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Seminar with national specialised bodies to combat racism and racial discrimination on the issue of ethnic data collection

17-18 February 2005
Strasbourg, Human Rights Building
Salle de la Direction

EXPLANATORY NOTE

Introduction

National specialised bodies to combat racism and racial discrimination (specialised bodies) are strategic partners for ECRI in the fight against racism, xenophobia, antisemitism and intolerance. Following ECRI’s first Seminar with national specialised bodies in November 2003, which dealt with the question of how to best implement legislation for combating racism and racial discrimination, there was a call for a follow-up event which should focus on concrete cases and specific problems. As a result, ECRI decided to organise a follow-up Seminar with national specialised bodies on 17 and 18 February 2005, which will focus on to the issue of ethnic data collection.

National and international bodies involved in the fight against racism and racial discrimination, including ECRI, consider that the collection of data broken down by categories such as nationality, national or ethnic origin, language and religion (ethnic data collection) is essential for shaping sound policies against racism and racial discrimination and promoting equal opportunities. Without data which is as accurate as possible on the situation of the groups of persons to which these policies are aimed, policy-makers can only develop policy in an indirect way and thus run the risk of overlooking the importance or the urgency of problems. At the same time, also data on the actual implementation of national legislation to combat racism and racial discrimination can provide very valuable information on the situation of victims of racism and racial discrimination in a given country. Such data also allows national specialised bodies to develop and suggest policy responses for fighting racism and racial discrimination in a more effective way.

The aim of the Seminar is therefore to provide national specialised bodies with a forum for comparing different national practices in order to identify good practices in the field of ethnic data collection. Special emphasis will be placed on the practical use of data broken down by categories such as nationality, national or ethnic origin, language and religion for the adoption of positive measures and on the establishment of indirect discrimination in complaint procedures. Other important issues that will be explored at the Seminar will be the role of specialised bodies in monitoring the implementation of legal provisions and other measures aimed at combating racism and racial discrimination, as well as the monitoring of racist incidents.

Participants
This Seminar will bring together representatives of national specialised bodies to combat racism and racial discrimination, representatives of general human rights institutions (Ombudsman, Human Rights Commissioner, etc.) whose mandate already covers or will be extended in order to cover racism and racial discrimination. Special emphasis has been placed on inviting participants from Member States which already have some experience on the issue of ethnic data collection or in which this issue will have some direct relevance for the near future. Moreover, representatives of international governmental and non-governmental organisations with whom ECRI is closely cooperating on the issue of ethnic data collection will participate in the Seminar.
All attendees will be expected to actively participate in discussions by commenting on interventions, providing examples of the situation in their own country and asking questions on how certain problems are dealt with in other countries.

Programme and structure of the Seminar

The Seminar will take place over one and a half day. The first day will be spent on the clarification of the concept of ethnic data collection and the legal and political framework of a first set of such data that is data broken down by categories such as nationality, national or ethnic origin, language and religion, which may be collected in specific areas of policy and may be used, for instance, for the adoption of positive measures and for the establishment of indirect discrimination in complaints procedures. The second day of the seminar will deal with the monitoring of the implementation of national legislation aimed at combating racism and racial discrimination and the monitoring of racist incidents.

1st Day

Day 1 will start with a clarification of the concept of ethnic data collection and an explanation as to the reasons why ECRI considers that the collection of data broken down by categories such as nationality, national or ethnic origin, language and religion (ethnic data collection) is important for successfully combating racism, xenophobia, antisemitism and intolerance.

Main issues

Although it is often recognised that ethnic data is useful, many European countries are still very reluctant to collect such data. This is sometimes due to a lack of understanding of the type of data to be collected, of the guarantees that should govern the collection of this type of data and, more generally, to a fear of the risks of misuse. The aim of the first session of this Seminar will therefore be to give an overview of the different types/sources of ethnic data collection, to address the main concerns related to this issue and to identify certain principles that must be respected when this kind of data is collected.

Different types/sources of ethnic data collection

In the framework of its country monitoring work and its General Policy Recommendations, ECRI has identified the following different sets of data:

1. base line data broken down by categories such as nationality, national or ethnic origin, language and religion, providing information on the actual size of vulnerable groups and which may be collected in specific areas of policy (e.g. education, employment, housing, access to services).

2. data on the implementation of legal provisions and other measures aimed at combating racism and racial discrimination, including the monitoring of their effectiveness by developing and maintaining systems for recording racist offences and incidences.

3. data collected in the framework of surveys on the perception of discrimination by victims of discrimination, and by the majority population.

This data may be obtained from a wide range of different sources, including censuses and socio-economic statistics conducted by national statistical bodies, administrative files (school, police, health service, social assistance), court statistics (number of complaints, decisions rendered, etc.), record-keeping by Ombudsmen, national specialised bodes and specialised NGOs, employee registers held by companies, victim and attitude surveys and scientific investigations.

A combination of these different data sources can help in providing a picture of the situation of vulnerable groups in a given country that is as accurate as possible. However, it must be clear from the outset that the collection of this sometimes highly sensitive data must be governed by a certain number of principles which would prevent its potential abuse.

Principles governing ethnic data collection

Both national and international data protection norms set the legal framework in which the collection of data broken down by nationality, national or ethnic origin, language and religion is to be conducted. The principles governing the collection of this kind of data vary according to the type of data collected - notably whether the data concerns racial or ethnic origin and religion or other grounds, and whether the data is personal or statistical. Although data broken down, for instance, by nationality (meaning citizenship of a country) or, in many cases by language, does not seem to pose major problems, the collection of data broken down by national or ethnic origin and religion is much more controversial. Equally, the collection of personal data, i.e. information relating to an identified or identifiable person is also more difficult than the collection of statistical data that does not identify a particular person. However, it is interesting to note that, for example, for the purpose of proving discrimination generally, only collective and anonymous data which can show patterns and practices is required. Individualised, identifiable information safeguarded by most data protection norms1 is not necessary.
The principles governing ethnic data collection, as also reflected in ECRI’s recommendations in this area, usually include:

1. the principle of legality (the collection of data must be authorised by national law);
2. the principle of voluntary self-identification;
3. the principle of confidentiality;
4. and the principle of informed consent.

Ethnic data collection in the Member States – legal and political framework

National practice concerning the collection of data broken down by categories such as nationality, national or ethnic origin, language and religion varies widely across Council of Europe Member States. Some countries collect data on all of the above-mentioned categories. Other countries only collect data on some of them.

The most persistent and erroneous view in many European countries is that their legislative framework does not allow the collection of data broken down by categories such as nationality, national or ethnic origin, language or religion. Although a comprehensive picture of all relevant legislation in all Member States of the Council of Europe is not available, experience has shown that in most countries, national legislation does not formally prohibit the collection of this type of data, but only restricts it and makes it conditional on the respect of certain safeguards.

One of the aims of the second session of the Seminar will therefore be to identify possible political and legal barriers against the collection of ethnic data and to discuss how they can be/ have been overcome in practice.

Questions:

Ethnic data collection in specific areas of policy

Ethnic data collection is essential for shaping sound policies against racism and racial discrimination and for promoting equal opportunities as it can reveal the needs and interests which will then form the basis for social policies and later help in evaluating their progress. Having reliable information on the number, concentration, socio-economic situation or specific needs of a minority group can considerably influence policy-making and assist, for example, in setting targets for employment or locating public services (education, health, social benefits etc.).

Countries which collect this type of information in specific areas of policy have usually developed relatively complex anti-discrimination schemes which are complemented by more or less elaborate monitoring systems. Session 3 will take a closer look at the situation in two Council of Europe Member States where this kind of data, which is collected in two key policy areas (education and employment), has had a significant impact on the formulation of more targeted policies in these fields.

Questions:

Ethnic data collection as a tool for positive action for national specialised bodies to combat racism and racial discrimination

In order to achieve substantive equality, it is sometimes necessary to adopt special measures (sometimes also referred to as “positive action”) for certain vulnerable groups in order to take into account past or current disadvantages or the fact that there is a lack of equal opportunities.

Both qualitative and quantitative data is necessary for the development and implementation of positive action schemes. To begin with, measures taken in the context of positive action should be based on a quantitative and qualitative analysis of the situation.

The positive action programmes usually consist of voluntary programmes involving quantified objectives aimed at a fair representation of protected groups although they sometimes even go so far as to establish access quota and preferential treatment for certain groups and to impose sanctions when quantitative objectives have not been reached.

National specialised bodies can have an important role both in the development, as well as the implementation and monitoring of positive action schemes which should ideally rely on reliable and accurate ethnic data.

Questions:

Ethnic data collection as a tool for establishing indirect discrimination

According to ECRI’s General Policy Recommendation No.7, indirect discrimination occurs “where an apparently neutral factor such as a provision, criterion or practice cannot be as easily complied with by, or disadvantages, persons belonging to a group designated by a ground such as race, colour, language, religion, nationality or national or ethnic origin, unless this factor has an objective and reasonable justification”.

The recognition of the concept of indirect discrimination lies at the very heart of every anti-discrimination scheme as it allows a genuine revision process of practices and procedures which, although apparently neutral, have a significantly negative impact on persons belonging to a protected group. However, the impartiality of practices and procedures is often very difficult to assess and statistical data is often the only way of showing the underlying picture. For example, by allowing statistical evidence in legal proceedings, courts can punish those who implement measures which disproportionately affect certain categories of persons who are protected from discrimination, whether or not this impact was foreseeable and whether or not it was calculated or intended. The use of statistical data which is broken down by categories such as nationality, national or ethnic origin, language or religion can therefore be extremely valuable in proving indirect discrimination before the courts and other complaint mechanisms.

Questions:

2nd Day

On Day 2, the issues of monitoring the implementation of national legislation in force aimed at combating racism and racial discrimination and the monitoring of racist incidents will be discussed.

Monitoring the implementation of national legislation to combat racism and racial discrimination

If a comprehensive legislative framework for combating racism and racial discrimination is put in place, data on the implementation of national legislation to combat racism and racial discrimination can provide very valuable information on the situation of victims of racism and racial discrimination in a given country. This kind of data can also be a good indicator of whether or not existing policies for fighting racism and promoting equal opportunities are having a positive effect.

In the framework of its country-by-country monitoring, ECRI consistently recommends that the following information be recorded: the number of complaints under criminal and civil law, details of any investigations carried out, prosecutions initiated and the outcomes of such complaints in terms of any decisions rendered and/or redress or compensation awarded. National specialised bodies can have an important role in collecting/analysing this kind of information/data.

Questions:

Monitoring racist incidents

In the framework of its country monitoring work and its General Policy Recommendations, ECRI regularly underlines the importance of monitoring racist incidents by developing and maintaining systems for recording incidents of racism, antisemitism, intolerance and discrimination. Such monitoring systems might be operated by national specialised bodies or by civil society institutions and other appropriate institutions, including the police and prosecuting authorities, which should set up and maintain systems for monitoring, classifying and recording racist incidents which are brought to their attention.

Very few Council of Europe Member States have a centralised monitoring system which ensures that racist incidents are reported and recorded in a consistent manner. In practice, information on racist incidents is collected by a variety of different players including NGOs, national specialised bodies, Ombudsmen, different Ministries, the courts and the police. There also seems to be no common understanding of what constitutes a racist incident and collected data/information includes different sorts of incidents of racist violence, intimidation, harassment and discrimination, which might or might not be followed up by concrete legal action. ECRI therefore strongly encourages the development of common standards in this field.

Questions:

Documentation


1 see for instance the safeguards provided by the Council of Europe Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data or the Council of the European Union Directive on the protection of individuals with regard to the processing of personal data and on the free movement of such data (95/46/EC).