The case of Laurent Gabre Gabarum v. France. The opinion of the Committee dated May 10, 2016. Communication No. 52/2012.
In 2012, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to France.
The Committee considered: The fact that the courts strongly required the author to prove that there was a discriminatory intention contradicts the prohibition of any conduct with discriminatory consequences provided for in the Convention on the Elimination of All Forms of Racial Discrimination, as well as the procedure for sharing the burden of proof.
As could be seen from the text of the Opinion, the author claimed that the State party violated article 2 of the Convention because, in his opinion, France had not taken effective measures to criminalize all forms of racist and xenophobic behavior and to combat the tendency observed in society to stigmatize and stereotype French people of African descent on the basis of their skin color or their national origin or of ethnic and racial origin in violation of the principles of the Convention.
The Committee's legal position: Alleged victims of racial discrimination are not required to prove discriminatory intentions against them (paragraph 7.2 of the Opinion).
The Committee's assessment of the factual circumstances of the case: the author's position was taken into account, according to which the employer had to prove that he did not rely on any illegal criterion to justify different treatment of the author compared to his colleagues. The Committee noted the indication of the Court of Appeal that it was the author who had to prove the fact of ill-will towards him by any means, including by the necessary comparison of his professional situation with the situation of others. The Committee also took note of the author's complaint, according to which, during the process in the domestic courts, including the Court of Appeal, he presented evidence indicating that discriminatory practices had been applied to him, and that, accordingly, he fulfilled his obligation to provide the information necessary to shift the burden of proof. The Committee considered: The fact that the courts, in particular the Court of Appeal, strongly required the author to prove the existence of discriminatory intent, contradicts the prohibition of any conduct with discriminatory consequences provided for in the Convention, as well as the procedure for transferring the burden of proof provided for in article L-1134-1 (former article L122-45) of the French Labour Code. Since the State party itself had adopted this procedure, the fact that it was improperly applying it indicated a violation of the author's right to an effective remedy (paragraph 7.2 of the Opinion).
The Committee's conclusions: the facts indicated a violation by the State party of articles 2 and 6 of the Convention (paragraph 8 of the Opinion).