The opponents of identity checks, abusive, who were waiting for this decision, espérent make case law.
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This is a decision of principle unprecedented, that the Court of cassation has rendered Wednesday, November 9, in the field of control of identity. This is the first time that the highest court was required to rule on this subject, on the basis of recourse against the State brought by thirteen people – african or north-african – who felt that they had been subject to controls ” facies “.
on Wednesday, the Court sentenced the State in three instances – in the case of identity checks have taken place in the commercial district of Defence, in December 2011. She considered that” control of identity based on physical characteristics associated with an origin, real or supposed, without any objective justification prior, is discriminatory : it is a heavy fault “.
At the stage prior to the call, march 24, 2015, the State was ordered to pay damages (€1,500) in five folders. He had then filed an appeal in cassation. And the applicants who had not been successful in eight other records had done the same. the ” That the Court of cassation has ruled on a total of thirteen folders we is equal, stated Wednesday Me Felix de Belloy, which was defended at first instance and on appeal the thirteen men at the origin of this legal battle started in April 2012. in The Court of cassation has set the rules. the It was confirmed that a control based on physical appearance is discriminatory, and that it is a heavy fault. “ Reacting to the decision, the human rights Defender has hailed ” a major advance for the guarantee of citizens ‘ rights “.
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The Court of cassation has also clarified the way in which discrimination must be proven. The person who applies to the court ” must bring to the judge elements that suggest the existence of discrimination “, such as, for example, the attestation of a witness present on the scene. the ” It is then up to the administration to demonstrate either the absence of discrimination, a difference of treatment justified by objective factors “. In controlling the facies, the burden of proof is thus furnished, in the image of what is done in labour law. the ” This is a major innovation, welcomed Me Felix de Belloy. in The fate of several decades of non-law. “
His colleague, Me Thomas Lyon-Caen, who defended the appellants before the Court of cassation, considering the next step : ” To mobilize on the traceability of controls “. Currently, the controls, ” are not the subject of any record “, was referred to the Court of cassation, unless they have led to the initiation of a judicial or administrative procedure. Their framework boils down to three main situations. They can be made in cases of flagrante delicto, of the risk of disturbance of public order or on requisition of the prosecutor of the Republic. the ” It is very wide, estimated Me Slim Ben Achour, also a lawyer of the applicants. The practice that has developed, it is the story of a patrol of police officers who control when she wants to. And there was no trace of this activity. “
contrary to the wide latitude and the risk of arbitrariness that flows from it, the lawyer considers that the decision of the Court of cassation will push the police to reform their practices in order to be able to demonstrate, in the event of prosecution, that the controls are based on objective criteria and individualized. Lanna Hollo, legal officer Open Society Justice Initiative, a foundation of billionaire George Soros, which supports the thirteen applicants, wants to believe that the judgment in ” compelled the French authorities to respect the campaign promise made in 2012 by the president Hollande in “fight against the crime of facies“ “.
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A topic absent from the electoral programmes
François Hollande had promised to establish a receipt at the time of each identity check, before turning back once elected. Faced with the strong opposition of the police unions ahead of what they considered to be a measure stigmatizing, Mr. Valls, then minister of the interior, abandoned the idea of a receipt, preferring that of the compulsory wearing of the badge. the ” It has changed nothing “, pounds Bocar N., one of the thirteen applicants, a member of the Collective against the control on the facies, and whose case has not resulted in a conviction of the State. the ” The practices continue and it is necessary that the whole society is seized of this matter. This is to improve relations between the police and the population. “
on Tuesday, the national consultative Commission on human rights (CNCDH) has just rendered an opinion in which it points out that” a set convergent of studies have highlighted the over-representation of young men from visible minorities in the police checks “. The practice would become a real ” an abscess of fixation of the tensions in police-to-population “, in addition to not be useful at the discovery of a marginal share of offences.
The CNCDH submits to the order of the day the idea of ” count “ the controls id and ” put in place without waiting for a traceability system, allowing the controlled person to have a document attesting to this control “. In spite of these recommendations, and also historic the decision of the Court of cassation, it comes at a time when the subject is not brought within the government. The candidates in the primary of the right and center have not addressed more in their program.
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