Human rights aspects of ethnicity-related research. Letter from NJCM.

Google translation of the letter originally written in Dutch.

Leiden, December 19, 2024

Subject: Attention to human rights aspects in ethnicity-related research

Dear Prof. Dr. van Oudenhoven — van der Zee,

With this letter, the Netherlands Committee of Jurists for Human Rights (NJCM) would like to draw your attention to the human rights aspects of research commissioned by you for the SCP in which (anonymised) data on country of birth (including that of parents), or ethnicity, or origin, or on religious beliefs have been processed (hereinafter referred to as: ‘origin-related research’).
We hereby call on you to assess future research and publications that incorporate such data against relevant human rights standards.

Recently, the House of Representatives adopted the Motion of Member Becker, which calls on the SCP to conduct research into “the norms and values of Dutch people with a migration background.” (hereinafter the “Becker Motion”).[ii]
This motion caused a great deal of commotion, to which the SCP has also responded publicly.
However, the motion exposes a broader problem of origin-related research, to which the NJCM would like to draw your attention. The publication of origin-related research can have a reinforcing effect on existing discrimination, prejudices in society and stereotyping. It can also conflict with the autonomy of individual citizens, with the right to self-identification and informed consent and the right to shape one’s own personal identity without government interference. This means that such publications fall within the scope of Article 8 ECHR, the right to respect for private and family life, and a balancing exercise is required. The effects on other fundamental and human rights must also be taken into account, such as Article 1 of the Constitution, Article 14 ECHR (Prohibition of discrimination), Article 9 ECHR (Freedom of thought, conscience and religion).
The SCP has its own role and responsibility to assess whether an investigation or a request to conduct an investigation meets human rights standards. For investigations on its own initiative, all parts of the Dutch government are obliged to comply with human rights standards. The following applies to investigations on request.
According to Instruction 8 sub 1 of the Instructions for the Planning Bureaus, the SCP “will not accept any request that is contrary to the general interest.” This includes research that is contrary to human rights standards. According to Instruction 8 sub 3, it is then up to you as director of the planning bureau and the minister primarily responsible to establish an adequate coordination procedure for accepting requests.

The NJCM will further elaborate on the requirements set out under Article 8 ECHR.

Article 8 ECHR
The text of Article 8 of the ECHR reads as follows:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right other than such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Interference/restriction
In general, publications or statements may constitute an interference with the freedom protected by Article 8 if the expression results in a certain degree of stereotyping [iii] or reaches a certain degree of seriousness.[iv]
The NJCM is of the opinion that there are sufficient indications to assume that the publication of certain surveys constitutes an interference within the meaning of Article 8 paragraph 2 ECHR. This concerns, for example, surveys that attempt to determine acceptance of homosexuality, ‘democratic attitude’, anti-Semitic sentiments, etc. among various subpopulations such as Dutch people with a migration background or Dutch people with a specific origin or religion.
When an interference within the meaning of Article 8 paragraph 2 ECHR occurs, it must be weighed by the government or authorities concerned, as required by paragraph 2 of Article 8 ECHR. An interference is justifiable if it serves a legitimate aim and is necessary in a democratic society. There is a violation of Article 8 if the authorities fail to justify the interference by using the possibilities described in Article 8 paragraph 2.

Legitimate purpose
An interference with the right to respect for private life must serve a legitimate aim. The aim of the interference must fall within one or more of the aims listed in the second paragraph of Article 8 ECHR:

“national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.

This places a burden on the Dutch government to explain for what legitimate purpose the interference is intended.[v]
Moreover, in practice the European Court of Human Rights has not often held that a legitimate purpose (as required in Article 8) was lacking.[vi]
In another area, that of crime statistics linked to data on the origins of suspects and perpetrators, the stated objective since the 1990s has been to “better understand the overrepresentation outlined and to arrive at a targeted approach”. [vii] Another government letter refers to “the policy objective of equal positions”. [viii]
With regard to these objectives, the NJCM would like to repeat the comment made by the European Commission Against Racism and Intolerance of the Council of Europe (hereinafter: “ECRI”) in 2007:
“a considerable amount of information is available in the Netherlands broken down by “allochthony” — “allochthonous” persons [. . .] However, the extent to which this information is used to inform policy aimed at improving the situation of those persons who are found to be at particular disadvantage is not clear to ECRI, especially as social policies in recent years have been targeted less and less at specific ethnic minority groups. Instead, it has been stressed that such information is rather used to target security measures at particular minority groups. [. . .] ECRI stresses the need for such data to be used to monitor patterns of discrimination or situations of disadvantaged facing minority groups. It should not be used for purposes that contribute to further stigmatizing the members of such groups”.[ix]

ECRI warns here that government publications (which include data on migration background or family origin) should be assessed in terms of both their objectives and their effects.
According to Article 8 ECHR, although there may be a legitimate aim, authorities will then have to demonstrate that the interference is necessary in a democratic society. In doing so, the authorities will also have to show any harmful consequences. to weigh in.

Necessary in a democratic society
In addition to the requirement that there must be a legitimate aim for the interference (within the meaning of Article 8), it is also required that the interference be ‘necessary in a democratic society’. This means that the interference must be proportionate: the restriction of the data subject’s privacy must not be disproportionate to the aim that is achieved by the interference. It is not enough that the interference is merely ‘effective’ or ‘useful’, but there must be a ‘pressing social interest’ for the interference.[x]

The principle of proportionality requires that a balancing of interests always takes place [xi], a balancing of the interest that the government claims to serve and the interests of those involved who are protected by Article 8 ECHR. Which (social) circumstances are taken into account depends on the circumstances of the case.[xii]
There are some indications to be found in the existing human rights standards and case law of the ECtHR. In any case, it seems that the social and political

climate and the effect of the publication must be taken into account.xiii In this context, the following contextual circumstances can be considered:
• The extent to which ‘origin’ (for example ‘Moroccan origin’) is linked to negative characteristics or events, in public debate or social media.
• The extent to which an origin-related publication or research can contribute to institutional racism.
• The extent to which discrimination occurs in the Netherlands on the basis of ‘origin’, for example on the basis of surname, when applying for jobs or when looking for housing.
• The extent to which the population (and civil servants) are convinced that research into the norms and values of Dutch people with a migration background may be used for policy or behaviour that — from a legal perspective — constitutes a violation of [xiv] anti-discrimination legislation.
• The extent to which the figures on norms and values are perceived as ‘facts’ and the awareness among the population in the creation of the figures.
Connections can also be made to the recommendations and standards that deal with the use of data on ethnic origin, migration background or country of birth (and that of parents), from European institutions such as ECRI, the European Parliament and the [xv] European Commission.
Furthermore, the effects on other fundamental and human rights must also be assessed, such as Article 1 of the Constitution, Article 14 ECHR (prohibition of discrimination), Article 9 ECHR (freedom of thought, conscience and religion).
The NJCM has serious doubts about whether the SCP’s keeping of “data on cultural and religious norms and values of Dutch people with a migration background”, as requested in the Becker Motion, would pass human rights tests.

Conclusion and appeal
In the future, the SCP will have to carefully examine the extent to which research related to origins complies with the aforementioned human rights standards. The SCP will have to ascertain possible harmful effects and demonstrate that it is necessary (in a democratic society) to still apply certain country or religion classifications to certain survey questions [xvi] and in reports.
Support can be found in the following questions: What is the action perspective? In what way are the studies and publications necessary links for the implementation of concrete measures? Are the possible positive effects not negated by negative effects of a study?
The NJCM sees that — also recently — there is ongoing political pressure being exerted on various ministries to divide Dutch people into groups, categorized by family origin and religious labelsxvii . The NJCM therefore calls on the SCP to apply a careful human rights assessment framework for origin-related research and publications. In line with the independence of the SCP and Instruction 8 of the Instructions for the planning agencies, it is obvious that the SCP develops its own policy framework for this.

Yours faithfully,
Kavita Hira
Chairman NJCM

i As in: Huijnk, W. (2018). The religious experience of Muslims in the Netherlands. The Hague: SCP.
ii Motion 36 600, no. 18 by member Becker, proposed during the Legislative Consultation of 25 November 2024. This motion requests the government to keep track of data on cultural and religious norms and values of Dutch people with a migration background, for example by asking the SCP to investigate this (periodically).
iii Guide on Article 8 of the Convention — Right to respect for private and family life. European Court of Human Rights, 2022, §198: “The Court has found that any negative stereotyping of a group, when it reaches a certain level, is capable of impacting the group’s sense of identity and the feelings of self-worth and self-confidence of members of the group. In this sense it can be seen as affecting the private life of members of the group (Aksu v. Turkey [GC], 2012, §§ 58–61, where the applicant, who is of Roma origin, felt offended by certain passages of the book “The Gypsies of Turkey”, which focused on the Roma community; and Király and Dömötör v. Hungary, § 43, which concerned anti-Roma demonstrations not involving violence but rather verbal intimidation and threats).
The Court also held the principle of negative stereotyping applicable when it came to the defamation of former Mauthausen prisoners, who, as survivors of the Holocaust, could be seen as constituting a (heterogeneous) social group (Lewit v. Austria, § 46)”. §199: “The relevant factors for deciding whether that level has been reached include, but are not necessarily limited to: (a) the characteristics of the group (for instance its size, its degree of homogeneity, its particular vulnerability or history of stigmatization, and its position vis-à-vis society as a whole); (b) the precise content of the negative statements regarding the group (in particular, the degree to which they could convey a negative stereotype about the group as a whole, and the specific content of that stereotype); and © the form and context in which the statements were made, their reach (which may depend on where and how they have been made), the position and status of their author, and the extent to which they could be considered to have affected a core aspect of the group’s identity and dignity. It cannot be said that one of those factors invariably takes precedence: it is the interplay of all of them that leads to the ultimate conclusion on whether the “certain level” required under Aksu v. Turkey [GC], 2012, § 58, and the “threshold of severity” required under Denisov v. Ukraine [GC] (§§ 112–14) has been reached, and on whether Article 8 is thus applicable.
The overall context of each case — in particular the social and political climate prevalent at the time when the statements were made — may also be an important consideration (Budinova and Chaprazov v. Bulgaria, 2021, § 63 ; Behar and Gutman v. Bulgaria, 2012, § 67)”.
See also A. Timmer: “The problem with negative stereotyping is that it interferes with the individual’s capacity to determine her own identity and life-course — stereotyping is a way of putting people in a box. Now, for the first time, the Court makes explicit that this is not acceptable under the right to private life”. A. Timmer, ‘Stereotypes of Roma: Aksu v. Turkey in the Grand Chamber’, Strasbourg Observers Blog, 20 March 2012. https://strasbourgobservers.com/2012/03/20/stereotypes-of-roma-aksu-v-turkey-in-the-grand-chamber/
iv Among others: Judgment of the European Court of Human Rights, in the case of Beizaras and Levickas v. Lithuania, number 41288/15, 14 January 2020, §117:
“The Court finds it clear that comments on the first applicant’s Facebook page (see paragraph 10 above) affected the applicants’ psychological well-being and dignity, thus falling within the sphere of their private life. Indeed, the Government acknowledged that those comments had been deplorable for being “offensive and vulgar” (see paragraph 70 above). The fact that human dignity as a constitutional value must be protected by the State has also recently been emphasized by the Constitutional Court (see paragraph 35 above). That being so, and finding that the attacks on the applicants had attained the level of seriousness required for Article 8 to come into play, the Court holds that the facts of the case fall within the scope of Article 8 of the Convention”.
v “It is for the respondent Government to demonstrate that the interference was a legitimate aim”.
European Court of Human Rights: Guide on Article 8 of the Convention — Right to respect for private and family life, 2022, §22.
vi ‘SAS v France’, European Court of Human Rights, Grand Chamber,. Application No 43835/11, 1 July 2014: “The Court’s practice is to be quite succinct when it verifies the existence of a legitimate aim within the meaning of the second paragraphs of Articles 8 to 11 of the Convention”. This case (concerning a French ban on face-covering clothing in public places) is notable because a number of judges in their accompanying opinions dissented from the Court’s conclusion that there was a legitimate aim.
vii See, among others: Letter from Minister Grapperhaus of Justice and Security on overrepresentation in crime figures and motion by member Van der Staaij (SGP), 3 May 2021, House of Representatives, session year 2020–2021, 35570, no. 31.
viii Letter from Minister Koolmees of Social Affairs and Employment on the way in which Dutch government organisations publish crime figures and migration backgrounds, to Stichting Ocan. 28 April 2021: 20210428_Reaction_three_ministers_to_letter_Ocan.SMN.IOT_20190408_1.pdf
ix ECRI, Third report on the Netherlands, adopted on 29 June 2007, p.31–32.
x “In an early and leading Article 8 case, the Court clarified that “necessary” in this context does not have the flexibility of such expressions as “useful”, “reasonable”, or “desirable” but implies the existence of a “pressing social need” for the interference in question. It is for national authorities to make the initial assessment of the pressing social need in each case; accordingly, a margin of appreciation is left to them. However, their decision remains subject to review by the Court. A restriction on a Convention right cannot be regarded as “necessary in a democratic society” — two hallmarks of which are tolerance and broadmindedness — unless, among other things, it is proportionate to the legitimate aim expected”. European Court of Human Rights: Guide on Article 8 of the Convention — Right to respect for private and family life, 2022, §§29.
xi European Court of Human Rights: Guide on Article 8 of the Convention — Right to respect for private and family life, 2022, §§29–30.
See also: MM Groothuis, Scientific commentary on Article 10 of the Constitution — Respect for and protection of privacy.
xii It therefore depends on the situation which circumstances should be taken into account. The circumstances of the case influence both the assessment of whether the interference reaches a sufficiently serious level for the application of Article 8 and the assessment of the balance within the meaning of paragraph 2. In her article, E. Várnagy lists a number of circumstances that the ECtHR takes into account, based on the ECtHR judgment ‘Budinova and Chaprazov v Bulgaria’:
“a) the characteristics of the group, including for instance its vulnerability and history of stigmatization
b) the content of the statement, in particular the degree of the negative stereotypes it conveys
c) the form and context of the statement, including the position of their author and their capacity to affect the core aspect of the group’s identity and dignity
d) the overall prevailing social and political climate at the time of the statements”.
E. Várnagy, ‘Guest Post: Budinova and Chaprazov v Bulgaria — A guide to public statements degrading minorities’, 17 March 2021. https://www.echrblog.com/2021/03/guest-post-budinova-and-chaprazov-v.html
See also: Judgment of the European Court of Human Rights, in the case of Budinova and Chaprazov v. Bulgaria, number 12567/13, 16 February 2021, §63.
xiii Judgment of the European Court of Human Rights, in the case of Budinova and Chaprazov v. Bulgaria, number 12567/13, 16 February 2021, §63.
xiv A survey among police officers in East Brabant provides an indication of such beliefs. The survey showed that a significant number of them were in favor of using statistical data on ‘origin’ when considering whether to carry out a check. Lamers, Matthijs, ‘Ethnic Profiling, National Police Unit East Brabant’, July 1, 2015:
“a clear majority of respondents consider the use of statistical data on ethnic backgrounds to be permissible when considering whether to carry out an inspection. 79 percent of respondents consider the use of statistical knowledge to be justified. 44 percent of respondents consider an inspection based on ethnicity to be permissible if ethnic background is overrepresented in the statistics kept on criminal offenders” (based on a survey with 308 respondents).
For an analysis of the cases in which the use of risk profiles results in discrimination, see: College for Human Rights, ‘Discrimination by risk profiles. A human rights assessment framework’, 2021, p. 26-27.
xv An annex at the bottom of this letter contains a list of relevant human rights standards and recommendations.
xvi For example, in ‘Established, but not at home’ the SCP shows itself to be aware of harmful effects: “We are not deaf to the criticism of the possible stigmatizing nature of some results, but this stigmatization cannot be completely prevented. There is a backlog on certain indicators and there are cultural differences, measured here by value orientations.” Dagevos, J., M. de Voogd-Hamelink, R. Damen (2022). Settled, but not at home. First findings from the Survey integration migrants. SCP.
xvii Question from Member Deen (PVV) to the Minister of the Interior and Kingdom Relations, during a Committee debate on ‘Racism and Discrimination’, on 16 April 2024: “A third question to the Minister is whether we are clear about the fundamental underlying ethnic, cultural, religious and ideological backgrounds, what the background of the perpetrators is and who, in a broad sense, the instigators of anti-Semitism are”. House of Representatives, session year 2023–2024, 30 950, no. 411 Questions from Member Van Zanten (BBB) to the State Secretary for Education, Culture and Science about the report “‘Elephant in the room’ remains unmentioned in debate on declining acceptance of homosexuals” (submitted on 3 October 2024): “In 2022, a report in Amsterdam indicated that young men with a non-Western background in particular discriminate against homosexuals; can the new national study by the Social and Cultural Planning Office specifically focus on acceptance of homosexuals among people with a non-Western background?”