving as accommodation: It is a search.
This specific control can only be carried out on written requisitions from the public prosecutor.
It can only be carried out in a strictly delimited area and over a maximum period of one month.
These requisitions must be regularly presented to the persons in whom this control takes place.