Testing in Europe

The testing was accepted in numerous countries of Europe as a method of proving discrimination. In the Netherlands the testing[1] was admitted as satisfactory evidence in civil and criminal matters as well.[2] The first cases before Dutch courts were about the hindering of immigrants from entering cafeterias, bars and discotheques. The method was used for the first time by the neighbourhood-countries of the Netherlands also in discrimination cases in the catering industry.

In the Netherlands besides the courts the Equal Treatment Commission (CGB)[3] also confirmed that the testing is acceptable as a method of proving discrimination.[4]

The Anti-Discrimination Agency of Enchede (ADA) applied testing in some entertainment facilities and discovered that the members of an ethnic minority – including the matched pairs - were not allowed to enter, while the Dutch had no problem with gaining access. The CGB set forth in one of its decisions: “According to the opinion of the Commission, the testing is a proper means, depending on the circumstances, of proving unequal treatment.”

In the ninties the method was put in use in other European countries too. In Hungary, the workers of NEKI turned to the testing for the first time in 1999, when they wanted to prove that Roma people were not admitted to a pub in the village of Patvarc, Nógrád County. In the civil procedure that was initiated in this case, the court found the testing admissible as a technique corroborating the fact of discrimination. The testers were interrogated as witnesses and the court accepted the result of the testing as evidence corroborating the complaint of the two Roma Plaintiffs on discrimination in the catering industry.[5]

The testing was used in the Czech Republic[6] and in Serbia and Montenegro[7] too. The Supreme Court of the Czech Republic declared the testing admissible in a case where a group of Roma people was not admitted to an entertainment facility. The court awarded an amount equal to approximately 3000 USD to the Plaintiffs as a compensation of the injuries suffered owing to discrimination and the employer of the defendant was obliged to pay this amount.

In Serbia and Montenegro in another case three local organizations decided to start testing, after having received many complaints of Roma people stating that they were not allowed to enter the swimming-pool for a long time on a regular basis. A group consisting of three Roma and three non-Roma persons dressed similarly visited the ticket office of the sports centre in order to buy tickets. The non-Roma testers had no problem entering the building, but when the Roma testers tried to buy tickets, they were told that they were not allowed to enter, because they are Roma people. When the non-Roma testers asked for explanation, they got the answer that even if the ticket office attendant had let the Roma persons inside, the security guard would have expelled all of them. By virtue of the petition submitted to the court against the owners of the facility, in its judgement the court obliged the company running the swimming-pool to discontinue its discriminatory practice and demanded that the perpetrator make restitution in a statement in the main daily papers. This was the first Yugoslavian judgement which made it clear that racial discrimination means an infringement of human rights and accepted the testing of public facilities as a proper tool of verifying abusive practices.[8]

In a French case the Penal Council of the Cour de Cassation (Court of Cassation) admitted in its decision of 11 June, 2002[9] that the testing might be admissible as evidence by reason of the basic criminal law principle of the freedom of evidence. Consequently, it left to the courts to decide whether they accept the testing as evidence in the given case.

The RADAR agency of Rotterdam, the Netherlands started working in 1983 and it operates on the territory of the Province of Rijmond. The organization works in favour of every minority in the Netheralnds, especially in the field of labour, catering industry and housing. Its main activities are advising and legal representation. Besides, it carries out researches, a good example of which is its survey on education and the labour-market. It strives to raise awareness in the members of the society by means of campaigns and human rights education. The costs necessary for functioning are covered by the municipality. In the years of 2004 and 2005 the RADAR organized a competition together with a testing named “Club Stars”. The twenty-nine youngsters belonging to different ethnic groups visited five entertainment facilities selected in advance, where they spent some hours and then ranked the discotheques from one to ten pursuant to specific aspects. The press also paid attention to the competition, which meant a serious urge for the clubs concerning equal treatment. A particular web page was maintained for the campaign for the sake of greater publicity and transparency and fifty percent of the scores consisted of the votes registered via the internet. The five clubs were chosen upon the nomination of twenty-six Rotterdam-based entertainment facilities.

The testing was already used as a method of research in Europe as well. The most significant survey on discrimination in the labour-market was the comparative research of the ILO (International Labour Organization), carried out in four European countries – Belgium, Germany, the Netherlands and Spain – in 1996 (Discrimination, 2000) in the course of which the method of testing was utilized.