The Monkey That Does Not See

23 July 2004

Lilla Farkas¹

Between the right to the protection of sensitive data, such as one's ethnic origin, the right not to be discriminated against, and the right of ethnic minorities to the use of their language, culture and to political representation, every democratic state needs to strike a fair balance. The balance in today's Hungary, it is submitted, is far from being fair, and as such is not acceptable. If equality is to mean that equals are treated equally, whereas un-equals are treated unequally, then it is imperative to know who needs equal treatment and who needs unequal treatment. To know a person for who he is, we need to see him as such in practice and in law alike. Our task may be hampered by having visible as opposed to non-visible minorities.

If a person is Romani and claims this is his/her ethnicity, we need to see him/her as such. If a person does not identify as Romani but says he/she is perceived as such, then we need to see him/her as Romani. If a person claims to be Romani but is not perceived as such, then we need to see him/her as Romani. We might wonder, however, why the latter person claims to be Romani – especially if by doing so he can have access to additional rights, without suffering the disadvantages characteristic of the situation of Roma. In Hungary, for instance, citizens regardless of their ethnic origin, can vote for minority self-government candidates. The wife of the mayor of Jászladány – a village notorious for segregating Roma primary school children from non-Roma – can hold an elected office in the local Roma minority selfgovernment. Likewise, non-Romani parents can claim that they are Romani in order to conceal racial segregation.² Similarly, in court proceedings non-Romani employees testify to be Roma in order to found claims of ethnic discrimination. The play with minority origin does not only occur in relation to Roma. At present, the National Armenian Minority Self-Government has among its members a former MP – previously not known for his Armenian background.

These categories of persons exist in practice. A truly colour-blind state and its servants – be they policemen, judges, teachers – can never claim otherwise. If this is the case, a truly colour-blind legal regime must accommodate the rights and interests of all these persons. Failing to do so, the state and its law will be no more than monkeys which do not see. Hungarian law at present allows for the handling of data on racial and ethnic origin only with the consent of the person concerned.³ This severely impedes the prospect of litigation against discrimination, simply in establishing the plaintiff's ethnic origin, which is required under domestic law, but more particularly in proving indirect discrimination or institutional racism.⁴ Furthermore, it gives rise to what is commonly known as "ethno-business" or "ethno-corruption", especially in relation to participation in minority elections and election of minority self-governments. Finally, it diminishes the hope to devise or implement positive action programmes.

The situation is so desperate that now even theformer Hungarian data protection commissioner is arguing for a reform that would reconcile the right to the protection of sensitive data with the policy need to generate accurate ethnic data. The same authority also recommends an official mechanism to control that only those eligible by virtue of their ethnic origin can have access to positive action measures and minority self-government offices.⁵ As researchers have argued for a decade, discrimination in fact is based not on self-identification, but on perception.⁶ And the collection of anonymous data relating to one's perceived ethnic origin for research purposes is not explicitly prohibited.⁷ This is not contrary to the Hungarian Act on the Rights of National and Ethnic Minorities (Minorities Act) either, for the latter covers only those Hungarian citizens who affiliate with a national or ethnic minority for the specific purpose of having access to their (additional) minority rights (use of their mother tongue, right to cultivate their culture and to minority representation).⁸ The Minorities Act's material scope does not extend to, for example, scientific research, whereas the Data Protection Act's may. Furthermore, the Minorities Act has no argument to offer against arrest warrants crammed with references to the suspect's ethnic origin, but the Data Protection Act may.

Indeed, at present the majority does vindicate the right to say who is Romani. Despite the lack of official data, when confronted by researchers, heads of prisons provide estimates about the number of Roma inmates. The Hungarian Helsinki Committee's research into discrimination against Roma defendants in the criminal justice system was based on perceived ethnic origin. As researchers explained, they cared little about discrimination based on self-identification. Their focus was on discrimination stemming from the perception of policemen, prosecutors and judges of the defendant's ethnicity.⁹

In Hungary, as well as in many of the 'new' Member States of the European Union, arguments based on community law have proved the most effective in the field of anti-discrimination. Thus, an analysis from a community law perspective seems the most fruitful here. The Race Equality Directive¹⁰ (RED) provides clear definitions for key concepts but fails to define racial and ethnic origin for its own purposes. Given that at present there is no definition in community law, practicing lawyers shall turn to domestic, regional and international law for assistance on this matter.

In Hungary, for instance, national and ethnic minorities are specifically protected under the Minorities Act. This Act recognises 13 minorities, among them the most sizeable ones, i.e. Roma and Germans.¹¹ It does not, however, define the term ethnic or national minority. As a result of political negotiations, Jews and Chinese¹² are not included among national and ethnic minorities for the purposes of this Act, which, however, will not prevent them from being covered by the RED and general domestic antidiscrimination legislation.

Notwithstanding domestic concepts, international treaties ratified and pronounced by EU Member States, such as the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and regional instruments, for instance the Framework Convention for the Protection of National Minorities (FCNM), do have a bearing on every day practice. It must certainly be borne in mind that whereas ICERD has been widely ratified, this is not the case for the Framework Convention. Greece and France, for example, have not ratified it.

Article 1 ICERD takes 'racial discrimination' to mean "any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life". ICERD's personal scope is thus extremely wide, going much further than one would expect when hearing the word 'race'.

As point 12 of the Explanatory Memorandum to the FCNM explains "[i]t should also be pointed out that the Framework Convention contains no definition of the notion of 'national minority'. It was decided to adopt a pragmatic approach, based on the recognition that at this stage, it is impossible to arrive at a definition capable of mustering general support of all Council of Europe member States." This, it is suggested, does not narrow the definition provided in ICERD. It shall also be borne in mind that the European Court of Justice, when ruling on fundamental rights, considers the common constitutional heritage of Member States. Taking into account the number of ratifications from Member States, it would be difficult to argue that ICERD does not form part of this common heritage.

If there were clear definitions, whether or not a certain plaintiff belongs to a racial minority could still be disputed in court. As has transpired during the training of judges in Hungary, two distinct categories shall be considered when ruling on these matters. First and foremost, one's self-identification with a certain ethnic or national minority is not equal to his/her perceived belonging to such minorities. If these two categories were identical, then there could be no difference – as presently there is – between the number of those identifying themselves as Roma in the national census and those identified as Roma for the purpose of sociological studies dealing with the nature and extent of discrimination against Roma.

Perceived ethnic origin and self-identity are rather different notions, the former being an objective category, and the latter a subjective one. Neither can be established with indisputable certainty, as there will always be, for example, Roma who bear fewer visible signs of their ethnicity than the common stereotyped view of who is a "Gypsy". By the same token, persons identified by the majority as being Roma may deny affiliation with this ethnic group on account of having lost cultural and language links with the group. What can be said with utmost certainty is that this axiom works not only for clearly visible minorities but also for less visible ones, such as Germans, Jews, etc. Curiously, when penalising violence against a member of an ethnic group, Hungarian criminal law recognises the difference between self-identification and perceived ethnic origin and attaches the same criminal liability to violence committed on either ground¹³. As Hungarian judges seem to understand now, a plaintiff who does not profess himself in court as belonging to the Romani minority, can at the same time claim that he was discriminated on the ground of his perceived ethnic origin. It is in fact the perception of Romani ethnicity and not self-identification that establishes the ground of discrimination.

The fact that data protection laws may – as in Hungary¹⁴ – prohibit the handling of sensitive data, such as ethnic origin, without the concerned person's explicit permission, shall under no circumstances be taken to mean that data on the perceived ethnic origin of individuals cannot be handled. The issue of ethnic data collection is far from being limited to Hungary. With the notable exceptions of the UK and the Netherlands, in half of Council of Europe member states – specifically those with large Romani populations – national constitutions prohibit the collection of ethnic data¹⁵. In Hungary, the prohibition depicts a struggle with a racist past, where ethnic data were abused and misused to formulate anti-Romani, among other, policies. It is against this background that minority organisations oppose the compulsory gathering of ethnic data.

As Goldston argues¹⁶, public interest lawyers are handicapped without ethnic data, as the "very notion of indirect discrimination implies a need for data". Recital 15 RED, however, suggests that data do not have to come in the form of statistics¹⁷. This is important, because even though in Hungary, on the national level, the existence of such statistics is denied, ethnic data is collected by many institutions – for the purposes of administering minority scholarships, for example.

It is submitted that EU Member States will have to reconsider existing domestic regulations in the light of the Directive on the protection of individuals with regard to the processing of personal data and on the free movement of such data, under which the processing of personal data, would still be permissible where it "relates to data which are … necessary for the establishment, exercise or defence of legal claims"¹⁸. Certainly, an argument for the need of ethnic data at national level and state liability for the failure of its provision could be advanced on the basis of this provision taken in conjunction with Recital 15 and Article 2(b) RED¹⁹. Given that positive action programmes were implemented as allowed by Article 5 RED, the need for ethnic data would be even stronger. In the fields of both sex and race discrimination, specific attention is paid to means on the basis of which indirect discrimination can be established. Commentators emphasise that these means are far from being reduced to using statistics. At present, viewing statistics as the main proof of indirect discrimination would indeed be counter-productive in race discrimination cases because of the widespread absence of such data. This, however, shall be rectified if strategies successfully employed in the field of sex discrimination are to be transferred to race discrimination.

It is to be noted that Article 8b(4) of the Revised Equal Treatment Directive²⁰ calls on Member States to encourage the provision of information on equal treatment for men and women and that this information may include employer-level statistics. Regrettably, a similar solution has not found its way into the RED. However, domestic lawyers should not shy away from drawing analogies between sex and race discrimination legislation in this regard.

Endnotes:

1. Lilla Farkas is a private attorney affiliated with the Budapest-based Hungarian Helsinki Committee and the Legal Defence Bureau for National and Ethnic Minorities (NEKI). She holds an LLM degree from the University of London, King’s College. She hereby gives her written consent to the handling of data relating to her affiliation with these organisations.
2. For a detailed case description, see Roma Rights 2003/1-2, pp. 107-108. In the summer of 2003 the Budapest-based non-governmental organisation Roma Press Center conducted fact-finding in relation to the alleged segregation of Roma in the school of Jászladány revealing that at one point non-Romani parents signed a petition in which they too claimed to be Romani.
3. Articles 2(2) and 3(2) of Act No. 63 of 1992 on the protection of personal data and the publicity of public data (Data Protection Act).
4. Under Article 19(1) b, of Act No. 125 of 2003 on equal treatment and the promotion of equal opportunities the plaintiff must establish his ethnic origin in order for the burden of proof to be reversed.
5. See Majtényi, László. A kisebbségek közjogi testületei, az identitás nyilvántarthatósága és a privacy fogalma (Minority bodies under public law, the registration of identity and the notion of privacy), pp. 1-3, March 2004, kézirat, unpublished paper.
6. Two major camps fight in social sciences, those in favour of self-identity, such as János Ladányi and those in favour of perception, such as Gábor Havas, István Kemény and Gábor Kertesi.
7. Indeed, the Data Protection Act defines sensitive data as that relating to racial origin, national and ethnic minority affiliation – not perceived racial origin etc., see also footnote 3.
8. Article 1 of Act No. 77 of 1993 on the rights of national and ethnic minorities.
9. See Lilla Farkas, Gábor Kézdi, Sándor Loss and Zsolt Zádori. “A rendõrség etnikai profilalkotásának mai gyakorlata”. (The current police practice of ethnic profiling). In Belügyi Szemle (Interior Affairs Review), 2004/2-3, p. 33.
10. Directive 2000/43 EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. Official Journal of the European Communities 2000, L 180/22.
11. Section 61.
12. The Jewish community refused to be included among the minority groups for the purposes of the Minorities Act, while in the case of the Chanese community, the request for the inclusion of the latter made by the Chinese Embassy was rejected by the Hungarian authorities.
13. Article 174/B of Act 4 of 1978 on the criminal code.
14. Articles 2(2) and 3(2) of Act No. 63 of 1992 on the protection of personal data and the publicity of public data.
15. Roma and Statistics: Strasbourg, 22-23 May 2000, (2000), Council of Europe, Paragraph 41.
16. James A. Goldston. “Race and Ethnic Data: A Missing Resource in the Fight against Discrimination”. In Ethnic Monitoring and Data Protection: The European Context. CPS Books, Central European University Press–INDOK. Andrea Krizsán (ed.), 2001, pp. 19-41.
17. “The appreciation of the facts from which it may be inferred that there has been direct or indirect discrimination is a matter for national judicial or other competent bodies, in accordance with rules of national law or practice. Such rules may provide in particular for indirect discrimination to be established by any means including on the basis of statistical evidence.”
18. Article 2 of Council Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. Official Journal of the European Communities of 23 November 1995 No L. 281 p. 31.
19. Article 2(b) of the Race Equality Directive states: “Indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”
20. Article 8b(4) states: “To this end, employers should be encouraged to provide at appropriate regular intervals employees and/or their representatives with appropriate information on equal treatment for men and women in the undertaking. Such information may include statistics on proportions of men and women at different levels of the organisation and possible measures to improve the situation in cooperation with employees’ representatives.” See Directive 2002/73/EC of the European Parliament and of the Council of September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. Official Journal L 269 , 05/10/2002 P. 0015-0020.