E/CN.4/2004/18 page 10 compelling state interest which justified the consideration of race, in association with other criteria such as socio-economic origin or the experience and skills of candidates, in the selection of students, insofar as it did not imply a systematic use of quotas. The Court considered, moreover, that the practice could still be used for another 25 years. The University of Michigan case showed, however, that there is opposition to affirmative action at the highest political level, considering that support for the plaintiffs was expressed by the President of the United States himself. 2. France 20. The French Government informed the Special Rapporteur that several legislative amendments had been adopted to help combat racial discrimination. Thus Act No. 2003-98 of 23 February 2003 introduced a new aggravating circumstance related to racism, xenophobia and anti-Semitism (article 132-76 of the Criminal Code). The aggravating circumstance must be objectively established and is confirmed only “if the offence is preceded, accompanied or followed by statements, writings, images, objects or acts of any kind offending the honour or esteem of the victim or group of persons of which the victim is a member on account of their real or presumed belonging or otherwise to a particular ethnic group, people, race or religion. The effect of this aggravating circumstance is to increase the applicable penalty and in some cases to modify the type of offence (e.g. dangerous damage to private property aggravated by racist motives become a criminal offence). Racist, xenophobic or anti-Semitic motivation may be considered to be an aggravated circumstance for the following offences: voluntary homicide, torture and acts of barbarism, violence unintentionally leading to death, violence leading to mutilation or permanent disability, and damage to private property by dangerous means. 21. Similarly, Act No. 2003-73 of 17 January 2002, the Social Modernization Act, amended the second paragraph of article 1 of the Act of 6 July 1989 concerning housing leases by explicitly banning refusals to let for reasons connected with the origin, name, physical appearance, customs, sexual leanings, beliefs, race or nationality of tenants. 22. With regard to judicial procedure, in a decision of 11 June 2002, the Criminal Chamber of the Court of Cassation admitted the submission of evidence based on the practice of “testing” on the grounds that in criminal matters the principle of freedom of evidence should prevail, in conformity with article 47 of the Code of Criminal Procedure. “Testing” consists in bringing several individuals to the entrance of a public establishment, usually in the presence of a law officer, and observing the way in which persons of different origins are received. Offences of racial discrimination, in the sectors of leisure, tourism, housing or other types of economic activity, are often hard to prove and evidence is not easy to come by. The recognition of the “testing” method is therefore to be particularly welcomed. 23. A particular reference has been made in French law also to the offence of grave desecration. This offence, which normally incurs a prison sentence of two years, is deemed to be aggravated if committed on the grounds of the real or presumed belonging or otherwise of the deceased persons to a particular ethnic group, people, race or religion. Penalties are then increased to three years’ imprisonment and a fine of 300,000 francs. Similarly, the penalty for exhuming a corpse, which is normally two years’ imprisonment, is raised to five years if the offence is committed for racist reasons (article 225-18 of the Criminal Code).