4.3 Labor-Sending Countries' Government Response

Labor-sending countries also have obligations to protect workers who seek employment abroad from abuse. There are a range of measures governments can and, at times, do take to help ensure protection of migrant workers, including providing effective consular services specific to the needs of migrant workers in countries of employment; implementing anti-trafficking legislation and policies; regulating employment agencies and individual employment recruiters; receiving and investigating complaints of abuse of migrant workers' rights by all parties, and prosecuting those responsible for abuse; and cooperating with international organizations such as the International Organization for Migration (IOM) and the International Labour Organization (ILO) as well as domestic NGOs in the formulation and implementation of the above.

The focus of this report is on abuses committed in Russia and the Russian government's response. As part of this, we have sought to highlight some aspects of certain sending countries' response to protection of migrant workers. However, it is not within the scope of this report to undertake a comprehensive analysis of all measures that relevant labor-sending countries are undertaking. These practices are, however, worthy of additional study, and in some cases have already been the subject of research and reporting by other entities.  Below are some aspects of regional governments' response that Human Rights Watch has researched and are particularly relevant to the findings and recommendations in this report.

Embassies and Consulates

In almost all cases embassies of sending countries do not regularly respond to complaints they receive from their citizens about employment and other abuses in Russia. The response among embassies, however, varied widely. The governments of Tajikistan and Kyrgyzstan appear to be the most active in attempting to respond to rights violations and provide staff dedicated to labor migration issues.

The embassy of Tajikistan has organized a three-person migration policy group and the Tajik Migration service has a representative in Ekaterinburg. The embassy's migration policy group stated that there are monthly meetings held between ambassadors, the Federal Migration Service (FMS) director and the deputy minister of internal affairs to discuss migration policy. Beyond this, the embassy staff work regularly with the FMS and "have some results" advancing issues of concern to them.  With respect to citizen services, embassy officials told Human Rights Watch that when they receive a complaint, they try to speak to employers who hired the workers, but very often, the employer simply claims that the workers never worked there. The officials also told Human Rights Watch that the embassy had submitted complaints to the prosecutor's office, but prosecutors typically reply that they are unwilling to pursue the cases because the workers do not have any contract. [296]

The head of the Kyrgyzstan State Committee on Migration and Employment, Aigul Ryskulova, told Human Rights Watch that the State Committee has nine representatives abroad, including in Moscow, Novosibirsk, Orenburg, and Krasnoyarsk, as well as 21 volunteer representatives in other locations. A representative of the State Committee serves as a labor attaché in the embassy of Kyrgyzstan in Moscow. The labor attaché will act on behalf of migrant workers in cases of employer abuses or other problems [297] and also provides information about vacancies in Russia to some agencies in Kyrgyzstan. [298]

The consulate of Kyrgyzstan in Ekaterinburg receives complaints from migrant workers, most often regarding non-payment of wages in cases when employees had only an oral agreement with the employer, as well as cases regarding migrants being cheated by intermediaries. The consulate staff regularly refer complaints to the prosecutor's office and the Sverdlovsk oblast human rights ombudswoman. An official from the consulate acknowledged that these cases are "very difficult to resolve because of an absence of evidence." [299]

One worker from Kyrgyzstan described his experience appealing to his national consulate: "When we did not get paid as promised we complained to [a diaspora group] and then to the consulate. We wrote a complaint in the consulate, but I don't know what they did with it. … We believed in the consulate, that they will do something for us. But there was no result." [300]

An official with the embassy of Azerbaijan reported that the embassy organizes awareness-raising activities to improve understanding among their citizens about Russian migration laws and requirements, but do not have a mandate to respond to complaints. [301] An official with the Armenian embassy in Moscow told Human Rights Watch that the embassy frequently receives complaints about confiscated passports, failure to pay wages, and degrading treatment by police or employers. In cases of confiscated passports, embassy staff will go to law enforcement agencies on behalf of their citizens, and that the agencies respond indicating which measures they have undertaken. They have also submitted appeals to Russian government agencies for employment related issues, but generally encourage people to pursue court cases on their own. [302]

The consul at the embassy of Ukraine stated that the embassy only occasionally receives complaints regarding employment violations. In the case of non-payment of wages, the embassy does not have the possibility to provide assistance. The consul stated when they submit a complaint to the prosecutor's office, they have always received a response about the measures being taken. He also stated that Russian government officials welcome their input during the development of law and policy in the migration sphere. [303]

Human Rights Watch requests for meetings at the embassies of Uzbekistan and Moldova went unanswered. Migrant workers from Uzbekistan told Human Rights Watch that they did not seek assistance from the Uzbekistan embassy in Moscow owing to suspicion of the government and a lack of faith that the embassy would intervene on their behalf. 

Regulation of Employment Agencies and Other Intermediaries

As noted above, most labor-sending countries insufficiently regulate and monitor employment agencies providing services to migrant workers seeking employment abroad. The standards differ among sending countries. Human Rights Watch was able to analyze in some depth the current laws and practice in Tajikistan and Kyrgyzstan.

Tajikistan

Tajikistan 's licensing law establishes only very general requirements for establishing an employment agency providing services to workers from Tajikistan seeking to work in foreign countries. [304] The law on migration specifies that all workers going to work abroad must have a contract with their employer; by extension all employment agencies must ensure client have contracts with their employers. These contracts must be registered with the Migration Service of the Ministry of Interior. [305] A 2008 ILO-commissioned research on the activities of private employment agencies engaged in recruitment for foreign jobs, found that Tajikistan's legislation failed to regulate employment agencies sufficiently, leaving workers vulnerable to abuse. [306] As noted above, the ILO study also examined 15 employment agencies and found numerous irregularities in the contracts signed by the agency with workers and with employers in Russia (see Case Study: Tajikistan).

In 2007 and 2008, the government initiated three criminal investigations into alleged violations, including trafficking and fraud, by employment agencies, although the final outcomes remain uncertain. [307] According to IOM, there have been no convictions for trafficking for labor exploitation in Tajikistan. [308] One criminal case involving 110 victims of exploitation and fraud by the head of an employment agency was referred to court, but then returned to the prosecutor's office for additional investigation, without specific explanation. [309] Human Rights Watch is not aware of any outcome in the second case.

In a third case, in early 2008, the General Prosecutor's Office opened an investigation into possible "trafficking in persons," by the Vostok-Farm employment agency concerning a group of workers sent to work in a rock quarry in Rostov, Russia (see Trafficking into Forced Labor, above). However, the prosecutor's office closed the case in December for "lack of evidence of a crime." The lawyer for one of the victims intends to appeal the decision. [310]

In recent years a few victims have brought civil lawsuits against employment agencies, and Sogd province courts have issued two rulings in such cases. The ILO has determined that bringing a civil lawsuit is expensive and time-consuming and therefore not a readily accessible mechanism for most migrant workers to seek redress. [311] In one case, a court did not find the employment agency responsible for serious health problems that the victim maintains were a result of poor working and employer-provided living conditions in Moscow. In a second case, the Human Rights Center represented a victim, a father of two, who was forced to have both legs amputated as a result of frostbite after fleeing an abusive employer near Volgograd. The court found the Tojikkhorichakor agency responsible for inflicting damage to the victims' health, but only awarded the victim, a father of two, 1,500 somoni (US$430). The victim is currently appealing the decision; no damages have been paid. [312] The Bureau on Human Rights and the Rule of Law office in Khujand represents victims in a lawsuit brought in August 2008 in which workers were allegedly trafficked and exploited in Poland. [313] As of this writing, proceedings have not yet concluded.

 

Kyrgyzstan

Kyrgyzstan has developed stronger regulation of private employment agencies, including by allowing the worker to hold the employment agency responsible for employment contract violations by the foreign employer with whom the agency arranged employment. [314] The law on external labor migration limits the fees that may be charged by an agency (up to 50 percent of the first salary) and stipulates that the work contract regulating all aspects of the employment shall be concluded before the migrant leaves for the country of destination. [315] The law also requires agencies to register all contracts signed with workers with the State Committee on Migration and Employment. In addition, if the employer breaks the contract, then the employer and agency are responsible for the costs of the worker to return to Kyrgyzstan, unless otherwise specified in the contract. [316]

The State Committee on Migration and Employment in Kyrgyzstan (Migration Committee) has a specialized commission that receives complaints from migrant workers once they have returned to Kyrgyzstan. According to the head of the Kyrgyzstan State Committee on Migration and Employment, Aigul Ryskulova, the State Committee focuses on ensuring that employment agencies in Kyrgyzstan fulfill the obligations to their clients. For problems workers face in Russia, the Committee will also refer complaints to their embassy or consulate representatives as well as diaspora groups in Russia, who will contact the employer by phone or in other ways in order to secure payment for workers, as described above. [317] Ryskulova expressed pessimism about the likelihood that migrants would receive fair hearings in lawsuits brought against Russian employers in Russian courts.

The Migration Committee serves as both the licensing body for employment agencies providing foreign job placement as well as the entity investigating complaints and resolving disputes involving employment agencies. This dual function diminishes its effectiveness as a potential body to receive and resolve complaints. According to a representative from one agency, "The Migration Committee is the body that controls my activities. Could I continue working if I would appeal their decision in court?" [318] He also told Human Rights Watch:

 

Once we sent five individuals [to Russia] and then the employer disappeared. We do not know what happened to [the workers]. I think everything is fine, otherwise their relatives would seek us out. Me, I even cannot apply to the [Russian] FMS for help. I have to go through the State Committee on Migration and Employment [in Krygyzstan]. And what will the State Committee do? They will first cancel my license, and then will try to find out who is wrong or right.[319]

Human Rights Watch learned of a few lawsuits brought against agencies in Kyrgyzstan, but as of this writing does not have information on their outcome. [320]

Uzbekistan

In Uzbekistan, under law, workers seeking employment abroad must apply through the state Labor Agency. The Labor Agency is the only entity authorized to provide recruitment services to workers seeking to work abroad. Under law a person may find employment abroad on his own, and then apply for a permit at the Labor Agency, but must do so in person at the agency's headquarters in Tashkent, the capital. In practice, the majority of workers find employment through unofficial intermediaries, including individuals acting as brigadiers or recruiters as well as travel agencies illegally providing recruitment services.[321]