PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation BURDEN OF PROOF: APPROACH OF THE COUNCIL OF STATE IN FRANCE In a 2009 case, the supreme administrative court of France, the Council of State,696 set out the procedure regulating the burden of proof in discrimination cases. As the French system is inquisitorial by nature, the claimant could not rely on European Union law requiring a shift of the burden of proof in prima facie discrimination cases,697 in her claim challenging a decision taken by the Ministry of Justice. However, the court recognized that, in the inquisitorial system, the administrative judge’s responsibility, generally, was to see that the parties provided all the elements to establish their cases. In discrimination cases, this responsibility must be exercised by taking into account the difficulties of proof inherent in this area. Consequently, in the court’s judgment, while it is up to the complainant to submit to the judge the elements of fact likely to give rise to a presumption that the principle of equality has been infringed by a given administrative decision, it is incumbent on the defendant to produce those elements of fact that make it possible to establish that the contested decision was based on objective elements unrelated to any discrimination. 3. Evidence Approaches to the admissibility and use of evidence in discrimination cases will depend on the procedural rules of the national legal system. Such rules must not obstruct access to justice for victims of discrimination and must not conflict with the principle that the right to non-discrimination must be made practical and effective. An extensive range of sources and materials have been relied upon to evidence patterns of discrimination at the regional level, including statistical evidence,698 evidence from testing699 and reports of human rights organizations, special procedures of the Human Rights Council and the periodic reports of treaty bodies.700 The European Court of Human Rights has indicated that there are no “procedural barriers to the admissibility of evidence”701 under the European Convention on Human Rights, and both the European and Inter-American Courts have demonstrated a willingness to take into account broader contextual evidence of systemic discrimination in finding a violation of the right to non-discrimination under their respective Conventions.702 96 696 France, Council of State, Case No. 298348, Decision, 30 October 2009. Available at www.legifrance.gouv.fr/affichJuriAdmin. do?idTexte=CETATEXT000021219388 (in French). For a useful summary of the case, see Council of State, “Les grandes décisions du Conseil d’État”, 30 October 2018. Available at www.conseil-etat.fr/ressources/decisions-contentieuses/les-grandes-decisions-du-conseil-detat/conseil-d-etat-assemblee-30-octobre-2009-mme-perreux (in French). 697 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, art. 10. 698 It is settled law in a number of jurisdictions that claimants may rely on statistical evidence and that national courts take such evidence into account in situations in which it is valid and significant. See, for instance, European Court of Human Rights, D.H. and others v. the Czech Republic, Application No. 57325/00, Judgment, 13 November 2007, paras. 187–188, in which the Court noted that, in relation to indirect discrimination, in particular, statistics “which appear on critical examination to be reliable and significant” were sufficient to constitute the prima facie evidence the claimant was required to produce. For further discussion, see European Union Agency for Fundamental Rights and Council of Europe, Handbook on European Non-Discrimination Law, pp. 242–248. This does not, however, mean that indirect discrimination cannot be proved without statistical evidence (ibid.). 699 In an expanding number of jurisdictions, testing is a court-recognized technique used to establish discrimination. Testing has been used by government authorities, equality bodies, national human rights institutions and non-governmental organizations to uncover, document and establish patterns or practices of discrimination. Testers pose “as bona fide job or home seekers” or seek services such as in restaurants, hotels or taxis, for example. In the process of the test, “testing team partners are sent at closely spaced intervals to seek information about a job, an apartment or the availability of a certain service” (footnote omitted). See Fitsum Alemu, “Testing to prove racial discrimination: methodology and application in Hungary”, European Roma Rights Centre, 3 October 2000, and the examples of national law practice cited therein. Available at www.errc.org/roma-rights-journal/testing-to-prove-racial-discrimination-methodology-and-application-inhungary. 700 See, for instance, European Court of Human Rights, Volodina v. Russia, Application No. 41261/17, Judgment, 9 July 2019. 701 European Court of Human Rights, D.H. and others v. the Czech Republic, Application No. 57325/00, Judgment, 13 November 2007, para. 178. 702 See, for instance, European Court of Human Rights, Carvalho Pinto de Sousa Morais v. Portugal, Application No. 17484/15, Judgment, 25 July 2017, para. 54; and Inter-American Court of Human Rights, Case of the Yean and Bosico Children v. the Dominican Republic, Judgment, 8 September 2005, paras. 168–170.