Summary of a public debate on the topic of: (Un)-safe work: From precarious work to forced crime.
Marie Jelínková [1]
In the first part of the debate, the invited panellists had the floor, in the second part, there was room for discussion. Given the fact that most of the questions were closely connected to the individual contributions, this recording is organized in such a way that individual answers are included in the contributions of the respective panellists. The debate opened with the theme of precarious work, looking into its definition and prosecution, and it ended with the topic of forced crime.
In her contribution, Klára Skřivánková of Anti-Slavery International (United Kingdom) emphasized that in reality, there is no solid line between forced labor and labor exploitation. The wide range of situations which fall within the scope of a violation of labor laws and labor exploitation, but which also rank among forced labor – and which are encountered in real life situations – is best viewed as a continuum. At one end of the continuum, there is the ideal of a decent job where an individual can negotiate working conditions, has control over the situation and is protected by law. At the other end of the continuum, one finds forced labor – a kind of modern-day slavery – where an individual works under threats of punishment and under conditions which are beyond their control and are very harsh. Between these two extremes, there are different situations, which, to varying degrees, show certain elements of exploitation: for example, we can take such cases when an individual does not receive minimum wage or is not being paid for overtime work, but also the cases of trafficking in human beings and exploitation.
According to Klára Skřivánková, it is important to be aware of the fact that the situation in the field of labor exploitation may change over time. This can be illustrated by the case of a migrant who came to the Czech Republic to perform legal work and had a work visa tied to a specific employer. His working conditions were decent and he received the required minimum wage. Following the expiration of his visa, however, the employer was not willing to help him with its extension. It is such situations which often create conditions for exploitation. An employee ceases to receive the salary, is not able to further negotiate working conditions and the employer is threatening to notify the authorities. Perceiving labor exploitation as a continuum is important exactly for grasping such a situation.
Even extreme situations of forced labor or trafficking in human beings are often hard to be substantiated with evidence as such; and with less prominent forms of labor exploitation it is usually even more difficult. Thanks to the concept of a continuum, it is of course possible to identify certain cases of law violation, and, consequently, (under the criminal code or the labor code) determine the culprit. The current practice, however, most of the time does not proceed in such a way. Another point was that labor exploitation falls within the remit of both labor and criminal law, since these are two distinct areas which can provide remedy. Within the framework of the above-mentioned continuum, it is also possible to identify another violation of the law (i.e. a violation other than the offense of trafficking in human beings etc.) and start to prosecute the offender for a different criminal offense.
In many countries, for example, it constitutes a criminal offense to be in possession of an identity card or passport of another person. In situations of forced labor, workers are often unwilling to cooperate with the authorities, but if the authorities find out that the worker's passport is in the possession of another person, this gives a reason for prosecution for criminal activity. The same holds for situations where there is harassment, verbal or physical assaults involved. As a result, it is then possible to provide remedy or to a certain degree to put an end to exploitation through the use of another criminal offense than the one occurring in a situation which is confusing and difficult to be proven. Towards the end of her contribution, Klára Skřivánková addressed forced crime, which often represents another type of forced labor. International organizations define forced labor as an activity and in a figurative sense also as the conditions under which labor is performed. In terms of international law, forced crime can therefore be described as forced labor and Klára Skřivánková stresses that it indeed should be understood as such.
Eva Holá, a lawyer from the Organization for Aid to Refugees (OPU), with a long history of its presence in the Pilsen region, focused on the most pressing problems in the area of the work of foreign staff. She comes across this in practice in her everyday life and discussed whether it is possible (either from the perspective of practice or theory) to find a somehow satisfactory solution to the cases of precarious work of foreign workers in the Czech Republic. The OPU is most often contacted by workers in low-skilled positions, i.e. by such workers who belong to the most vulnerable category. They belong to different nationalities, however, they are mostly third country nationals and most often find employment through an intermediary. For this reason, the legal provisions for employee - employer relations are often missing. At the same time, many of them face the same problems as Czech employees do, such as an employer's refusal to provide vacation leave, lacking reimbursement for overtime work, or even the non-payment of wages. However, Czech workers and foreigners with permanent residency are more independent, and they are often able to tackle these difficult situations themselves or seek help.
Eva Holá identified as another major problem the fact that there is lack of free legal counselling to both foreign and Czech employees. For example, in cases of non-payment of wages for three previous months, most workers cannot afford to pay for legal services from their own resources. According to Eva Holá, the bottom line is that legal counselling should be significantly more accessible.
Zdeněk Málek from the General Directorate of Customs presented the competencies of the customs administration. In the field of foreigner agenda, it mostly monitors whether employers fulfill all legal obligations concerning the employment of foreigners. The customs administration checks the employees from both third as well as EU countries. Concerning staff members from third countries, it looks into whether they have been granted permits to work and whether they work in appropriate job positions and adequate employment relationships. In the case of EU citizens, the customs administration controls only whether employers possess employment authorization.
Following the discovery of illegal employment by the customs administration, the customs administration assembles all supporting documents and other essentials and forwards the case to the labor inspectorate. It is the inspectorate which then conducts the administrative proceedings. Sanctions for the illegal employment of third country nationals range from the minimum amount of 250 thousand Czech crowns, which is beyond the reach of many companies. Following the imposition of a sanction by the labor inspectorate, the case is forwarded again to the customs administration, which is in charge of enforcing the fines. In view of the growing aggressiveness of the controlled employers or workers, Zdeněk Málek sees it as an advantage of the monitoring performed by the customs administration that the controls are carried out by customs officers in uniforms and wearing weapons. On the other hand, despite various amendments to the law on employment, Mr. Málek perceives certain gaps in the legislation which restrict the control activities of the customs administration. Another problem felt as such by the customs administration is that of the distrust of foreigners towards state authorities, and their unwillingness to cooperate with the customs administration. The presentation can be found here and in an attachment to this article.
Šárka Möstlová from the Security Policy Department of the Ministry of the Interior gave insight into the remit of her Department, within which fall all major problems related to the internal security of non-military character: extremism, the fight against corruption, terrorism, organized crime and the issue of the fight against trafficking in human beings. Regarding human trafficking for labor exploitation and labor exploitation without trafficking, Šárka Möstlová sees the biggest problem as distinguishing whether an act is considered to be already trafficking in human beings, or "only" the violation of labor legislation. Another problem is the nature of individual criminal activities. New ways of treating people are emerging that have crossed the line of what is legal – and that are difficult to detect. The perpetrators are sometimes interconnected, and very often, the situation is very complex e.g. because of labor agencies and/or chains of various subcontractors.
In connection with forced crime as well as labor exploitation, Šárka Möstlová considered it important to mention also the victim and his or her perception of the situation. In criminal proceedings, the testimony of the damaged party is absolutely crucial. When a person is encountered who does not feel damaged, even if s/he may be a victim of trafficking in human beings, it is usually very problematic to secure evidence of the criminal action. At the same time, such cases are not uncommon. The last issue which belongs among the more serious ones that Šárka Möstlová sees is the transposition of these problems into legislation [2], since the implementation of individual terms that relate to human trafficking for forced labor and labor exploitation into practice is often difficult and unclear. Her presentation can be found here and in an attachment to this article.
Vicky Brotherton of Anti-Slavery International presented research conducted within the project RACE in Europe, which deals with trafficking in human beings, criminal exploitation and forced begging. The research [3] takes into account the situation in the field of forced crime in the UK, the Netherlands, Ireland, the Czech Republic, Bulgaria, and Romania, and briefly covers some other European countries also.
For the Czech Republic, the research is based on the findings of the Multicultural Center Prague and La Strada. There are no official statistics and no monitoring available in this area of the Czech Republic. The results of the research show that in the period of 2011–2012, there was a 20% increase in the number of marijuana grow rooms. This market is dominated by Vietnamese gangs, and 283 Vietnamese were detained for drug crimes in this time. This is consistent with the findings from other European countries, where the Vietnamese are often not only the organizers, but also victims of forced labor in grow rooms. In many cases they are not even allowed to go out, they suffer physical attacks or they have debts which they are forced to repay by their work (e.g. to pay off their transportation to Europe). The results of the research suggest that the United Kingdom, Ireland and the Czech Republic are linked in this respect - the people who work in grow rooms in Great Britain were often transferred through the CR or were previously subject to exploitation in the Czech Republic.
Official statistics on victims of forced crime in the Czech Republic are not available, but some well-known cases suggest that there are cases of forced crime to be found in the Czech Republic. For example, in June 2012, there appeared on the media the case of a Vietnamese man who had been walled in in a grow room. He became victim of a criminal offense, but he was, nevertheless, convicted and imprisoned for growing marijuana. Other indicators of forced crime could be observed in the cases of persons in illegal cigarette factories or in the manufacturing of meth (pervitin). Vicky Brotherton stated that such cases cast doubt on the manner in which the victims of trafficking in human beings are treated in the area of law enforcement.
Specific areas are the cases of forced begging and petty theft (especially in children). Compared with other EU countries, the Czech Republic has considerable room left to go when it comes to the recognition of this type of exploitation. This is different e.g. in the Netherlands and in the UK where official statistics see criminal exploitation as a distinct type of trafficking in human beings (see more here). Specifically in connection with Great Britain, frequent cases of pickpocketing, fraud connected to the abuse of various benefits, growing of marijuana and forced begging were mentioned.
On a more general level, Vicky Brotherton has identified as the key problem the prosecution of the victims of a forced crime and the search for a perpetrator. This occurs despite the fact that, for example, according to Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings, victims who were forced to commit a criminal offense may not be prosecuted or punished for the crime. In the UK, within the above-mentioned research, the cases of Vietnamese citizens who were imprisoned for marijuana cultivation were re-examined and in 235 reviewed cases, a strong suspicion of trafficking in human beings arose. Even in the analyzed judgments it transpired that the judges stated that they were cases of exploitation, but they came to the conclusion that the victims had to be punished because of having grown marijuana.
As one of the key outputs of the research, Vicky Brotherton has thus identified the need for training on various indicators of trafficking in human beings and exploitation. National legislations should, therefore, fully transpose the international impunity clause to protect the victims.
The last panellist, Jakub Frydrych of the National Drug Headquarters of the Criminal Police and Investigation, focused on the ambience of Vietnamese criminal groups in the Czech Republic, which are often significantly more violent than one would realize. As an essential feature, he highlighted certain significant cultural differences between the Czech and Vietnamese society (e.g. the importance of community over the value of an individual). Similarly, it is typical for this group, according to the experience of Jakub Frydrych, that the law and its enforcement are perceived differently.
According to the statistics of the National Drug Headquarters, the Czech Republic has indeed seen a marked increase in the number of marijuana grow rooms in recent years. This and other negative trends have emerged also thanks to the Czech immigration policy, which enabled tens of thousands of Vietnamese to come to the Czech Republic. Many of these Vietnamese (as well as other foreigners) were not, in particular after the onset of the economic crisis and the change in the Czech immigration policy, able to find a job and/or maintain their legal status. This situation led to the emergence of a large group of Vietnamese who needed work and income, and who thus became an easy target for criminal gangs. Details on this subject, including up-to-date charts and statistics on the involvement of ethnically conditioned criminal groups in drug-related crimes in the Czech Republic, can be found in the presentation here , and in an attachment to this article.
The overall impression following these extremely interesting contributions, however, was rather unsettling. On one hand, there are a number of problems which we can identify or which we gradually learn to do so. On the other hand, their successful combat often needs not only a change of legislation, but also a change of practice on many different levels. In contrast to the exploiters and to criminal structures which are able to respond very quickly to newly emerging situations, gaps in the laws etc., any change on the side of the authorities comes only with significant delay. Maybe, at this moment, all this makes the cases in which various aspects of labor exploitation are prosecuted or in which forced crime victims are at least partially recovered, even more encouraging.
[1]With contributions of the OPU volunteers whom we would like to thank.
[2]For example, what we understand such terms as "forced labor", "particularly exploitative conditions" etc. to mean /editorial note/
[3]Which will be officially published during the first half of the year 2014.
PhDr. Marie Jelínková Ph.D., works as a researcher at the Center for Social and Economic Strategies of the Faculty of Social Sciences in Prague and externally lectures on international migration at the same faculty. In her research she focuses on the issues of migration and integration of people with migration background, she has focused in detail on the situation of persons without a residence permit, access of migrants to health care or labor exploitation. She defended her dissertation thesis on the issue of Mongol migration to the Czech Republic. She studied at FSV UK and at the University of Queensland. In the past, she has also worked as editor of the migraceonline.cz portal.