Discrimination is a criminal offence, which means that you can always bring your case before a criminal court besides civil or administrative claims.
This criminal claim is possible regardless of who committed the offence: you can file a criminal complaint against a private entity (a company for example) or a public entity (a public education institution, a public hospital, an administrative institution etc.) or by an individual (private or public).
Contents of the complaint
In your claim you should:
- indicate your personal information (name, profession, date of birth, place of birth, nationality, address)
- indicate your opponent information (if not, the complaint will be filed against X)
- detail information of the offence (including the grounds of discrimination) that may have been committed (who, what, when, how)
- indicate names and addresses of any witnesses to the offence
- tell if you file a complaint with party civil status
- describe your provisional or definitive estimate of the damage
- attach relevant documents that substantiate your opinion, if there are any.
Procedure and time limits
The procedure in criminal cases depends on which court is responsible for the claim. Because there are three types of criminal offences (crime, misdemeanour and contravention), there exist three criminal courts.
Discrimination is a misdemeanour, therefore you should bring your case before the Correctional Court (tribunal correctionnel). You can bring your case within 6 years after the facts occurred. Read more about the Correctional Court.
There are different ways of initiating criminal proceedings:
- Simple criminal complaint (plainte simple): You can file a complaint at the police station or “gendarmerie” who will then forward it to the public prosecutor. You can also file a complaint directly to the public prosecutor by sending a letter to the court. The prosecutor will then decide if he/she will initiate criminal proceedings. If he refuses or does not answer and you wish to initiate criminal proceedings on your own, you can do one of the actions below.
- Criminal complaint with a civil action (plainte avec constitution de partie civile): in this case the complaint is sent directly to the investigating judge. He/she will conduct an investigation and then refer the case to the criminal court if he/she considers that the offence is established. This method automatically initiates criminal proceedings.
- Direct summons (citation directe): if you know the identity and contact details of the person who committed the discrimination, you can take the matter directly to the criminal court by means of a direct summons. This procedure is quicker, as it avoids the investigation by the investigating judge, however you should clearly indicate in your claim the evidence of the discrimination because the Court will not investigate the facts for you.
If the public prosecutor rejects your request to initiate criminal proceedings and you consider that this decision was not well-reasoned, you can appeal it to the general prosecutor of the court of appeal. The procedure and time-limits for the appeal must be indicated in the decision. If the general prosecutor approves of your appeal, he/she can order the public prosecutor to initiate proceedings. You will be informed if he/she considers your appeal unfounded.
Court’s assessment
The Correctional Court will first assess whether you have been discriminated. When dealing with cases concerning discrimination, the burden of proof is shared between the victim and the defendant. This means, that you first need to provide the court with evidence that a discrimination took place. The duty to provide this evidence is called the burden of proof. You may prove the discrimination by any means, as long as that the means to provide the evidence are not unfair.
To prove the discrimination, you will have to show that you were treated differently than another person was or would have been treated in a similar situation on the basis of a prohibited ground.
If the court thinks that the facts you have submitted give rise to a reasonable assumption that such violation has indeed occurred, it will conclude that you have been discriminated against unless your opponent can provide sufficient explanation for the way you have been treated. The burden of proof, that is the obligation to prove that actions are legal and justified, is then shifted to your opponent. This will usually mean that they have to show that the way in which you were treated was not different than the way others were treated, or in the case you were treated differently that such treatment had nothing to do with your characteristics (your sex, age, race, ethnic origin, religion or belief, disability etc.), or that there was a legitimate, objective and reasonable ground for differential treatment.
Penalties
Under criminal law, discrimination is considered a violation of human dignity. Discrimination is therefore punishable by a maximum of 3 years' imprisonment and a fine of 45,000 euros.
If the discrimination is committed by a public official or in a public service, the offence is more severely punished: 5 years' imprisonment and a fine of 75,000 euros.
Compensation
The Correctional Court will only award compensation if it has been requested by the victim through a civil action. This civil action gives the victim a civil party status which enables the victim to request compensation for the damage suffered and take part in the criminal proceedings.
The victim can request compensation at any time during the criminal proceedings before the final judgment is given. This civil action can happen before the trial or during the trial.
1. Before the trial
A claim for compensation can be made at any time during the investigations, for example after having filed a complaint at the police station. The victim can also claim for compensation when filing a complaint directly to the public prosecutor. In this case the victim must indicate clearly in the complaint his/her desire to file a civil action.
The civil claim can also be made right before the trial by sending a letter to the court with all supporting documents (medical certificates, invoices etc.)
2. During the trial
The victim may ask for compensation on the day of the trial in the Correctional Court, either orally when the case is raised by the president of the court or by submitting a written application. This action must be taken before the public prosecutor intervenes and asks the court to condemn the perpetrator.
Once the victim has initiated a civil action, the Correctional Court will fix the amount of damages that the convicted person must pay to the civil party.
Read more information about the civil party status.
To obtain compensation, the victim must prove the actual harm caused directly by the offence. Compensation may include material damage (pecuniary), physical and moral damages (non-pecuniary). The amount of compensation is determined by the court. More information about the compensation.