On the forced labour and the forced criminality in migrants: An interview with Klára Skřivánková of Anti-Slavery International

Marie Jelínková: In Anti-Slavery International, which is in co-operation with, among others, several Czech NGOs, you are currently dealing with the so-called “forced criminality” in migrants. What does this term cover?

Klára Skřivánková: This term can be applied to a number of situations. In principle, we distinguish between two kinds of forced crime. The first one is street crime, in which children or adults are forced to carry out activities such as petty theft or what the police qualifies as shoulder surfing / ATM distraction theft, for example by distracting your attention when entering your PIN (e.g. a child forced to do so) and then reading the data from the card with an installed camera. The second area where we encounter forced criminality by way of forced labour is in marijuana grow rooms or even in meth labs.

In all of these cases one observes that people are forced to do the work activity they perform in a similar way – in the country of origin, they are often hired when they are under financial distress or in need of escape from the country. They are offered jobs abroad, which they later cannot leave: either due to physical barriers or because of the existence of debt, violence, or various threats. In case of children who beg or commit any other type of crime, the whole situation is even more complicated, because they are forced to perform criminal activities either by parents or real or fictitious uncles and aunts. In addition, making a child do something for an adult is in general a much easier thing.

To sum up, trafficking in human beings for forced crime takes place exactly in the same way as trafficking in human beings in order to make them carry out any forced activity. The only difference is that when you force someone to carry out an illegal activity, it often brings with it the result that the victim finds himself or herself in the viewfinder of the police. Because of that, it is far more complicated to identify these people as victims of crime.

MJ: Let us stop for a moment and speak about how to prove that force or enforcement has been involved. For instance, as far as the grow rooms are concerned, how can one tell the difference between partaking in a voluntary or partly voluntary activity and when on the contrary the victims did not have any other option?

KS: It is a good question. Sometimes, the situation is very confusing. There are two kinds of indicators suggesting that a person had been forced to carry out a certain activity. The first are subjective ones – they relate to the person in question and can be obtained only by interviewing or querying that person. This is of course problematic, because these people often do not know the local language and refuse to communicate, often because they had been told or trained to do so by the real offender.

Very often the victims do not consider themselves as such, or rather, they perceive themselves as victims only when an extreme situation, such as assault, injury or sexual abuse, takes place. The important thing is to talk with the respective person about the situation s/he was in, how s/he got there and what is his/her view of it. The knowledge of the culture involved plays an essential role, since very often means of enforcement are culturally bound. For example, the Vietnamese have an extremely well-developed sense for the repayment of debt, and for them it is usually absolutely unacceptable not to repay the sum owed.

The victims may also have a legitimate feeling that they are better off than they had been before – having a roof over their head and something to eat. This fact of course cannot legitimize a criminal offense.

The second ones are called objective indicators – this means especially: What does the workplace itself suggest. Our Czech partner organization La Strada recently described a case of a Vietnamese who has been basically walled in in a grow room in the Czech Republic. Of course the perpetrators can give very good reasons, both to the victims and to the criminal investigations authorities, why this was so, often citing the necessity of protection, worker safety, etc. And often the explanation is believed even by the victim. In the UK, we frequently encounter the fact that the grow places make minor boys work for them, while they do not speak the local language, lack proper education and sometimes are diagnosed with various learning difficulties. Therefore, it is absurd to assume that these boys would play a larger role in the whole process of the functioning of the grow room or grow house, including the smooth operation of the order and supply process.

If we, therefore, encounter such cases where the person has no way of affecting his or her own situation (s/he cannot leave the place of work and does not know where s/he is, ... ) and their personal characteristics are such that it is highly unlikely for this person to be in charge of running the grow place, then it is appropriate to ask how did the person get there, why is s/he there, and what are the conditions like. Very often we proceed to find out that the person is in debt slavery and his or her family is being threatened in the country of origin if s/he should not continue to work, etc. We have encountered cases where people had previously been exploited in prostitution and forced labour in a grow room was offered to them as a way out of forced prostitution.

However, taken from the viewpoint of the police or law enforcement authorities following the entry to a grow room or grow house, it is very difficult to assess whether they are witnessing forced crime or not. In particular, if the authorities do not have any idea about forced labour and human trafficking issues, they may feel the situation is clear: They found someone committing a crime. In the UK, and it is possible that it is rather similar in the Czech Republic, drug control  policy has a high priority. In the case of detecting a grow place, it is therefore the easiest to punish the offenders detained on the spot, and besides that – the statistics will reflect on this positively. If the police were to go deeper and ask questions as to whether or not the person in front of them is a victim, the investigation that follows would have to be much longer, more complicated and also more expensive.

MJ: So, how do these cases tend to be detected?

KS: The cases of grow rooms or grow houses (even though we should not be talking only about grow places, since these are very specific) tend to be detected either proactively – that is on the basis of targeted police actions – or reactively, with the police first receiving some information and then identifying the potential grow house (for example, when it passes over the potential grow place with a helicopter with thermovision and thus identifies the very likely location of the grow place). Street crime is often more visible and local inhabitants and tourists often make it the subject of their complaints. Most of the time the street theft groups operate in city centers, means of transportation and in the vicinity of frequent tourist destinations. All this makes such crimes easier to disclose, yet there remains the very same problem of identifying whether the activity is organized crime or whether it is organized crime with elements of trafficking in human beings, in which case the people involved and committing the criminal actions are potential victims.

MJ: What does the methodology look like of controls or actions that should reveal that the people found are victims of forced crime and not the offenders?

KS: In Great Britain, the issue of forced crime is mentioned from time to time, yet not in a systematic way and certainly not as a part of the methodology of police drug control units. As a result, the police present on the spot do not expect to encounter the criminal offense of forced labour or trafficking in human beings and these cases only come up ex-post. Most of the time such a revelation happens as late as when a person is already being prosecuted and the State’s Public Defender or the Prosecuting Attorney draw attention to the fact that in the present case, indicators of forced labour or trafficking in human beings are met. Following that, they may try to stop the prosecution. This, though, often does not take place. The identification of the fact that the person is a victim of trafficking in human beings can occur even later. With some foreigners seeking asylum, the legal representatives looking into their requests discover that they might have been victims of trafficking in human beings, as their story suggests.

MJ: Many cases of forced crime take place unnoticed, however do you get the impression, given the number of cases uncovered, that this issue is on the rise? Or has it been in progress for years, and is only now receiving more attention?

KS: To a certain extent, we are able to say that there is an increase of activity related to forced crime. It can also be seen in the trends shown in various criminal offenses. We have evidence from the UK police that in the last three years, there has been a substantial increase in the number of grow places, thereby increasing the number of potential victims of trafficking in human beings, most often coming from Vietnam. Under a project addressing forced crime, we have conducted an analysis of national and local media in the last two years and have found that at least one hundred cases could be related to trafficking in human beings. The cases have often been described in the media, and frequently the verdict has been mentioned, for example in one of the verdicts the judge gave reasons for a low sentence based on the fact that the young man had in fact been the slave of an organized group. However, this man was sentenced nevertheless, and he was not identified as a victim of trafficking in human beings. Together with our partners we continue to monitor the media and almost every day we come across another case. The range is quite overwhelming.

MJ: Let us return to the issue of forced crime in children. Are the UK law enforcement authorities more receptive towards them?

KS: Speaking of these cases, there is a huge difference between forced and street crime. Street crime is most often committed by young children, under the age of ten or around that age, and the authorities usually have a pretty good attitude toward them. Yet whom you find in the grow places are mostly teenagers (often around 16 years of age or young people between 18 and 26 years), and the approach of the law enforcement authorities to this group is problematic. In the United Kingdom, the age of criminal responsibility is set to twelve years. This means that even though these people need to be treated like children, they are held for criminally responsible if they are over 12. Furthermore, in many cases, their rights are not being upheld in the court of law – for example the right to have a so-called responsible adult present in the court, etc. The authorities also often dispute the age of the children who are about 14 – 16 years old and show a tendency to treat them as if they were older. The cognitive tests and physical examinations used may in many cases be misleading, since children with a migration experience or who have lived on the street often seem to be older and wiser. It is not uncommon that they had come to the UK using false documents giving an adult age and yet they are still children.

MJ: Speaking about forced crime and given the probably rather high number of borderline cases, how does one determine what falls within forced crime and what does not?

KS: Yes, there is quite a great deal of borderline cases. It is important to understand the situation as well as possible and to know that the situation of people (victims) changes over time. At the beginning, their situation may be better and then, following the visa expiration, people become more vulnerable and exploitation worsens. Often, they also try to change their situation, but it is not always possible to do so. As for the Vietnamese in the UK, many of them had already arrived illegally: in the trunk of a car, on a truck trailer, using false documents, etc. What is interesting is that, in many cases of trafficking in human beings in the United Kingdom, the Czech Republic plays a role – either the respective Vietnamese had come to the EU via the Czech Republic, or they had resided there for some time and were exploited, and then they came to Britain. Very often they only receive a phone number to call when in the UK.

The crucial factor is the exploitation of someone's precarious position – that fact that the respective person cannot speak the language and is in debt. But now we have better legislation in place in which even forced labour itself is defined as an offense. Therefore, if the situation of forced labour has been proven, we do not have to prove trafficking in human beings any more.

MJ: What is the basis on which  Great Britain enacted forced labour as a specific criminal offense? It is relatively unique in the EU, isn't it?

KS: We have also found cases of forced labour not linked to trafficking in human beings. These cases most often concerned the exploitation of domestic workers. Police investigation was disputed as to what type of offense is to be applied to these cases. Of course it was possible to punish the restriction of freedom, etc., yet mostly those were not adequately serious crimes. In addition, Britain had signed the International Forced Labour Convention[1], but has never transposed it to its law system. Together with another organization, we started to draw attention to this situation and we were able to put through a specific section in the law, which defines forced labour as criminal offense, in line with the above-mentioned Convention.

The United Kingdom, unlike the Czech Republic, does not have a Penal Code: criminal offenses are mentioned in individual laws. This one can be found in the law named Coroners and Justice Act of 2009. It came into effect in 2010 and already in that year, 15 criminal prosecutions were initiated. In 2013 we have had the first 6 sentenced cases. Great Britain will not remain alone in defining forced labour as a specific criminal offense for much longer. In April 2013, the Irish government announced that it will also enact forced labour as a criminal offense in Ireland. This announcement followed the activities of Migrant Rights Centre Ireland, whom we helped with the issue.

MJ: We talked about how difficult it is to identify forced labour – what is its definition based on in the British law?

KS: In the bespoken act of the law, forced labour is not identified in great detail, however, in the implementing regulations to this law and the relevant circulars, examples and indicators formulated by the International Labour Organization are given. This can be slightly problematic, since when proving these indicators in front of a court of law, one still needs to convince the Judge that the case in question as a whole addresses the issue of forced labour. The Judge may or may not take these indicators of forced labour into account as sufficient proof of that. What can also be of help is the recent analysis of the British Court of Appeals, which dealt with individual concepts and situations relating to forced labour. The analysis focused on what is slavery, serfdom and forced labour, and to a certain extent it sets the worst form of labour exploitation as forced labour, servitude. Following that is serfdom, where the link between work place and work performance needs to be proven; often this is the case of domestic work. When speaking of slavery, there needs to be proof that the individual was treated as if s/he was property or a possession ("power of ownership" needs to be proven). This analysis may be of great help in court proceedings, but it is necessary for legal representatives to be aware of its existence.

MJ: In what way are British cases of forced labour usually detected? Do institutions resembling the Czech labour inspectorates play a larger role in that?

KS: There are several ways that lead to uncovering these cases. In Great Britain, we have a number of institutions in charge of monitoring the adherence to work legislation. These might be compared to Czech labour inspectorates, yet their capacities are severely limited. The probability of an on-site visit is extremely low; an inspection comes circa once in 17 years. There is another organization, The Gangmasters Licensing Authority (GLA), which covers several areas – mostly the agricultural and processing industry, the latter especially with respect to the fishing industry. This organization regulates and licenses companies which operate as job agencies. All agencies that work as middlemen, providing workforce for these sectors, need to be licensed by the GLA. Besides that, the GLA has the option of proactively carrying out inspections or reacting to announcements or reports. It is the GLA that frequently uncovers forced labour, but as it is not authorized for investigation, cooperation with the police is necessary. The police also gather information and sometimes they carry out actions on their own. However, given the capacities, these are basically reactive and not proactive actions.

I have to say that in the last two years, the number of uncovered (not necessarily investigated) cases of forced labour in Great Britain has risen. At the moment, the percentage of uncovered victims of trafficking in human beings for the purpose of forced labour is larger than that of sexually exploited persons. It is not surprising, since even in the past we had known that there must be many more such cases as there are also many more possibilities and areas for exploitation – not only those limited to exploitation for sexual purposes. The amount of creativity applied to exploitation is immense and often comes in a combination of things: the exploited person is forced to perform a certain activity (in women, forced labour often goes hand in hand with forced prostitution), and besides that the person in question is regularly forced to open a bank account (then controlled by the perpetrator) and to use this account for borrowing money, or to misuse and/or give the perpetrator child support money, etc.

MJ: Does the European Union address the issue of forced crime?

KS: The EU was the first international institution to draw attention to the fact that trafficking in human beings for the purpose of forced crime is taking place. Furthermore, it was the first international institution to note that the Member States usually fail to recognize this way of trafficking in human beings. Following that, the EU changed its definition of trafficking in human beings which is reflected in the new Directive on preventing and combating trafficking in human beings[2]. In the new definition of trafficking in human beings, you can find an enumeration of various cases as well as purposes people can be exploited for. The enumeration also contains forced crime (exploitation for criminal activities) and begging. Of course, all that is important.

Let us hope that the European Commission will ask the Member States to provide information on implementing this Directive and on the strategies adopted, and that the EU will be interested in forced crime too. It can be added that the EU has criticized the Member States for the fact that only 6 states out of 27 have fully transposed the Directive. One of the six that have fully transposed the Directive is the Czech Republic – let us hope for a positive change in practice too.

Translation: Olga Richterová

The text was written as a part of the project “Foreign workers in the Labour Market“, which is carried out by the Association for Integration and Migration (SIMI) in cooperation with the Organization for Aid to Refugees (OPU) and Multicultural center Prague. International partners of the project are Caritasverband für die Diezöse Osnabrück from Germany and Anti - Slavery International from Great Britain.