Hate crime is not an administrative offence in French administrative law. However, it may engage administrative liability if the hate crime was committed by a public authority or a public agent.
Liability of the public authority
Public authorities in France are subject to the principle of administrative liability which requires them to pay financial compensation for any damage caused by their actions. This principle can take several forms:
- Contractual liability: This liability occurs when the public authority fails to perform the obligations set out in a contract between them and the other signatories.
- Extra-contractual liability: It is the obligation of the public authority to compensate for damages caused by their activities which are not based on a contract.
There are two types of extra-contractual liabilities:
- Liability for fault: The victim must prove that the administration committed a fault (a misconduct).
- No-fault liability: In some cases, the victim does not need to prove the administration’s fault but only that the administration’s actions caused a damage to them. This can be the case when the damage is the result of a risk inherent in the activity of the public authority (e.g., a damage related to the use of dangerous materials in public works) or when the damage is the result of a law or legal decision which burdens someone and reflects an inequality before public burdens (e.g., a law prohibiting the marketing of a product that had made a company’s fortune, thereby ruining that company).
In order to hold liable a public authority for a hate crime or a discriminatory measure that was caused by the authority, the victim must prove a fault because the type of liability for this kind of damage is the liability for fault. The existence of discriminatory practices may be indicative of a fault or misconduct by the public authority.
example Identity checks that are systematically carried out in a discriminatory manner without any justification (e.g., when they are carried out using criteria based on physical characteristics associated with the origin of the individual) constitute a fault, a gross negligence from the public authorities.
In such case, the victim must take action before the competent administrative court to have the misconduct established and to obtain compensation.
Liability of the public agent
The behaviour of a public agent who committed a fault during the performance of his duties may be sanctioned by the administration independently from his criminal liability. This sanction is called a disciplinary sanction.
example A public agent disrupted a meeting of the town council to protest against the opening of a Muslim religious building. The agent wore a mask depicting a pig’s head and made Islamophobic remarks and insults. He was sanctioned for this action that breached his duty of reserve, and as a result was automatically transferred to another work position.
In addition, if the behaviour is a discriminatory insult, an incitement to hatred, discrimination, violence, or a hate crime directed at a person, that person may refer the matter to the public prosecutor to initiate criminal proceedings against the public agent. The person may also report the behaviour to the superior hierarchical authority of the public agent in question, but this authority may not initiate criminal proceedings by themselves and can only take disciplinary measures against the agent.