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France: Magistrate found guilty for alleging indiscriminate stop-and-search based on racial profiling

01 January 2007

On 18 January 2007, a court in Paris found against three people involved in the publishing of a book in the third quarter of 2001 concerning police identity checks on foreigners entitled Your papers! What do you do when facing the police?, and detailing the rights of people subjected to police controls. The book's author Clément Schouer, the publisher Michel Sitbon of Editions L'Ésprit Frappeur and graphic designer Jean François Duval, were found guilty on charges of "being an accomplice to public defamation" (800 euro fine), of "public defamation and offence" (1,000 euro fine), and of "being an accomplice to public offence" (500 euros), respectively, "against a public administration" (the national police). While Sitbon was deemed ultimately responsible for the book's content and presentation as its publisher, the charges against Schouer (a magistrate) and Duval concerned specific claims and illustrations that appeared in the work. In the case of Schouer, it was a passage stating that

identity checks based on [physical] traits, although they are forbidden by law, are not just commonplace, but they are also multiplying

The court dismissed the defence's argument that the claim was justified by serious investigations carried out on the issue of identity checks, on the basis of the failure to provide evidence to support the claim, the fact that the claim targets the national police as a whole, rather than presenting irregularities as isolated incidents involving specific officers, and the context in which it was made, after a passage that included the following:

They (the foreigner, youth, poor person) know the reality of the police presence that "zero tolerance" entails. The first contact with the police is not, generally, reassuring: it takes place in the street and takes on the rough and sometimes arbitrary form of the identity check

The author's being a magistrate, "deemed to be perfectly aware of both the realities of the competencies of the police services - most notably the wide powers that they enjoy in the function as foreigners' police for the control of residence permits - and of the missions that the forces of order are entrusted with in the field of the fight against illegal immigration", the work's presentation as a legal guide rather than a discussion, thus involving a requirement of objectivity, and the fact that its cover bears the name of the Syndicat de la Magistrature (SM), the magistrate's association that commissioned it, means that it should involve the "guarantee of exactitude" that statements by magistrates ostensibly carry, while the claim presented as fact (widespread, and increasing, checks based on physical traits) is not proven and expressed in an "imprudent, peremptory and polemical" way, led the court to deny the accused any mitigation due to "good faith".

The presentation of reports (by the Commission Nationale de Deontologie de la Sécurité, CNDS, and the European Commission against Racism and Intolerance, ECRI) documenting complaints of discriminatory police abuses, and the author's argument that the passage in question was a "commonly held opinion" were not sufficient to counteract the lack of evidence to sustain the claim. However, the prohibition that is in force on the collection of ethnic data in relation to police stop-and-search operations makes it an allegation that, regardless of how extensive it may be, or perceived to be in society, is practically impossible to prove.

Reports issued by both the Council of Europe human rights rapporteur Gil-Robles (see Statewatch news online, August 2006) and the Citoyens-Police-Socièté (C-P-S, see Statewatch vol. 14 no 6) research group, in which the Ligue des droits de l'homme, MRAP, SM and the French Laywer's Union (SAP) participated, highlight instances of ill-treatment against foreigners. The C-P-S report, which is admittedly based on a very limited sample, note