Lebanese Domestic Worker Denied Wages, Charged for Theft

2018-07-19    |   

Lebanese Domestic Worker Denied Wages, Charged for Theft

Her [the employer’s] driver answered us … and told us that she is abroad, specifically in the state of Vienna [sic] … He said she told him that if we called, she wants the law to be applied if it is found that the arrestee [the worker] … is involved in theft. Besides that, she wants nothing from [the worker]. She said that [the worker’s] residency is expired and she is willing to settle [the worker’s] status with General Security so that [the worker] can be deported as she doesn’t want [the worker] back in her home.


This statement was recorded by one of the Internal Security Forces personnel in an investigation report dated March 30, 2017. It summarized the substance of the complaint that an employer filed against her Ethiopian worker, who had been arrested days earlier pursuant to the complaint. All the employer wanted, it seemed, was for the law to be applied to a worker who dared steal from her. Subsequently, the Public Prosecution charged the worker with theft and with failing to renew her residency. The investigating judge followed suit in his indictment, as did the trial judge (the single criminal judge in Beirut) in the ruling issued on June 30, 2017. The latter sentenced the worker to one month of imprisonment, a fine of LL400,000 [US$265], and deportation after the sentence is served. The punishment for not paying a fine is imprisonment of one additional day for every LL10,000 [US$6.60] owed, which in this case doubles the worker’s prison sentence such that it becomes two months and ten days. While the sentence included time already served in detention, at the time of the ruling that period had reached three months and two days, and the detention probably continued thereafter in the General Security station pending the deportation order’s execution.


At first glance, the ruling seems to be based on clear facts. However, an examination of the case file reveals several clear biases against the worker on the part of the court – biases that we shall detail below.


Bias 1: Blaming the Worker for the Crime of Failing to Renew Residency


The ruling reveals that the worker was held responsible for the crime of not renewing her residency, while the employer continued employing her for more than ten months after her residency expired without taking any initiative to renew it. Two aspects of the case file are noteworthy: firstly, in Article 10 of the standard, signed and notarized contract, the employer explicitly pledged to duly obtain a work permit and residency card at her own expense and to renew these documents so long as she continued employing the worker. Secondly, General Security had, one last time, given the worker and, implicitly, the employer a one-month deadline to renew the residency. However, the deadline elapsed on July 21, 2016, with no initiative taken.


Hence, the judges at the three levels of prosecution (the Public Prosecution, the investigating judiciary, and the trial court) were content to charge the worker alone with responsibility for not renewing her documents without scrutinizing the reasons for the non-renewal or the employer’s implication in it even though the contract charges the latter with responsibility for renewal. None of these authorities even asked who possessed the worker’s documents despite the common practice of employers illegally confiscating such documents.[1] In this regard, the judges’ stance reflects the unbecoming and frequent judicial practice of holding domestic workers responsible for not renewing their documents, when in practice renewal cannot occur without the employer’s consent.


These questions are more pressing given that  the investigating judge’s indictment hastened to attribute to the worker a narrative as to why the renewal did not take place that implicitly absolved the employer of  responsibility. The indictment (as well as the preliminary investigations report) stated that the worker “was not able to renew her residency as she was in the process of obtaining a new passport from the Ethiopian embassy”. While this phrase suggests that the worker and her embassy bear exclusive responsibility for not renewing the residency, the case documents reveal that this portrayal is far from the truth. Firstly, the worker never stated that she was unable to renew her residency. Rather, according to the Internal Security Force’s report, she stated that, “they were late in renewing my residency”, which indicates that she never considered herself authorized or capable of renewing it herself. The indictment’s substitution of the phrase “they were late” with “she was unable” indicates a bias that shifts the responsibility for the non-renewal. Making this aspect of the indictment even more problematic, the investigating judge asked the worker no question about the issue; rather, he was content with her statement to the judicial police once it had been distorted in the aforementioned manner. Secondly, and most importantly, the copy of her passport on file clearly shows that the reason the worker gave is not accurate, which reflects her ignorance of her legal status. Her passport was actually renewed on June 27, 2016, and is valid until June 26, 2021. This indicates that the employer renewed and retained the worker’s passport without following the procedures to renew her residency with General Security for reasons that went unquestioned.


If that is true, then contrary to the indictment’s conclusion, the employer is contractually and legally responsible for not renewing the residency, whereas the worker should benefit from the force majeure excuse that the employer had confiscated her documents.


Bias 2: The Judiciary Ignores the Employer’s Grave Violations – Human Trafficking?


The second bias in the judicial work is the three judicial authorities’ willingness to ignore grave violations committed by the employer.


Not Paying the Worker’s Wages for Over a Year


Besides the employer’s responsibility in the non-renewal of the worker’s documents, a graver violation was also ignored, namely that the worker had not been paid for over a year. Such non-payment contravenes Article 6 of the contract, whereby the employer pledged to pay the entire month’s wage by the end of each month without any unjustified delay. This issue is clearly evident in the record of the worker’s interrogation before the investigating judge, which stated that “the plaintiff owes her approximately a year’s worth of wages”. It is also evident in the judicial police’s report on the preliminary investigation, in which the worker stated clearly that, “Ms. Huda has not paid my salary [USD$200 per month] for about a year”. Those familiar with the harsh work conditions that domestic workers face far from their families know the risk of non-payment of wages, which is one of the elements of forced labor that comprises the crime of human trafficking. Nevertheless, none of the judicial authorities saw a reason to summon the employer or take measures against her; rather, they went about their business investigating the worker on the basis of the employer’s theft complaint as though they knew nothing. The indictment never even mentioned this fact. The same can be said for the trial judge, who asked no question about the unpaid wages and whose ruling made no mention of them whatsoever. Hence, besides turning a blind eye to an act that could constitute a very serious felony of exploitation, the judicial authorities did not even consider that the act could (if true) constitute a factor mitigating the worker’s criminal responsibility.


The case file reveals that the employer’s unnoted violations were not limited to these two matters (not renewing the worker’s residency and not paying her wages for an entire year). Rather, they also included actions that violate other explicit pledges found in the contract or that deviate from the general principles of law, actions that constitute additional cause for opening an investigation into human trafficking by the employer. The most important include:


No Vacations for the Worker


Firstly, the worker was not granted a vacation. The investigation report stated that “she had worked continuously in the plaintiff's home for approximately three years, meaning that she did not leave for Ethiopia”. This statement, which went uninvestigated, clearly conflicts with Article 12 of the employment contract, which grants the worker a six-day annual vacation – not to mention the other, weekly breaks, which the investigations did not address at all.


Violating the Worker’s Right to Privacy


Secondly, the worker’s right to privacy was violated in contravention of Article 8 of the contract, in which the employer pledged to respect this right. This is evident in an extremely serious fact that, in a fair trial, could result in the prosecution being dropped entirely. The evidence that the employer presented against the worker – assuming its veracity – was obtained illegitimately. The employer allowed herself to search the worker’s room and personal effects even though she had no right to do so. How did the judicial authorities fail to consider the legality of this measure, which blatantly contravenes criminal procedure? Does this turning of a blind eye not reflect a preconception on the part of the judicial authorities, namely that a domestic worker’s privacy enjoys no legal protection?


No less grave is the employer’s confiscation and retention of the worker’s mobile phone without any legal justification. Unfortunately, the judicial police once again found no issue with this behavior. Rather, they appeared to be in harmony with the employer. What concerned them was how the worker used her mobile. This is reflected by the question they asked her: “Do you steal money and call someone to give it to?” The worker’s response was very telling of the extent to which her privacy was breached. Not only did she have to stress that “Ms. Huda” was the one who bought her the phone and that she left it in her possession, she also had to reveal the identity of everyone with whom she communicates to refute that she uses the phone for theft: “I used my phone at night only when I finished work to contact my family in Ethiopia and three Ethiopian friends whom Ms. Huda knows and allows me to call”. It does not take much analysis to comprehend the awfulness of the practices followed regarding domestic workers’ privacy: besides the fact that a worker has to obtain their employer’s permission for every call they make, enjoying privacy (including owning a mobile) is usually construed as evidence of involvement in criminal activity.


The attack on privacy via collusion between the employer and public authorities peaked with the pledge that the former made on April 27, 2015. The pledge read, “I confirm that there is no marriage or connection of any kind tying the worker to any Arab or foreigner residing in Lebanon, and I hereby pledge that if the existence of a marriage later becomes evident or one arises after the worker’s entry, I will consult General Security after securing a ticket with a view to deporting her to her country”. The Ministry of Justice had, at General Security’s request, issued a circular to notaries ordering them to obtain the aforementioned pledge, though it later retracted the circular at The Legal Agenda’s request.[2]


Deprivation of the Worker’s Liberty


Thirdly, the employer violated the worker’s liberty, giving herself the right to detain her in contravention of legal principles. This is plainly evident in the record of her interrogation before the investigating judge. She stated clearly that “when she is left home alone, the door is locked, and she has no house key”. These words, which reflect the extremely grave practice of detaining domestic workers and preventing them from exercising their right to leave the home, did not catch the investigating judge’s attention. Rather, they came as an incidental remark made in the context of an inquiry into why the worker possessed a key to the apartment. The investigating judge apparently saw no issue in the worker being detained like any arrestee, prisoner, or slave. Rather, what concerned him was that the worker had acquired a key to the house (and therefore her liberty), which he saw as further evidence of her criminal intentions. In this regard, the investigating judge’s stance concords with the employer’s complaint, wherein she attempted to substantiate the worker’s theft by claiming she found a spare house key hidden in the worker’s cupboard. This key also interested the judicial police to the extent that they reopened the investigation to ask her why she had it and how she used it. The worker responded that she found it in the drawer beside the living room’s door “and used it to sometimes open the house door in order to buy credit from a phone shop near the building where she works”.


Bias 3: Unfair Trial


The third bias took the form of a group of deviations from fair trial standards. The most important include:


That the case was initiated based on evidence obtained illegitimately, especially with regard to the employer’s search of her worker’s room, as previously explained.


That all interrogations of the worker, including those conducted at trial, occurred in the absence of a translator. The Internal Security Force’s reports recorded that the plaintiff stated the worker “understands Arabic well” because she “has been here in Lebanon for three years”. While the investigating judge also affirmed that the worker is proficient in Arabic, the court did not bother to ask her. Of course, we must question whether the worker’s presence in Lebanon in the scope of domestic work would render her capable of understanding the questions directed at her, of expressing herself, and, most importantly, of understanding the statements ascribed to her in the written records.


That she was interrogated and tried without a lawyer even though the Bar Association appointed one to defend her as legal aid after she submitted a request to the investigating judge, as recorded in the case file. The lawyer attended none of the hearings of the investigation or subsequent trial, nor did he present any defense for her. This raises questions about why he neglected his duty in this regard.


Finally, the trial judge, rather than working to compensate for the lawyer’s absence by taking a proactive role clarifying the case details, merely recorded the worker’s denial of the complaint without bothering to question her about the details or, more importantly, to question the employer.


Bias 4: Punishing Poverty?


The fourth bias emerges from the combination of a legal bias and a judicial bias against disadvantaged people, foremost among them domestic workers.


While Article 54 of the Penal Code stipulates that a person convicted and unable to pay a fine be imprisoned for one extra day per LL10,000 [US$6.60], a number of judges (including the judge examining this case) continue to impose fines on many domestic workers despite multiple indicators that they cannot pay them. Hence, with the fine’s conversion to imprisonment (40 days), the prison sentence that the worker served became, for the most part, a punishment not for theft but for being unable to pay the fine or, in other words, for being poor. Making the fine even more problematic, it was issued in a case wherein not only was it established for the court that the worker had received no wages during the past year, but the judicial authorities also refrained from taking any step to enable the worker to collect these wages.


Besides all these biases, we must also point out that the employer filed her complaint not so that the offender could be identified or to recover her stolen property (a watch she alleged is worth US$1,500), but merely to substantiate the worker’s involvement in order to pave the way for ridding herself of and deporting her. This is evidenced by the fact that she only resorted to the police station after recovering the watch she alleged was stolen – a watch that none of the judges were able to view to determine its value. One thing is certain: the stolen watch is worth far less than the year of the worker’s life that the employer stole with no compassion, mercy, or, most importantly, accountability.


Thus, the Ethiopian worker was arrested, tried, and deported without compensation while Ms. Huda was spending the money she saved on the worker’s wages in “the state of Vienna”.


This article is an edited translation from Arabic.


Keywords: Domestic Work Abuse, Lebanon, labor rights, right to privacy


[1] Nizar Saghieh, “Madbatat Ittiham bi-Rasm al-Niyaba al-‘Amma: Na’m, Nahnu Nutjir bi-l-Bashar”, The Legal Agenda, is. 43, September 2016. The article refers to a study in which 94% of employers questioned stated that they retain their domestic workers’ documents.

[2] The Legal Agenda, “Ilgha’ Ta’mim Man’ al-Hubb aw al-Isti’bad: Fi Isti’adat li-Mahattat al-Taharruk wa-Jard li-Makasibihi”, published on The Legal Agenda’s website, July 31, 2015.

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