RACISM AND POLICE - A REPORT BY THE INTERNATIONAL FEDERATION OF HUMAN RIGHTS
The International Federation of Human Rights, FIDH, has published a report on racism and police in France. The authors are Jean Claude Bernheim, professor of criminology at the Universities of Ottawa and Montreal, secretary in charge of detention matters at the FIDH and president of the Canadian Office for Detainees Rights, and Giovana Borgese, member of the board of the Italian League of Human Rights.
The report insists on the close relation of certain police powers (identity checks and police custody) conflicting with the Human Rights guarantee prohibiting any form of arbitrary detention on the one hand, and police acts of racism and discrimination on the other.
Although the report focuses on the situation in France, its findings concern a problem which exists in every European country and they are particularly important in view of the Europe wide and ever growing call for more police control powers in the context of the planned abolition of internal border controls in the EC.
The report begins with a critical comparison of French legislation on identity checks (Contrôle d'identité), the 'garde à vue' (an ill-famed form of police custody particular to France), and the access to legal defence (Droit à l'avocat) at the stage of preliminary police investigation. The authors draw the severe conclusion that the "fatherland of Human Rights" does not live up to the principles first stipulated in the 1789 declaration of human and citizen's rights (Déclaration des droits de l'homme et du citoyen) and that a number of provisions and practices conflict with the European Convention on Human Rights guarantees regarding the freedom of persons and fair trial.
Identity checks
The authors criticize the right of the French police to check identities in absence of any materialized suspicion against the concerned. Indeed, identity controls are permitted in order to "prevent an encroachment on public order, particularly an encroachment on the security of persons and goods". In other words, they are allowed, wherever and whenever the police believe that a potential risk exists.
The authors understand identity checks as the first stage of privation of liberty, Indeed, totally innocent and a priori non-suspected persons can be held by police for up to six hours for the sole motive of checking their identity.
Quite obviously, such police powers open the door to arbitrary, discriminatory and racist practices, often based merely on the physical appearance of persons. As the report shows, certain groups of young people, non-whites and marginals are far more likely to be submitted to an ID-check.
From all this the authors draw the conclusion that "identity checks as presently authorized open the door to encroachments of all kind, particularly to the one of "the offence of physical appearance" (délit de facies). Hence it follows that the French State must amend its legislation and the penal procedure code in order to purely and simply prohibit identity controls". As for controls of foreigners, they "must be based on the principle of presumed innocence and intervene only when a crime or an offence has been or is on the point of being committed".
The 'garde à vue'
According to the official reading, the French form of police custody, the 'garde à vue', is neither an arrest nor a state of detention. The 'garde à vue' is instead defined as the placing of a person considered as a suspect or as a witness "at disposal" in the localities of the criminal investigation police (police judiciare). It is an exclusive power of the police judiciaire which was legalized as late as 1958.
At present 'the garde à vue' can be decided on by an officer of the police judiciaire in order to question a person in case of 'in flagranti' procedures or of preliminary investigation.
This detention can last for 24 hours and can be prolonged for a further 24 hours on written authorization of the public prosecutor (procureur de la République), to whom the person under custody must be presented.
In drug related cases the prosecutor can allow prolongations extending the 'garde à vue' to up to 4 days.
According to the criminal procedure code (art.77) any person can be submitted to such a measure of custody whenever "necessities of the investigation" exist. As there are no restrictions to this provision, any witness, friend or family member of a possible suspect can be detained in this manner.
As a result, the police can in practice keep a person in custody for 24 hours without justifying this by any specified charges against him.
The practice very common among public prosecutors to sign prolongation authorizations without having seen the person concerned, further paves the way for all kinds of serious and frequent power abuse.
Astonishingly enough, the criminal procedure code does not permit the detainee to refer to the irregularity of a 'garde à vue' neither in front of the criminal court nor in the course of the investigation in front of the investigative judge (juge d'instruction). A complaint can be brought only to the chamber of accusation. Thus, the authors conclude, "every thing is set up in a way as to jeopardize the efforts a victim could make in order to restore his most elementary fundamental rights".
In the view of the authors the institution of 'garde à vue' is simply in breach of the European Convention on Human Rights' (ECHR) article 5, and more specifically paras 2 and 4.
The French State cannot reject this reproach by invoking its own interpretation of the 'garde à vue' as being neither an arrest nor a detention. Indeed, the European Commission of Human rights has repeatedly stated that Article 5.1 applies to any privation of liberty of short duration.
The authors note with astonishment that thus far no case involving the 'garde à vue' as opposed to the application of the ECHR has been brought to court in France.
In the opinion of the authors there is a deliberate policy in France aiming at restricting as far as possible the application of the Convention.
The right to legal defence
As opposed to e.g. the USA and Canada, where lawyers can meet their client as soon as he is arrested, this right of immediate access to a lawyer is not part of the established principles of French law. As long as the police investigation and, in particular, the 'garde à vue' lasts and as long as an investigative judge has not been charged with a case, no person detained by the police has the right to contact a lawyer. However, as the authors put it, "nothing can justify keeping persons presumed innocent incommunicado for up to four days".
This negation of the right to legal defence ammounts to a blatant violation of article 5.4 of the ECHR.
Hence follows, say the authors, that the right of access to a lawyer is inherent to the fact of being deprived of ones liberty in the course of a police intervention.
The particular situation of foreigners
French legislation subjects all foreigners to the general obligation to undergo identity checks anywhere on French territory.
This leads to an uncomfortable situation for the police: "In the scope of their task, policemen are, it is true, on the one hand confronted directly with the demands of their superior administrations and indirectly of the political authorities, on the other hand with legislation and obligations forbidding them to act on a discriminatory basis. How, indeed, can one spot a foreigner in a cosmopolite country or city? Honest policemen, aware of their task can only be confronted with a dilemna. For others, imbued by their power and maybe racist, this is the perfect opportunity to bring to bear their ideology."
The authors point out that it is well known how things use to go. "At random one stops persons whose physical appearance does not conform with the 'national' profile. At a defined and demarcated place [for instance a subway station] all persons with 'strange' physique are checked with the hope that some individuals in irregular situation will be among them."
Police racism manifests itself first in the motives behind an identity check. Then follows a certain provocation by humiliating and eventually racist comments which frequently cause an agressive verbal reaction entailing more or less intense physical violence.
The report cites a number of specific cases confirming the above ascertainments. Frequently the intercepted persons end up in 'garde à vue' totally isolated in some local police station where they are even more exposed to the threat of verbal and sometimes extremely brutal physical abuse.
In the opinion of the authors racist behaviour within the police must be combatted with particular severity, "because, in that [the police] detains more power than the citizen, its acts have more serious consequences". And the report repeatedly points at the fact that the notoriously strong team spirit (esprit de corps) constitutes a strong handicap in combatting racism inside the police. Police as a whole can not, of course, be qualified as racist, but the policemen as a corps, even when they, for their part, condemn these attitudes, "protect those who are [racist]".
Politics and racism
The chapter begins with a quotation from P.-A. Taguieff ('Face au racisme', Paris, la Découverte, 1991): "Nowadays, the fears, the phobias and cynical electoral calculation supersede political projects, the respect of principles and - just as well and maybe most of all - they supersede analysis."
The authors insist on the importance of symbolical signals in politics, particularly as expressed through both public declarations and lack of comment by high ranking politicians. Sometimes deliberate, sometimes unreflected discriminatory remarks of politicians can trigger racist behaviours in society. Effects can be particularly devastating in hierarchical corps such as the police where a behaviour in conformity with the power structures of society is widely seen as identical with "good" behaviour.
Police and racism
The report demonstrates the strong influence of police arbitrariness on the course of criminal procedures. The police in fact decide quite freely and according to its own often arbitrary selection criteria, which cases are to be refered to criminal justice.
No wonder then, that in all stages of penal prosecution foreigners are overrepresented. While foreigners represent 7-8% of the population of France, they make out 16% of of all suspects and 15,5% of the accused. Prisoners on remand constitute 79% of the prison population in France. While this figure is 75% for nationals, it is over 90% for foreigners. While prison sentences are on probation for 60% of nationals, this is the case for only 40% of foreigners.
Conclusions and recommendations
Police racism has something to do with the powers conferred both on the institution and on the police officers themselves.
It is therefore often difficult to distinguish power abuse as such from racist abuse. Indeed, directives addressed to the police sometimes contribute to a discriminatory character of its missions. Racist police officers are also encouraged by organizational structures.
The authors are well aware that it is difficult to change the minds of racist policemen. They therefore limit themselves to the proposal of concrete legislative and organizational measures which should act as barriers against racist behaviour.
Based on the findings above they call for:
- the abolition of identity checks (which in their view amount to a form of privation of liberty without grounds);
- the abolition of the 'garde à vue'(as a form of detention of non-suspects);
- the guarantee of the right to see a lawyer at the earliest stage of privation of liberty (In order to materially secure this right, the authors propose the creation of on call lawyers accessible 24 hours a day).
The importance of strong sanctions is stressed. In serious cases of power abuse by a representative of the state, removal from office should be obligatory. Acts of racism should be automatically considered as serious power abuse. Investigations concerning police abuse should be led by a special institution of control and appeal independent from police and government.
Sanctions should not be limited to punishment of the perpetrator but comprise redress of the legal damage done to the victim.
In the event of encroachment on the rights of the accused redress measures should range from the rejection of all evidence produced in an irregular way to nullity of the entire criminal procedure. The burden of proof regarding the legality of the taking of evidence must be with the prosecution.
In the authors' opinion the combat against racism, as long as the state is concerned, begins with the recognition, respect and enforcement of the rights and liberties of all men and women under its jurisdiction.
N.B.
Source: Jean-Claude Bernheim, Giovana Borgese, Racisme et Police en France, Rapport de la FIDH no. 153, ISBN 077.8736, Montréal, 20 Mai 1992.