Views from the Vice-president of the Netherlands Institute for Human Rights
Below, an excerpt of:
Loof, J.P., ’Toekomstige uitdagingen voor het gelijkebehandelings-recht’ (‘future challenges for equal treatment law’). Published in NTM|NJCM-Bulletin, 45 [2020], nr. 2, p. 251–277. English translation by Tom van Messel.
This excerpt concerns pages 274–275; the original excerpt in Dutch is available here.
Jan-Peter Loof is Vice-president of the Netherlands Institute for Human Rights (College voor de Rechten van de Mens) and assistant professor of constitutional and administrative law at the department of Constitutional and administrative law at Leiden University (including at the time of the publication of above-mentioned article).
“A different form of one-sided government practices giving rise to the risk of stigmatisation and exclusion is the way ‘transparency’ is being provided about the ethnic background of criminal offenders in the publication of crime statistics by government organisations such as Statistics Netherlands (CBS), the Netherlands Institute for Social Research (SCP) and the Research and Documentation Centre of the Ministry of Justice and Security (WODC).
In April 2019, various migrant NGO’s have urged the cabinet to change government communication about crime numbers and people’s countries of origin (1).
ECRI too has called on the Dutch government various times to change its practice, because the publishing of such country-of-origin categorisations gives rise to stigmatisation of all individuals originating from those countries (2). After all, with the publication of such numbers the image is easily created that the ethnic origin, or the culture of the country of origin, or religious beliefs carried along from the country of origin is the deciding factor for the criminal behaviour as exhibited (3). While in reality, this relationship is considerably less stronger or even impossible to determine because all kinds of variables contribute to explaining criminal behaviour (4). With this in mind, the arguments in favour of this ‘transparency’ are not at all convincing (5).
In case-law of the ECtHR it has been stated that the publication of information, also in a scientific context, that contains negative stereotypes of a certain group within the population, when reaching a certain level, can amount to a violation of the right to protection of one’s private life. This is the case when this negative stereotype harms a ‘group’s sense of identity and the feelings of self-worth and self-confidence of its members’ (6). Contributing — for years and years — to this image of ‘overrepresentation’ of certain groups in the crime statistics, by means of publishing crime numbers in this manner, could well be seen as an impacting the private life of members of these groups within the population. In my opinion, the dangers of exclusion or disadvantage of members of these groups within the population demand a very careful legal review with which the violation of the private life is weighed against the freedom of expression (7).
During the last few decades, a lot has been written about the pros and cons of this practice of publishing crime figures but I have not seen any detailed legal weighing exercise between the two fundamental rights that are at stake. Here lies a challenge for the Netherlands Institute for Human Rights to insist that this inadequacy will be reversed, because although this concerns matters that fall beyond the scope of ‘equal treatment legislation’, it nonetheless touches upon the core of the non-discrimination principle’s purpose.
Footnotes:
(1) ‘Minderhedenorganisaties roepen overheid op anders te communiceren over criminaliteit’ (‘Minority organisations call for change in government communicatie about crime’), www.republiekallochtonie.nl/blog/nieuws/minderhedenorganisaties-roepen-overheid-op- anders-te-communiceren-over-criminaliteit (lastly consulted on 21 March 2020).
(2) European Commission against Racism and Intolerance, Third report on the Netherlands, adopted 33 on 29 June 2007, p. 31–32; European Commission against Racism and Intolerance, Fourth report on the Netherlands, adopted on 20 June 2013, p. 50–51.
(3) Patrick Simon, “Ethnic” statistics and data protection in the Council of Europe countries: A Study Report, Strasbourg: Council of Europe 2007, p. 14: ‘the problem is less the possibility of identifying individuals, than the isolation of variables which characterise individuals or groups. Here misuse takes the form of stigmatisation, e.g, when stereotypes are confirmed by using findings reductively, or publishing tables without explaining them or analysing the factors which account for discrepancies. This is particularly true of statistics on crime, the prevalence of behaviour regarded as deviant or social problems treated more as burden on the community than as disadvantage for those directly concerned.
(4) R.V. Bijl, M. Blom, J. Oudhof & B.M.F. Bakker, Criminality, ethnicity and demographic developments’, Judicial explorations 2006, nr. 3, p. 55–74, conclude as an answer to the question ‘What predicts: ethnic origins or socio-economic characteristics?’: ‘The allochthonous population in the Netherlands is not only relatively young, but differs also in terms of various other demographic and socio-economic characteristics, compared with the autochthonous population. ‘Allochtonen’ — compared with ‘autochtonen’ — have relatively more often bigger-sized families, a lower education level, a bad position on the labour market, a low income and often live in deprived neighbourhoods (….). A discussion that often returns is whether the relatively high crime figures among groups of ‘allochtonen’ are attributable to characteristics relating to the ethnic origin or to unfavourable socio-economic circumstances. (…) The analyses point out that — taking into account relevant background characteristics — most allochthonous groups have a higher chance of being registered as a crime suspect than ‘autochtonen’. At the same time, it can be concluded that a considerable share of the differences that exist between ‘autochtonen’ and ‘allochtonen’ can be explained with differences in age and sex. On top of that, it turns out that another considerable share of the difference disappear when socio-economic characteristics are being taken into account.’
See also E. Butter, ‘Factsheet: What do we know about Dutch people with a migrant background and crime?’, www.republiekallochtonie.nl/nederlanders-met-een-migratieachtergrond-allochtonen-en-criminaliteit (lastly consulted 21 March 2020).
(5) Gwen van Eijk & Tom van Messel, ‘Zeven argumenten om criminaliteitscijfers uit te splitsen naar herkomst nader bekeken’, http://www.republiekallochtonie.nl/blog/achtergronden/zeven-argumenten-om-criminaliteitscijfers-uit-te-splitsen-naar-herkomst-nader- bekeken (lastly consulted on 21 March 2020).
(6) ECtHR 15 March 2012, 4149/04, consideration 58 (Aksu Turkije); ECtHR 17 januari 2017, 10851/13, consideration 41(Király and Dömötör/ Hongary).
See furthermore and more elaborately: Paul Quinn, Stigma, State Expressions and the Law: Implications of Freedom of Speech, Routledge 2019, chapter 6.
(7) The ECtHR case-law emphasises the importance of a careful weighing exercise between these two relevant rights, see for example ECtHR 8 December 2015, 51/06 (Caragea/Roemenië), EHRM 18 February 2014, 43912/10 (Jalba/ Roemenië), ECtHR 7 February 2012, 39954/08 (Axel Springer AG/Duitsland)”.
