Message: Laurent Gabre Gabarum vs. France. Opinion No. 52/2012. The opinion was adopted by the Committee on the Elimination of Racial Discrimination (hereinafter referred to as the Committee) May 10, 2016
In 2012, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to France.
Subject matter: discrimination in access to employment, the right to equality before the courts and other bodies administering justice, effective protection and effective remedies against acts of racial discrimination, shifting the burden of proof.
Substantive issue: discrimination based on national or ethnic origin, shifting the burden of proof.
The author claims that the State party violated article 2 of the 1965 Convention on the Elimination of All Forms of Racial Discrimination because, in his opinion, France has not taken effective measures to criminalize all forms of racist and xenophobic behavior and to combat the tendency observed in Renault society to stigmatize and stereotype French people of African descent on the basis of their skin color or their national or ethno-racial origin in violation of the principles of the Convention.
The Committee's assessment of the factual circumstances of the case: The Committee takes note of the author's position, according to which the employer had to prove that he did not rely on some illegal criterion to justify different treatment of the author compared to his colleagues. In this regard, the Committee recalls that alleged victims of racial discrimination are not required to prove discriminatory intentions against them (See the Committee's Opinion on communication No. 56/2014, V.S. v. Slovak Republic, December 4, 2015, paragraph 7.4.). In this case, the Committee notes 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 takes note of the author's complaint, according to which, during the process in the domestic courts, including the Court of Appeal, he presented elements of 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 considers that 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 Labour Code the code. Since the State party itself has adopted this procedure, the fact that it is improperly applying it is a violation of the author's right to an effective remedy. Consequently, the Committee concludes that the author's rights provided for in articles 2 and 6 of the Convention have been violated (paragraph 7.2 of the Opinion) (See communications V.S. v. Slovak Republic, paragraph 7.4, and Ep v. Denmark, paragraph 7.4.).
Conclusions of the Committee: facts.... They indicate a violation by the State party of articles 2 and 6 of the Convention (paragraph 8 of the Opinion).