Extract
[...] II - On the proof of discrimination in the case of a refusal to rent Martin refused to rent an apartment to a person of Maghrebi origin. Following this refusal, the law enforcement authorities conducted a test, while one of Martin's employees recorded a conversation, allowing for the collection of statements that may reveal a discriminatory intention. Are the evidence produced, including the recorded conversation and the testing, admissible and sufficient to establish the existence of a punishable discrimination in the case of a refusal to rent? [...]
[...] Was the identity check carried out on Imran regular in light of the provisions of the Criminal Procedure Code? Pursuant to Article 78-2, paragraph of the Criminal Procedure Code, judicial police officers and agents may carry out an identity check on a person when there is one or more plausible reasons to suspect that they have committed or attempted to commit an offense, that they are preparing to commit one, or that they are likely to provide useful information to the investigation. [...]
[...] In criminal matters, proof is generally free. The Court of Cassation admits that testing constitutes a mode of admissible proof to establish discrimination, provided it highlights a difference in treatment based on a prohibited criterion (Crim June 2002, n° 01-85.559). Furthermore, a recording made without the knowledge of its author, although unfaithful, can be admitted as evidence provided it was not provoked by the investigators and is subject to the free appreciation of the criminal judge. In this case, the refusal opposed by Martin concerns the rental of an apartment, which is a good targeted by Article 225-2 of the Penal Code. [...]
[...] Such a family connection, although legally broken, is likely to raise, from the point of view of a litigant, a legitimate doubt as to the impartiality of the magistrate concerned. Regardless of any demonstration of a personal bias, the mere participation of this magistrate in the formation of judgment is thus susceptible of impairing the objective requirement of impartiality, as defined by the European Court of Human Rights in the judgments Piersack v. Belgium and De Cubber v. Belgium. As a result, the impairment of the principle of objective impartiality justifies the exercise of an appeal to contest the regularity of the judgment rendered. [...]
[...] On the other hand, the Court of Cassation admits the regularity of a check when it is based on specific circumstances of time and place, as well as the behavior of the person being checked, particularly when they are found in the immediate vicinity of the scene of a recently discovered offense or adopt a flight behavior (Crim., October No. 08-84.107). Finally, the regularity of the identity check is assessed independently of the elements discovered subsequently, which have no impact on its legality (Crim., June No. 13-87.073). In this case, around two o'clock in the morning, police officers spotted Imran in the immediate vicinity of a parked vehicle with a broken window, revealing the existence of a recently committed apparent offense. Shortly after this discovery, Imran fled in the presence of law enforcement before being caught and checked. [...]
