What is the Rights Defender?
The Rights Defender is an independent state institution created in 2011 and enshrined in the Constitution: ‘The Rights Defender ensures respect for rights and freedoms’ (Art. 71-1 of the Constitution).
The Rights Defender was born from the merger of four institutions: the Ombudsman of the Republic, the Children’s Defender, the High Authority for the Fight against Discrimination and for Equality (HALDE), and the National Commission for Security Ethics (CNDS).
The Rights Defender has nearly 250 people working at the headquarters in Paris and about 500 delegates in metropolitan France and overseas territories.
It has two missions:
- To defend people whose rights are not respected;
- To ensure equality for all in access to rights.
Areas of Competence
Defense of Users’ Rights in Public Services
The Rights Defender can intervene if you have a problem with:
- A state administration (prefecture, ministry, tax office for example);
- A local authority (city hall, departmental and regional council);
- A hospital establishment;
- An organization responsible for managing a public service (Family Allowance Funds (CAF), Employment Center, energy providers, SNCF for example).
It can help you when you have taken all the steps to resolve your problem with the organization concerned and no solution has been found.
Children’s Rights
Recognized by the United Nations Committee on the Rights of the Child, the Rights Defender ensures respect for the ‘best interests of the child’, meaning that the child’s interest is considered paramount. It can intervene in many areas for the protection of children’s rights, particularly in matters of health and disability, criminal justice, adoption, schooling for all, and foreign minors.
Fight Against Discrimination
The Rights Defender fights against discrimination and promotes access to rights for victims of such acts. The alleged perpetrator of discrimination can be a natural or legal person (an association for example), a private or public person (a state service, a local authority for example).
Respect for the Ethics of Security Professionals
The Rights Defender ensures compliance with ethics by persons carrying out security activities in France. It can intervene in security activities carried out by the following persons:
- Public security agents (police officers, gendarmes, customs officers, prison guards…);
- Agents of organizations entrusted with a public service mission (for example, public transport surveillance agents);
- Employees of private security companies.
You can thus refer to it if you are a victim or witness of behaviors that seem illegal to you, such as:
- A disproportionate use of force;
- Unworthy behavior (inappropriate gestures or words, insults, threats);
- An abusive body search;
- An identity check that takes place under abnormal conditions;
- Difficulties in filing a complaint.
Guidance and Protection of Whistleblowers
The Rights Defender is responsible for ‘directing to the competent authorities any person reporting an alert under the conditions set by law, to ensure the rights and freedoms of this person’ (Law No. 2016-1691 of December 9, 2016 on transparency, the fight against corruption and the modernization of economic life).
Any person may ask the Rights Defender to certify their status as a whistleblower (Organic Law No. 2022-400 of March 21, 2022). This formal recognition will facilitate the whistleblower’s access to various protective measures against retaliation as well as access to financial support mechanisms.
Means of Action
To ensure respect for rights and freedoms, the Rights Defender has two means of action:
1. It conducts actions to promote equality. In this capacity, it can:
- Promote and conduct studies;
- Propose reforms;
- Give opinions on future laws;
- Propose tools for everyone (documentation, training for example).
2. It legally processes the individual complaints it receives:
To investigate the requests addressed to it, the Defender has broad powers and can act in different ways:
Request for explanations
The investigation procedure always involves comparing the viewpoints of the ‘complainant’ and the person accused. The latter cannot refuse to communicate information to the Defender of Rights. If they refuse, the Defender can issue formal notices and then refer the matter to a judge for interim relief, or invoke the offense of obstruction.
An amicable settlement
The amicable approach is preferred when complaints indicate a procedural error, a misunderstanding, or a failure of an administration. In this case, the Defender of Rights intervenes by facilitating dialogue between all concerned parties. The amicable settlement can take different forms, informal settlement with simple exchanges of letters or mediation framed by law that can lead to various solutions and sanctions.
Recommendations
If an amicable settlement is not possible, the Defender of Rights can formulate a recommendation, a document by which he officially requests in writing that the problem be resolved and/or that a measure be taken within a deadline he sets.
Regarding a particular situation, it is called an ‘individual recommendation’. Other recommendations ‘with general scope’ allow for ending practices affecting several people.
In the absence of a response or if the response is insufficient, the Defender of Rights can exercise a power of injunction, within a new deadline that he sets.
If no action is taken on the injunction, the Defender of Rights may decide to make public a special report, revealing the name of the person accused.
The request for sanctions
The Defender of Rights can ask the authority with the power to do so to take disciplinary sanctions against the professional who has committed a fault.
Observations before the judge
The Defender of Rights can intervene before all national and European jurisdictions, to present his observations, orally or in writing. In all cases, the Defender of Rights intervenes with complete independence and does not represent any of the parties.
Examples of decisions made by the Defender of Rights regarding discrimination based on religion
The Defender of Rights has ruled several times on cases related to discrimination based on religion, particularly Islam, with situations being diverse and potentially involving the professional environment as well as access to services or leisure activities.
For example, he ruled on the complaint of a prison guard who had passed the internal competition to be appointed to a higher-level position but whose appointment was refused by the management. The complainant believed that the refusal decision was discriminatory as it was based on his religion, as wearing a beard or possessing a Quran and two books on Islam in a space reserved for guards had previously been held against him. The investigation conducted by the Defender found that the accusation of proselytism against the complainant was unfounded and that it was indeed discrimination based on religion, this fault being of a nature to give rise to compensation for the damages suffered (Decision of the Defender of Rights 2021-192 of July 9, 2021).
The Defender of Rights had the opportunity to rule on the refusal to hire a Muslim candidate by a temp agency for the position of administrative assistant. During her job interview, she was told that she would have to remove her headscarf in the client company as well as with all clients of the temp agency. The Defender of Rights’ investigation revealed that the temp agency provided no evidence to demonstrate that an employee performing administrative functions would incur security risks justifying the removal of her headscarf. The Defender of Rights concluded that there was a practice of ‘intersectional discriminatory recruitment based on sex, religion, and physical appearance against the employment intermediary’ (Decision of the Defender of Rights 2020-214 of December 9, 2020).
Other decisions related to wearing headscarves have been made by the Defender of Rights. For instance, he was approached by a woman who was excluded from an associative training center because of her headscarf. This exclusion was based on internal regulations. The Defender of Rights recommended modifying the association’s regulations and discriminatory practices against people wearing religious symbols, as well as compensating the person concerned. Subsequently, the association’s internal regulations were modified and the parties signed a settlement agreement (Decision of the Defender of Rights mld-2016-032 of July 12, 2016).
The Defender was also able to intervene as a mediator and contribute to an amicable settlement of the dispute. This was the case with a complainant who was denied access to training for the State Diploma of Nursing Assistant, which was to take place in a private institution, if she did not remove her headscarf. The Defender requested the removal of any discriminatory clause from the internal regulations. The latter was indeed modified and the complainant was finally able to follow her training while wearing the headscarf (Amicable settlement of the Defender of Rights RA-2017-042 of May 15, 2017).
The Defender of Rights was approached with a complaint regarding a sports center’s refusal to register a Muslim woman wearing a turban, as the internal regulations prohibited all head coverings. The Defender of Rights considered that this seemingly neutral prohibition rule constitutes indirect discrimination and that the general and systematic ban on all head coverings, including religious ones, is disproportionate and therefore discriminatory. He recommends that the sports center’s internal regulations be modified and that the sports center change its practices towards Muslim women, including the complainant (Decision of the Defender of Rights 2018-290 of December 21, 2018).
Still regarding the headscarf, the Defender of Rights was approached with a complaint about the obligation to present a photo with a “bare head” to obtain a transport ticket and thus travel on a regional network. He considered that this obligation to remove one’s headscarf to obtain a transport ticket, in compliance with illegal general terms of sale, characterizes a discriminatory practice based on religion (Decision of the Defender of Rights 2020-134 of October 2, 2020).
Who Can Approach the Defender of Rights?
The Defender of Rights can act on his own initiative when he deems his intervention necessary. But he can also be approached by:
- Any natural or legal person encountering difficulties in their relations with an administration or a public service;
- A French parliamentarian or a French elected member of the European Parliament;
- A foreign institution that has the same functions as the Defender of Rights;
- Any natural or legal person who is a victim of questionable behavior by a security professional;
- Any natural or legal person who considers themselves discriminated against;
- An association declared for at least 5 years whose statutes combat discrimination jointly with the victim or with their agreement, or an association whose statutes defend children’s rights;
- A minor, their family members or legal representatives;
Medical or social services.
How to Approach the Defender of Rights?
The Defender of Rights can be approached in four ways:
- By filling out an online form accessible on the Defender of Rights’ website.
- By contacting a delegate of the Defender of Rights in your department.
- By sending a free letter, without postage, to the Defender of Rights (Defender of Rights, Freepost 71120, 75342 Paris CEDEX 07).
- By directly calling the Defender of Rights.
The institution asks that you include with your complaint a complete file, accompanied by a detailed account of the facts, all correspondence exchanged with the services in question, as well as all relevant documents.
APPLICABLE REFERENCES
Constitutional Law No. 2008-724 of July 23, 2008, on the modernization of the institutions of the Fifth Republic, establishing a Defender of Rights in Article 71-1 of the Constitution; Organic Law No. 2011-333 of March 29, 2011, relating to the Defender of Rights; Organic Law No. 2016-1690 of December 9, 2016, concerning the competence of the Defender of Rights for the guidance and protection of whistleblowers; Organic Law No. 2022-400 of March 21, 2022, strengthening the role of the Defender of Rights in matters of whistleblowing.
Decision 2012-187 of November 27, 2012, establishing the internal regulations of the Defender of Rights;
Decree No. 2017-564 of April 19, 2017, on procedures for collecting reports issued by whistleblowers; Decree No. 2012-213 of February 15, 2012, amending Decree No. 2011-905 of July 29, 2011, relating to the organization and functioning of the services of the Defender of Rights; Decree No. 2011-904 of July 29, 2011, relating to the procedure applicable before the Defender of Rights.
