Isolation Circumstances which can contribute to convictions

workers, had taken advantage of their vulnerable position and also abused her position of power. The facts about the salary were mentioned as background for the conviction. 395 In ECLI:NL:RBROE:2010:BO4108 Netherlands, 396 Polish nationals were exploited by the defendant at his farm. Among other facts, the court mentioned that they did not receive their salary on time or at all. The court convicted the defendant of human traficking, and explicitly mentioned hard working conditions as a circumstance important to the conviction. In Farrell United States, 397 the victims were paid 3 per room for cleaning hotel rooms. It took approximately one hour to clean each room. In addition, the defendants deducted travel expenses from their pay, though this was forbidden by the authorities. This evidence was noted by the court as background when it afirmed convictions for peonage, document servitude and other charges. In a domestic servitude case, Sabhnani United States, 398 one victim received no money in hand. Instead, half of the sum she had been promised was paid to her daughter in Indonesia. This fact formed the background to an afirmation of convictions of forced labour, peonage and other charges. In Connors United Kingdom, 399 the victims laboured for a family-owned landscaping company and were promised paid work. However, they received little or no pay. In the appeals decision this was mentioned as part of the factual background. The defendants were convicted of holding another person in slavery or servitude or requiring them to perform forced or compulsory labour. However, caution must be exercised in not giving undue emphasis to the purely economic aspect of a case. In S.K. United Kingdom, 400 the appeals court allowed the appeal against a conviction for facilitation of the arrival of a person into the United Kingdom with intent to exploit him. The appeals court’s reasoning was that the trial judge’s instructions to the jury placed undue emphasis upon the disadvantageous economic relationship between employer and employee, which would have been itting in an employment law context, but was not strong enough to establish guilt in regard to a crime that may carry a signiicant punishment. It should be noted in this context that the deinition of “exploitation” in the particular offence at issue refers to slavery, servitude and forced labour. This case highlights the importance of not ascribing undue importance to any one circumstance, especially if that circumstance is low pay only, in which case often a more appropriate charge might be a labour or exploitation offence rather than a traficking in persons charge. 395 The description of this case is based on a summary in the UNODC case law database, which does not include a detailed analysis of how the court used these facts. 396 Previously cited. 397 See Index of all cases. For detailed facts, see the in-depth analysis in section 5.4 of the Case Digest. 398 See Index of all cases. 399 See Index of all cases. For detailed facts, see the in-depth analysis in section 5.11 of the Case Digest. 400 R. v. S.K. [2011], EWCA Crim. 1691, 8 July 2011, England and Wales Court of Appeal Criminal Division, United Kingdom. The case is available in the UNDOC Human Traficking Case Law Database UNODC Case No. GBR020. Pay-related issues typical for traficking in persons cases may include but are not limited to: • No pay • Very low pay • Irregular payments • Unreasonable deductions • Wage cuts Note of caution: if pay-related facts are the only circumstance in the mosaic of evidence, caution should be exerted in concluding that a severe crime of traficking or allied crimes has been committed.

3.2.9 Dificult work conditions

One frequent element which forms part of the mosaic of evidence in convictions of traficking or allied crimes is dificult working conditions. The absence of pay or low pay is an important part of these conditions and because of its centrality, a separate section is devoted to it see 3.2.8 directly above. Other dificult work conditions may include long hours, lack of leisure time or very little leisure time, little sleep, or little or no safety equipment. These circumstances clearly impact on the element of PURPOSE OF EXPLOITATION where that is part of national legislation. However, even if national legislation does not explicitly require the establishment of exploitation, dificult work conditions may impact upon speciic PURPOSES OF EXPLOITATION such as slavery or forced labour, the ACT or the MEANS. In Case No. 20123925 Belgium, 401 a case involving labour exploitation of employees in a service which provided cleaning of toilets in motorway rest areas, the court noted that the mere fact that the employees worked 15 hours per day, seven days per week, is suficient to ind the defendants guilty of human traficking. 402 Similarly, in Case No. 66809 [2010] Belgium, 403 concerning Chinese workers illegally working in a restaurant, the court found the defendants guilty of human traficking. The court held that the working conditions of the victims violated human dignity, in particular because the Chinese workers had not received any salary, did not know how much they would receive for their work and worked for six days and sometimes seven days a week. However, in another Belgian case, C1182013 Belgium, 404 the Appellate Court reversed the conviction of the trial court, partly because mere departure from safety norms and employment without a legal permit could not be considered against human dignity according to the charge of “labour conditions contrary to human dignity”. 401 Case No. 20123925, First Instance Court of Gent, 19th Chamber, Belgium. The case is available in the UNODC Human Traficking Case Law Database UNODC Case No. BEL030. 402 However, the constellation of facts also included victims who were foreign nationals and did not understand the contract, and in addition, a very small salary. 403 Case No. 66809, Court of Appeal, Gent, Belgium, [2010]. The case is available in the UNODC Human Traficking Case Law Database UNODC Case No. BEL002. 404 Court of Appeal Hof van beroep., Antwerp, Belgium, 23 January 2013, Belgium. This case is available in the UNODC Human Traficking Case Law Database UNODC Case No. BEL003. In ECLI:NL:RBROE:2010:BO4108 Netherlands, 405 Polish nationals were exploited by the defendant at his farm. Apart from not receiving their salary on time or at all, the workers were required to work very long hours of up to 70-80 hours per week and had very limited rest periods or days off. The workers had no work permit and no health insurance in the Netherlands. The court convicted the defendant of human traficking, and explicitly mentioned hard working conditions as a circumstance important to the conviction. See also Kovacs Australia, 406 where the victim was required to work seven days a week, up to 17 hours per day, for little or no pay. At trial, the Court heard evidence that on weekdays she worked from 6 a.m. to 6 p.m. in the shop, followed by between four and ive hours of domestic work at the defendant’s house, where she cared for three small children and performed household duties. She was also required to work in the shop on Saturdays between 6 a.m. and 12 p.m. and performed domestic work the remainder of the weekend. She was not allocated any work-free days. Another example of dificult work conditions can be found in Farrell United States, 407 a case in which workers’ free time was considerably constricted; they worked 13 hours a day, seven days a week and were required to work in two jobs. As a result, they often experienced sleep deprivation. The court expressly mentioned these working conditions as a circumstance relevant to the conviction on the charge of peonage. In Sabhnani United States, 408 the victims were required to work long hours—from about 4 or 5 a.m. until late at night, seven days a week, entailing sleep deprivation. The court mentioned these facts as background to afirming a conviction of peonage, forced labour and other charges. In Alzanki United States, 409 the victim was compelled to work ifteen hours a day per- forming domestic duties. The defendant required the victim to clean on a “constant basis with caustic and noxious chemicals, without the beneit of respiratory protection, and her requests for rubber gloves were refused”. 410 The defendant’s conviction of involuntary servi- tude was upheld upon appeal. In Wei Tang Australia, 411 the victims worked in the defendant’s brothel, six days a week, “serving up to 900 customers over a period of four to six months”. 412 Frequently, the victims also worked on the seventh day, which was considered their “free” day, since on their free day they were permitted to keep 50 per customer while on other days the money they earned was kept by the defendant. 413 The defendant was convicted of ten counts of slavery offences. Most of the cases cited are also characterized by an absence of an employment contract, substantive divergence from it, or lack of understanding of its terms. 405 Previously cited. 406 See Index of all cases. 407 Previously cited. For detailed facts, see the in-depth analysis in section 5.4 of the Case Digest. 408 See Index of all cases. 409 See Index of all cases. 410 See Index of all cases. These facts were offered as background by the appeals court. 411 The Queen v. Tang [2008], HCA 39 28 August 2008. For detailed facts, see the in-depth analysis in section 5.3 of the Case Digest. 412 The Queen v. Tang [2008], HCA 39 28 August 2008 at 14. 413 50 of it was applied to pay off their “debt” which the defendant told them was between 40,000 and 45,000 and the rest was kept by the defendant.