4.1Russian Government Protection Measures and Gaps

Recent reforms indicate that the Russian authorities' have recognized the need to reform laws and policies related to migrant workers. The government has simplified procedures for workers to regularize their residency and employment in Russia and begun to develop additional legislation to regulate employment agencies. Some regional governments have responded to migrant workers' immediate needs for housing and other services upon arrival in Russia by developing migration centers which include subsidized housing.

As outlined in Russian Legal Obligations and Migration Policy above, Russia's human rights obligations require the government to take positive measures to protect migrant workers from abuse and exploitation. Effective, accessible mechanisms for timely redress for abuses are a crucial dimension of rights protection, yet have not received sufficient attention from the Russian authorities. Although a number of entities exist that at least formally should provide avenues for redress, including the Federal Work and Employment Service (Rostrud), the courts, the prosecutor's office, and the human rights Ombudspersons, none of these mechanisms has proven adequate to effectively investigate and ensure prosecution of violations, as described in detail in this chapter. 

As a key aspect of protection of the human rights of migrant workers, the Russian government should establish effective, accessible mechanisms to receive, investigate, and prosecute complaints of abuse by both private and state actors. Migrant workers' complaints should be investigated irrespective of their migration and contractual status.

Reforms in Migration Legislation

As described in detail above (see Laws Relating to Migrant Workers), the Russian government has undertaken a number of reforms to simplify the procedure for obtaining a residency registration and work permit to ensure that more migrant workers are regularized in Russia. The authorities have also increased fines for migrant workers and employers violating migration laws. These measures have had certain success in decreasing irregular migration in Russia. However, many obstacles to regularization remain, including the three-day rule for residency registration, the restrictive nature of the quota system, and the burdensome process of obtaining medical documentation as part of the work permit process, as described above.

Government-Sponsored Migration Centers

Some regional governments have identified the most pressing needs of many migrant workers to be readily available short-term housing, legalization of stay and work, and job placement. In response, a few regional governments have developed migration centers, which provide these services. Human Rights Watch visited the Sverdlovsk Oblast Migration Center in Ekaterinburg, which provides various services to migrants, including fee-based assistance to migrant workers in finding jobs, obtaining work permits, and finding housing. The Center has also renovated one building on a former military training site on the outskirts of Ekaterinburg into a 370-bed dormitory. The dormitory is designed to provide temporary housing for migrant workers for the initial period following their arrival in Ekaterinburg. However, as of this writing, the center was not functioning due to ongoing legal disputes over use of the site. The Sverdlovsk Oblast government also has plans to renovate other buildings on the site into 15 additional dorms, a gymnasium, a medical center and educational facilities. [256] Local governments in a few other Russian cities, including Moscow and Kazan, are proposing similar projects.

Human Rights Watch is concerned that this approach, at the very least, risks isolating migrant workers on the edge of the city rather than integrating them into the local community. This approach may also make migrant workers vulnerable by distancing them from services and resources other than those provided by the migration service itself, including employment contacts as well as non-governmental organizations.

The Council of Europe has called on governments to take measures to integrate migrants into local communities and reduce segregation in order to ensure their "democratic participation," which it notes can take many forms beyond political participation. Democratic participation can include also the exercise of rights such as freedom of expression, thought, conscience and religion; freedom of association, including membership of political parties or trade unions and participation in demonstrations; as well as participation in civil society, whether in migrant-dedicated associations or other associations with wider remits such as sports, arts, charity, philosophy or religion. [257] Authorities at all levels should take measures to ensure that initiatives to provide subsidized housing and other services for migrant workers provide for the integration of migrants and reduce segregation.

Regulation of Intermediaries

The perpetrators of many of the violations of migrants' rights described in this report, particularly of social and economic rights, were intermediaries. Russia has not done enough to regulate the actions of intermediaries, including private employment agencies, brigadiers, and other agencies involved in the recruitment and legalization of migrant workers. There are no laws regulating private employment agencies engaged in recruitment of workers from abroad. There is only a law regulating agencies engaged in the employment of Russian citizens seeking employment abroad. A law on regulation of private employment agencies providing services to foreign workers is currently being drafted and likely will be ready for public and parliamentary debate in the first half of 2009. [258]

The Russian government has also not taken sufficient steps to identify and punish intermediaries or employers responsible for issuing false documents to migrants. According to officials at the Embassy of Tajikistan, "Not a single intermediary has been punished for providing false documents [to migrants]." [259] Some government officials recognize the abusive role played by intermediaries, both Russian and from home countries. In an interview with Human Rights Watch, the deputy ombudsman of Krasnodar stated, "There are intermediary firms who regularly bring people here and then fail to provide them with the necessary documents. Then [the workers] are here suffering. These firms take money from people, bring them here, and then sell them. This is a complete disgrace." [260]

Inadequate and Inaccessible Government Complaint Mechanisms

Russia has a number of official agencies and mechanisms which could potentially redress abuses against migrant workers. The Federal Work and Employment Service, also known as Rostrud, is responsible for providing services and conducting oversight related to work and employment, including migrant labor and receives complaints from workers who believe their labor rights have been violated. The Russian prosecutor's office is responsible for protecting rights, including labor rights, guaranteed under the Russian constitution, and should investigate and prosecute violations. District courts receive complaints directly from workers.  Finally, the Russian Ombudsman and regional ombudspersons are charged with promoting and protecting human rights, including by receiving and acting on complaints of abuse.

However, for different reasons each of these mechanisms fails to serve as an adequate and effective mechanism for redress for migrant workers who have faced abuse.  The Russian government should take steps to improve and expand existing mechanisms and also consider the creation of additional mechanisms. In all cases, workers' complaints should be investigated irrespective of workers' migration or contractual status.  

Most migrant workers interviewed by Human Rights Watch stated that they did not file complaints about employer or police abuse. Very few migrants whom Human Rights Watch interviewed had knowledge of their legal rights vis-à-vis employers or the police or about mechanisms of redress for the abuses they had faced in Russia. Experts on migration in Russia confirm that migrant workers have low knowledge of their legal rights and are most likely to receive legal information from unreliable sources or from the very parties who are likely to abuse them, namely their employers, brigadiers or middlemen, and family, friends or acquaintances. Only five percent of migrants get information from any official agency, such as the Federal Migration Service. [261] Few migrant workers receive rights information from NGOs, and in most cases only when they have appealed to the organization for an abuse they have already suffered.

Migrant workers who had some knowledge of their rights or had considered making a complaint often feared approaching any kind of official agency because they feared fines or deportation as a result of their irregular status. As described above, migrant workers' irregular status is often the result of employers' failure to provide contracts. Others demonstrated little faith in a successful result of a complaint because of a low level of trust in a positive outcome and fear of discrimination.

The Russian government should inform migrants of the available mechanisms of redress through education campaigns at entry points to Russia and other locations, including in cooperation with employers, non-governmental organizations, and labor-sending countries' embassies. The government should also ensure that those various mechanisms effectively respond to workers' complaints as described in the next sections. 

Rostrud

The Federal Work and Employment Service, also known as Rostrud, is responsible for providing services and conducting oversight related to work and employment, including migrant labor, and falls under the supervision of the ministry for health and social development. The agency maintains offices in 82 provinces of Russia. Rostrud's department for oversight and control of employment law is responsible for enforcement of labor law through planned and spontaneous inspections and investigation of employment-related complaints. Rostrud is also responsible for informing and consulting employers and workers regarding employment law. [262]

According to the deputy director of Rostrud's oversight department, Tatiana Zhigastova, Rostrud receives about 120,000 complaints per year. Rostrud will receive complaints from any worker, regardless of citizenship, in person, by mail, or via the internet, and there is no statute of limitations for filing a complaint. However, Rostrud has the authority to conduct full investigations into complaints only when the existence of labor relations has not been contested, for example, if a written employment contract (in Russian, trudovoi dogovor) has been signed. The agency does not have the authority to investigate cases in which labor relations are disputed, as happens very often in cases when no contract or only an oral agreement exists between the parties. According to Zhigastova, "We don't work with witnesses, evidence. We work only with documents." In instances when a retainer contract (in Russian, grazhdansko-pravovoi dogovor, the typical legal document for services, contractual work, etc.) has been signed, Rostrud will also not investigate a worker's complaint because retainer contracts are not subject to Russian labor law. (In some instances employers sign these types of contracts with workers who are performing continual work in order to avoid the legal obligations created under an employment contract). Rostrud will also not investigate any complaints of cases which have already been decided by a court. [263]

In the absence of an employment contract, workers must appeal to a local court in order for the court to establish whether official labor relations de facto existed between the worker and employer. As described below courts themselves may be reluctant to establish employment relations in the absence of an employment contract. Furthermore, lawsuits are not a viable option for most migrant workers.  

The agency does not maintain statistics on whether complaints are received from citizens or non-citizens, but Zhigastova said that there have only ever been "a handful of complaints from foreign workers." [264] As indicated above, most migrant workers do not have legally-binding, if any, contracts at all. Furthermore, workers engaged as private contractors under law would only be capable of signing retainer contracts. With respect to employment of foreign workers, Zhigastova noted that there are "a lot of violations," such as employers signing a contract with a worker in one copy only and then destroying the contract.  However, she also told Human Rights Watch that workers from the CIS "often agree to work without employment contracts," and that this is "their fault," because it then makes it impossible for Rostrud "to protect them because there is not the necessary evidence." [265]

The Russian government should expand the authority of Rostrud to investigate fully complaints of any labor law violations, including wage violations, even in cases in which there is no written employment contract, and ensure adequate training and resources for Rostrud staff to conduct these investigations.

Courts

Workers have the right to appeal directly to district courts in cases of labor violations. A worker must apply within three months from the day that he or she "knew or should have known about the violation." [266] One labor lawyer whom Human Rights Watch interviewed stated that they generally are satisfied with the work of courts in cases of labor violations and that courts understand labor law and are interested in protecting workers. [267] However, the lawyer, with experience in cases involving Russian citizens' complaints of non-payment of wages, told Human Rights Watch that courts' general approach to these kinds of cases leaves workers vulnerable. The lawyer described cases in which workers had secured a legal employment contract, but were promised, or even for a time actually received, a higher salary than that indicated in the contract, according to an oral agreement with the employer. As noted above, employers often use this tactic to avoid paying taxes on the full salary. The lawyer noted that in such cases courts are very reluctant to review any evidence other than an employment contract as proof of salary. The lawyer also believed this situation might change only if more workers are willing to bring these cases forward and lawyers to use strategies to persuade judges to examine a more diverse body of evidence in these cases. [268]

The Russian government should also train judges to consider all cases of alleged violations of the rights of migrant workers, even when workers do not have employment contracts.

Only one migrant worker interviewed by Human Rights Watch, Faizullo F., one of several workers who were victims of forced labor, non-payment of wages, and other abuses in Orel in 2006, is pursuing a lawsuit against an employer. The victims from this well-publicized case are being assisted by the Russian NGO Civic Assistance.  For migrant workers who in most cases have no contracts and often experience wage violations, courts' approaches to these circumstances present a serious challenge. Also, migrant workers in most cases do not have the resources required to pursue a lawsuit during their time in Russia.

For workers who return to their home countries, the pursuit of a lawsuit in Russia is nearly impossible. Employment agencies also told Human Rights Watch that they do not see a lawsuit against an abusive employer in Russia as realistic. The director of one employment agency in Tajikistan stated that there have been instances when employers did not comply with the terms of the agreement signed with the agency, but the agency considered it impossible to sue the employer in a Russian court due to staff and resource limitations and a lack of confidence they would get a fair hearing. [269]

Prosecutor's Office

According to the Russian Law on the Procuracy, the prosecutor's office is charged with "protection of rights and freedoms," including labor rights, and other rights guaranteed by the Russian constitution.[270] The prosecutor's office should review and investigate complaints of abuse of human and citizens' rights, and prosecute administrative, civil, and criminal violations.[271] This report documents many labor rights violations, as well as criminal violations under the Russian criminal code.[272] The General Prosecutor's Office announced in July 2008 efforts to strengthen its work regarding labor violations with respect to migrant workers, noting that "employers, using the vulnerable position of migrants, blatantly violate existing labor laws and labor protection laws."[273] The prosecutor's office should also more proactively confront the long-standing impunity for police violence and extortion.[274]  Few migrants have filed complaints with the prosecutor's office, as indicated above, either because they were not aware of the possibility of doing so or feared that there would be no result or even negative outcomes that might worsen their situation.

Rostrud told Human Rights Watch that in 2007 it forwarded 14,482 cases of alleged violations of labor protection rules to the prosecutor's office. In 465 cases investigations were opened, and 56 cases were tried. Rostrud similarly forwarded 1,669 cases of alleged non-payment of wages to the prosecutor's office, of which 12 went to trial.[275] It is not known if any of these cases are related to migrant workers, however, as stated above, Rostrud officials indicate that the agency receives very few complaints from foreign workers.

According to one diaspora leader who had forwarded several complaints regarding non-payment of wages to the prosecutor's office in Ekaterinburg, "Prosecutor's offices generally refuse to take these cases, since people don't have work contracts." As a result, the diaspora leader resorts to informal methods. "We try to find … the employer and call on their conscience to do the right thing," he told Human Rights Watch.[276] Embassy and consular officials similarly reported that the prosecutor's office did not actively engage on such cases. Some officials claimed that the prosecutor's office sent pro-forma information about the measures it was taking with respect to the cases, although few resulted in concrete outcomes.[277]

A few migrant workers interviewed by Human Rights Watch described their direct contact with the prosecutor's office in Russia. A 45-year-old worker from Khujand submitted a complaint about non-payment of wages to the prosecutor's office in Moscow in 2007, but, as of this writing, had not heard anything. He had worked for seven months in Moscow building a cultural center. Although he had a written contract and his employer promised to pay 15,000 rubles per month, the employer ultimately paid him just over half that. The employer also confiscated his passport.[278]

Amangeldy A., a 26-year-old worker told Human Rights Watch about his attempts to file a complaint with the prosecutor's office after an attack by riot police at his temporary residence in a village in Moscow oblast. He told Human Rights Watch:

Some OMON come regularly to this area at about 4 or 5 a.m. They break into the house and force everyone to pay something. One day I thought, I'm going to sleep in the car, and maybe they won't notice me. They saw me and I tried not to get out of the car, but they said, "Get out or we'll set the car on fire." [I got out] and they beat me. I wanted to complain. First I went to the prosecutor's office on Babushkinskaia street, and they sent me to the [prosecutor's office] at the Yaroslav train station. … But there they just refused to accept my complaint. I want to file the complaint [somewhere]. I want to go through with this.[279]

Human Rights Ombudspersons

Russia 's Human Rights Ombudsman, as well as the Ombudsman's regional representatives, can receive complaints from persons on the territory of the Russian Federation who believe their rights have been infringed. However, migrant workers rarely approach the Ombudsman offices with complaints. Sergei Yagodin of the Russian Human Rights Ombudsman's Office told Human Rights Watch that his office did not receive any complaints from migrant workers in 2008. He believes this is because most migrants are afraid to come forward to official agencies. [280] Similarly, according to Sverdlovsk Oblast Ombudswoman Tatiana Merzliakova , her office rarely receives complaints from migrant workers, although they are aware that abuses do take place in the oblast and have responded to complaints of non-payment of wages by contacting employers or referring cases to the prosecutor's office. [281]

Russia 's Human Rights Ombudsman and some of his regional representatives do undertake activities to promote protection of migrants' rights. Yagodin stated that the Ombudsman's office works with diaspora groups to provide rights and other information to migrant workers; conducts visits to temporary detention centers where migrants awaiting deportation or expulsion from Russia are held and to police stations when migrants are detained; and also organizes conferences and roundtable meetings on the human rights of migrants. [282] When Human Rights Watch interviewed Merzliakova in late May 2008, she was strongly advocating for an increase in the quotas for work permits, which had nearly expired in Sverdlovsk oblast by that time. [283]