Is the French “stop and search” law compliant with the Convention?

On January 12th 2010, the ECHR ruled in judgment Gillan and Quiton v. United Kingdom, that the “stop and search” of the 2 applicants, were not “in accordance with the law” because the power to stop and search under section 44 of the terrorist act 2000, was not subject to a requirement of “reasonable suspicions” (§86) and to adequate legal safeguards (§87). Therefore the Court found a violation of article 8 of the Convention and didn’t examine the allegation of violation of article 5.

The article 78-2 of the French code of penal of procedure, allows “stop” with no requirement of “reasonable suspicions”, to protect “public order” or on a road, highway near a land border, in airports,  in train stations or in an area defined by an order of the local prosecutor of the Republic. Frisks and “volontary” searches are not allowed by law but widely practiced. The “stop and search” is not officially recorded if the citizen is not brought to the police station. It makes it extremely difficult for an individual to challenge a “stop and search” in an action for damages (art.5-5 and art. 13).

Furthermore, searches of vehicles on the road or in parking lots are allowed under article 78-2-2 of the code of penal procedure with no requirement of “reasonable suspicions” in an area defined by an order of the local prosecutor of the Republic. Police officers can even detain any individual stopped for up to 4 hours under article 78-3 for further verification if the individual can’t or refuse to prove his identity. The detainee is not informed of the legal basis of the “stop” (art.5-2) but can request in case of further verification, the notification of the prosecutor of the Republic and upon release a custody record. Under French law, there is no proceedings by which the lawfulness of this detention could be decided by a court (art.5-4).

In June 2009, the NGO Open Justice Initiative released his report “Profiling Minorities: A Study of Stop-and-Search Practices in Paris“, with findings of discriminatory  “stop and search” based on ethnic profiling and made recommendations to the French authorities. No amendment were made to the law.

On June 22th 2010 the Court of Justice of the European Union ruled in cases Melki (C-188/10) and Abdeli (C-189/10) that a section of article 78-2 was in violation of the Schengen Borders Code (EC) 562/2006 due to the lack of requirement of “behaviour and of specific circumstances giving rise to a risk of breach of public order”. No amendment were made to the law.

In conclusion, the French “stop and search” law raises serious concern of compliance with articles 5-1, 5-2,  5-4, 5-5, 8 and 13 of the Convention. The practice of discriminatory “stop and search” could add a violation of article 14 of the Convention to the previous violations.