One of the largest groups of cases that arrive to our office is made of discrimination cases in the field of public services. During the course of the so-called entertainment discrimination the owner or manager of a restaurant or disco thinks that he can admit and serve only the people who are sympathetic to him. In the background of this mentality lies the only seemingly rational business consideration that business will decrease if romas start to visit the place too often. Of course they are aware that it is not acceptable for them to tell the guests wanting to party that due to their roma origin they are unwanted, instead they refer to them not being regular guests, or that there is an exclusive party going on, or – one of the favourites – the lack of club membership. The surprised, or rather humiliated roma guest usually does not even start to argue, so much that, in certain settlements everybody knows and respects the places where romas can go to party and where they can not.
When representing cases like these before the Equal Treatment Act entered into force we were always in a difficult position, as we had to prove, that behind the refusal of entry or service stood a racist motive. This was an almost impossible task and we could only successfully push those cases through where we could prove the discriminative practice with a well-planned and executed testing procedure. As we have already stated in several of our previous publications[1], with this testing method even hidden discrimination can be uncovered extremely well. We apply this method when our roma plaintiff receives different treatment than persons of non-roma origin with similar characteristics based presumably on his origin. The main point of the procedure is to send two testers with the same goal, same questions, same requests to the entertainment unit or workplace that has been complained about. One of the testers is a member of the plaintiff’s minority group, while the other one is not a member of the minority group but has the same relevant characteristics as the first tester.
The testers arrive separately to the institution of public service to be tested. First, the roma tester tries to enter the bar, disco, restaurant, then a little later the non-roma tester. It is important that the non-roma tester should see and hear the interaction between the employees of the entertainment unit and the roma tester. Irrespective of whether the roma tester has been admitted or not, the non-roma tester enters the entertainment unit and acts as a guest there. Directly after the testing the testers both fill out a questionnaire. The two questionnaires are then compared, and the differences found within are proof of discrimination. Naturally, we plan the testing situation to consider the conditions of the given case, the admission practice of the entertainment unit.
Returning to the time before the Equal Treatment Act entered into force, two opportunities were available for the persons who considered themselves wronged: the initiation of a civil lawsuit due to the violation of inherent rights, or turning to the competent consumer protection inspectorate. If we started a civil action on behalf of the plaintiff, the greatest difficulty was posed by the aforementioned burden of proof. However, if during the course of the lawsuit we managed to convince the court – usually with the testimonies of our testers – the respondent was obliged to pay the plaintiff non-pecuniary compensation, or, if our plea contained the so, the respondent had to apologise in some form.
Our first successfully completed case was the famous Góman case[2]. It is worthwhile to give this case a short briefing because – taking the applicable values of its time into account – the court has never ruled such an exceptional amount of compensation in a discrimination related case in the filed of public service since then. In September 1995, our roma client entered a pub for a coffee and a coke to pass the time while his wife was at the hairdressers. Better said, he wanted to pass the time there but the bartender told him that no roma can eat, drink or have fun in his pub. When the roma guest asked for the book of complaints, the bartender refused to give it to him.
On behalf of our plaintiff we initiated an infringement procedure due to libel and have notified the local mayor’s office that the book of complaints has been held back. Besides these we have also initiated a civil lawsuit based on the violation of our client’s inherent rights. The mayor’s office was the first to respond to our notification: they fined the bartender for 2.000 forints for withholding the book of complaints. With respect to discrimination based on ethnical grounds, the authorities came to an extremely interesting conclusion. In a letter they informed the plaintiff of the following: “Unfortunately there are no sanctions for the entrepreneur refusing service due to the lack of legal regulations.” We can already sense the difficulties caused by the lack of a comprehensive, unambiguous anti-discriminatory regulation. Another factor that should also have been taken into consideration and deliberated by the competent authority is the following: how lawful is the operation of an entertainment unit, where despite of the constitutional prohibitions, do not serve the guest and he is called a “gipsy”. The prohibition of such name-calling was already stipulated in the Constitution back then. The decision of the authorities was followed by the decisions of the local and county courts. On first instance, the respondent was obliged to pay 5.000 HUF, and on appeal level he was obliged to pay another 10 thousand HUF. The decision made in the inherent rights case was the most severe: the court ordered the respondent to pay 150 thousand HUF compensation for non-pecuniary damages. It also obliged the respondent to apologise in the form of a paid advertisement – in this case – in the Népszabadság newspaper for insulting the roma man because of his origins. As already mentioned, if we consider the appropriate values at the time and add the price of the paid advertisement to the 150 thousand HUF compensation, we can say that it stands as an unprecedented verdict even today.
After the so-called Góman case, our office has represented several other public service discrimination cases in courts with comparative success. [3] It was an interesting experience for us that while some courts accept the results of our testing as clinching evidence, others did not. If the court did not accept the testing as the procedure of disclosing and proving discrimination, it also did not entertain our pleas in its later verdicts.
In cases such as these there is also another forum for legal redresses, namely, the procedure of the consumer protection inspectorate. This procedure differs from litigation basically because it has to be faster – as the regulations of state administrations ruled the procedure[4] – and on the other hand from this forum we could only expect the respondent to be ordered to pay a fine without being able to demand compensation. According to the still effective Law on Domestic Trade no costumer should receive undue preferential or discriminatory treatment. [5] It is our point of view that the legal regulations pertaining to the competence of consumer protection inspectorates have been fairly clear. Pursuant to the Law on Consumer Protection, within the framework of their market-supervising activities, the inspectorates oversee that the regulations and public rules regarding the sale of goods and services are adhered to; can investigate issues concerning consumers; can impose consumer protection fines, and finally deal with the quality contestations and complaints of the consumers. Despite these in almost all our cases that we have tried to bring in front of the inspectorates we were met by refusal and incompetence. In some cases the authorities tried to “shake us off” by saying that they have ex officio already referred the case to the minority ombudsman[6]. In another case, the worker at the inspectorate, instead of investigating our claim, tried to convince us to tell our roma client to apply for a club membership instead of “bickering” with the manager of the disco. We could not make the inspectorate understand that it is illegal to refer to a club membership in a place open to the whole public. Thus it was wishful thinking that they would be sensitive enough to realise that the referral to the necessity a membership is only the cover of discrimination based on ethnical grounds. The useless battles fought with consumer protection inspectorates drove us to involve the minority ombudsman and put pressure on the General Inspectorate for Consumer Protection. As a result of this, the Legal Department of Consumer Protection Inspectorate issued a methodological circular in November 2002, with the title: “Dealing with notification of discrimination against minorities”. In this, it calls the attention of the regional inspectorates to the fact that they are obliged to investigate all such claims, and also recommends that the inspectorates should expose the potential discriminative practice by test-shopping (i.e. testing).
Following the professionally correct circular, we did not experience any significant change in the attitude of the inspectorates, and so unless our client insisted upon it, we chose the lengthy judicial procedure. In the past year there has only been one case in which the consumer protection authority handled our claim with sufficient prudence and thoroughness, when they had to disclose and sanction the discriminative practice of a pension in a large city. In this case, the inspectorate condemned the owner and obliged him to pay a consumer protection fine of 100 thousand HUF.[7] Let’s go back to the Góman-case and do a bit of comparing. The court decision in 1996 stated a compensation of 150 thousand HUF, while in this case, the owner of the pension had to pay 100 thousand HUF, even though it was proved that he had indeed discriminated several people. We believe that despite the low amount of fine the procedure and decision of the inspectorate can be seen as a positive step forward because of two reasons. The resolution of the authority was almost exclusively based on the results of testing carried out by us; furthermore, they conducted the procedure without us having to fight for it.
[1] For more detailed information about testing please see White Paper 1998, new methods: White Paper 1999, case study B. Lajos.
[2] White Paper 1995, Gypsies are not served on principle, p 20.
[3] www.neki.hu (publications - public services).
[4] Pursuant to Article 15 section 1 of the Law on the General Rules of Public Administration Procedures the substantial decision has to be made within 30 days after the arrival of the petition. According to section (5) this can be prolonged by another 30 days in justified cases.
[5] Law No. I. of 1978. on domestic trade, Article 25 section (2)
[6] Anybody may apply to the Parliamentary Commissioner for the Rights of National and Ethnic Minorities if in his judgment he suffered injury in consequence of the proceedings of any authority or organ performing public service, or its decision (measure) taken in the course of the proceedings and/or of the omission of the measure of the authority in connection with his constitutional rights, or if a direct danger thereof exists, provided that he has exhausted the available possibilities of administrative legal remedies or that no legal remedy is ensured for him. (Law no. LIX of 1993)
[7] In our case the owner of the pension in a large city sent away first the roma colleagues of the Government Office for Equal Opportunities, then our roma testers by telling them that there were no vacancies. It later turned out that in both cases the pension had several vacant rooms at the given time. For more detail see White Paper 2004, Pension in Debrecen