Legal summary
June 2025
Seydi and Others v. France - 35844/17
Judgment 26.6.2025 [Section V]
Article 14
Discrimination
Allegations of discrimination during identity checks in street: no violations; violation
Facts – The six applicants, who described themselves as being of African or North African origin, had their identities checked by the police in a public place, in the street, between 2011 and 2012. Five applicants were searched and one of them was subjected to three checks in ten days, including two on the same day. According to the applicants, the identity checks were conducted solely because of the colour of their skin – thus on racial grounds – and were therefore discriminatory and infringed their right to respect for their private life.
They made use of the compensatory remedy provided for in Article L. 141-1 of the Code of Judicial Organisation, seeking to have the State found liable for the defective operation of the public justice system, but were unsuccessful. In six judgments of November 2016 the Court of Cassation rejected their appeals on points of law, ruling out any gross negligence or discrimination.
Law – Article 14 in conjunction with Article 8:
In the light of recent judgments concerning racial profiling (see Basu v. Germany, Muhammad v. Spain and Wa Baile v. Switzerland), the case was examined from the standpoint of these two Articles, which were deemed to apply to the present case.
(1) Procedural aspect – Alleged breach of the duty to ascertain whether discriminatory grounds had played a part in the identity checks – The domestic proceedings in the present case differed from those described in the above-cited judgments on similar subject matter, in that it had been the civil courts dealing with the applicants’ cases that had sought to ascertain whether or not, on the basis of the standard of proof in Article 9 of the Code of Criminal Procedure, the conduct complained of had amounted to gross negligence attributable to the State for the purposes of Article L. 141-1 of the Code of Judicial Organisation. Accordingly, the applicants’ grievances had to be examined in the light of the specific features of the remedy they had chosen. In that regard, the Court noted that in other judgments delivered by the Court of Cassation in the same year – 2016 –, and in judgments by the relevant Court of Appeal from 2021, the State had been held liable for gross negligence on the basis of a finding of discrimination. That case-law showed the effectiveness both of the remedy provided for in Article L. 141-1 of the Code of Judicial Organisation, and of the domestic courts’ reviews. In sum, although a finding of gross negligence would have required establishing the existence of a proven deficiency resulting from a fact or a series of facts reflecting the inability of the public justice system to fulfil its mission, the remedy used by the applicants had in principle been adequate. Their applications had been examined by a court of first instance, the Court of Appeal and the Court of Cassation, all of which had adopted similar solutions in concordant decisions after a careful assessment of the evidence adduced in support of the allegations of discrimination. In particular, the Court of Appeal and the Court of Cassation had analysed the situations complained of in the light of international instruments prohibiting discrimination, including the Convention and the Court’s case‑law. They had notably found it necessary to adapt the burden of proof. The domestic courts had considered that the applicants were permitted to produce prima facie evidence of a differentiation of treatment amounting to a presumption of discrimination by demonstrating the coexistence of strong, clear and concordant inferences. They had further stated that, in such a scenario, it was for the authorities to show that the differentiation of treatment had been justified. Such coexistence could be established, for example, by general statistical reports, by factual or legal circumstances surrounding the checks and by evidence from third-party witnesses, whether they knew the person being checked or not.
The Court considered that the domestic courts had, in thoroughly reasoned decisions, discharged their duty to ascertain whether discriminatory grounds had played a part in the identity checks. The applicants had thus been afforded a careful and effective examination of their allegation of racial profiling, which had focussed on whether there had been any discriminatory behaviour on grounds of ethnic-minority status. The courts had conducted a balanced, objective and comprehensive assessment of the cases before them, giving due consideration to the specific issues inherent in adducing evidence in such matters. In each of the cases at hand, they had found that none of the witness statements demonstrated any differentiation of treatment. They had thus considered that the evidence produced was insufficient to establish that the applicants had been victims, in their personal capacity and in the circumstances of time and place alleged, of any discriminatory conduct on the part of the police.
Conclusion: no violation (unanimously).
(2) Substantive aspect – Alleged discriminatory nature of the identity checks –
(a) Whether there was an adequate legal and administrative framework – The Court noted that the identity checks by the police were governed by Article 78-2 of the Code of Criminal Procedure, which provided for three types of checks and whose provisions had been found constitutional by the Constitutional Council. The Article in question laid down a strict framework describing the various situations and conditions in which identity checks could be carried out by the police for the purpose of preventing and combating crime. It sought to prevent the development of a practice of generalised, discretionary and unregulated identity checks. The Constitutional Council had pointed out that the constitutional aim of seeking out the perpetrators of crime could justify the use of identity-check procedures and that, while it was open to the legislature to provide that checks carried out in such circumstances did not necessarily have to be linked to the individual’s conduct, such a practice would be incompatible with respect for personal freedom, in particular freedom of movement, if it were generalised and discretionary. The Code of Ethics of the National Police Force already provided at the relevant time that officers were to carry out their duties in conformity with the Declaration of the Rights of Man and of the Citizen, the Constitution, international treaties and the law and to conduct themselves in an exemplary manner with absolute respect for individuals. The Court noted that the safeguards set out in the domestic legal framework had been strengthened since the events in issue and considered that the framework applicable at the time of the events had already been compatible with the requirements of Article 14 in conjunction with Article 8 of the Convention.
(b) Whether there was evidence of discrimination –
(i) Methodology – Reports and decisions by national and international bodies had found that, although some discriminatory checks had taken place in France, they were by no means part of a generalised system. The domestic courts, relying on the Court’s case-law to ascertain whether there had been, for each applicant, prima facie evidence of a differentiation of treatment demonstrated by the coexistence of strong, clear and concordant inferences, had taken into account the reports and statistics adduced before finding that they were not sufficient in themselves to establish the existence of discrimination in the circumstances of each case.
For each identity check – the occurrence of which the Government had not disputed even though the authorities had not kept any official records – the Court had to determine whether the applicants had produced individualised prima facie evidence that they had been treated differently from another individual in an analogous or relevantly similar situation. In the Court’s view, given that there was a specific framework provided for in Article 78-2 of the Code of Criminal Procedure, which did not in itself prescribe any difference in treatment and which provided that there had to be objective reasons for identity checks, the mere fact of having one’s identity checked was not sufficient to establish a presumption of discrimination without an examination of the circumstances of each check. That was true even when combined both with the perception of having been targeted because of one’s presumed origin or one’s skin colour, and with statistics that pointed to the existence of racial profiling during identity checks in France.
(ii) Examination of whether or not the facts concerning the applicants as assessed in the light of the overall context in France, both in terms of how the checks had been carried out and of the surrounding circumstances, amounted to a presumption of discriminatory treatment –
- In five identity checks, all of which had had at least one identified legal basis, the applicants had not produced individualised prima facie evidence of a differentiation of treatment by demonstrating the coexistence of sufficiently strong, clear and concordant inferences capable of giving rise to a presumption of discrimination. Accordingly, the necessary threshold had not been attained to establish a presumption in support of the argument that the identity checks (including searches and pat-downs where relevant) had been conducted on discriminatory grounds.
Conclusion: no violation (unanimously) (Bocar Niane, Mounir Seydi, Dia Abdillahi, and Amine Mohamed Dif and Lyes Kaouah).
- Karim Touil, for his part, had produced general statistics showing that a certain segment of the population, to which he claimed to belong, was “over-checked”. His identity had been checked three times in ten days: twice in the same day, and once with no known legal basis. Contrary to the domestic courts’ assessment of that aspect, the Court ultimately considered that although the applicant had not expressly referred to any comparison group that had allegedly been treated differently during his identity check, and even though the other people with him had also had their identities checked, all the circumstances surrounding his three checks – one of which had had no legal basis –, taken both together and in conjunction with the official reports and statistics showing cases of racial profiling during identity checks in France, amounted to the coexistence of strong, clear and concordant inferences capable of giving rise to a presumption of discrimination. The burden of proof was thus shifted to the Government, which had failed to provide objective and reasonable justification for the decision to target the applicant for any of his three identity checks. In short, there was a presumption of discriminatory treatment against him that the Government had been unable to rebut.
Conclusion: violation (six votes to one) (Karim Touil).
The Court also found, unanimously, that there had been no violation of Article 13 in conjunction with Article 14.
Article 41: EUR 3,000 in respect of non-pecuniary damage (Karim Touil).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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