Introduction

Today, at least 12.3 million people are victims of forced labour worldwide. That means that they exact their work or service involuntarily under the menace of penalty.  One of the most widespread means of putting of human being into this position is trafficking – XXI century slave trade. It’s extent is not properly assessed yet. The estimated minimum of persons in forced labour at a given time as a result of trafficking is more than 2.4 million. Around 4 million human beings became victims of traffickers every year. In industrialized countries, countries with transitional economies and countries of Middle East and North Africa 75%  of cases of  forced labour exploitation are a result of trafficking. Most of the victims (43%) are trafficked for purpose of commercial sexual exploitation, but many are also trafficked for economic exploitation (32%). The remainder are trafficked for mixed or undetermined reasons (25%). Annually, according to U.S Government sponsored research completed in 2006, approximately 800,000 people are trafficked across national borders, which does not include millions trafficked within their own countries. Approximately 80 percent of transnational victims are women and girls and up to 50 percent are minors. The majority of transnational victims are females trafficked into commercial sexual exploitation. These numbers do not include millions of female and male victims around the world who are trafficked within their own national borders—the majority for forced or bonded labor.

This crime violates fundamental rights and freedoms of  human beings stated in the Universal Declaration of human Rights of 1948. Recent developments show that in spite of implemented measures trafficking remains on the “honorable” 3rd place after drug and arms trade as one of the most profitable criminal businesses.  According to ILO sources annual profit received from trafficked persons approximately constitutes 32 billion USD.

Root causes of  this grave crime are number of  factors- unemployment, discrimination, poverty and scarcity  of resources and opportunities in countries of origin. On the other hand there are increasing demand on cheap, easily exploitable workforce, expansion of sex industry, appearance of new methods and possibilities of transportation, exchange of information and money transfer after technologic advance and globalization. 

Situation in Georgia

Trafficking is closely connected to the recent socio-economic and political developments that have been taking place in Georgia, that caused massive displacement of people in search of more decent and secure life from countryside to cities (mainly to the capital) and abroad.  Georgia due to it’s geographic position has been used as transit route for trafficking and migration of  foreign citizens. Control over two important regions of Georgia Abkhazian Autonomous Republic and former South Ossetian Autonomous District has been lost that create fertile ground for various criminal activities. All these stimulated revival of crime known as “prisoners trade” in ancient Georgia.

Clarification

Universally accepted definition of  trafficking is stated in the protocol “To prevent, suppress and punish  trafficking in persons, especially women and children” (Palermo Protocol) supplementing United Nations Convention against Transnational Organized Crime, article 3 of which states  For the purposes of this Protocol:
(a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article;
(d) “Child” shall mean any person under eighteen years of age.

This definition affected national legislations of numerous countries and as well as Georgian criminal code:

Art. 1431. Human Trafficking

1. Purchasing or selling of a person or subjecting him/her to other illegal deals, as well as enticing, conveying, hiding, recruiting, transporting, handing over, harboring or receiving a person by means of threat, violence, or other forms of coercion, abduction, blackmail, fraud, deception, using vulnerable position of a person or by abusing power, granting or receiving remuneration or other benefits, to obtain the consent of a person capable to influence another, for the purpose of exploitation –
shall be punishable by prison sentence ranging from seven to twelve years in length, by deprivation of the  right to occupy a position or pursue a particular activity for the term of one year.
2. The same action, perpetrated:
a) against a pregnant woman;
b) against a person being in a helpless position or the one being dependent on the perpetrator materially or otherwise;
c) by using official position
shall be punishable by prison sentence ranging from nine to fourteen years, by deprivation of the  right to occupy a position or pursue a particular activity for the term of two years.
3. The same action, perpetrated:
a) repeatedly;
b) against two or more persons;
c) by taking a victim abroad;
d) by using violence or threat of violence dangerous for life or health –
shall be punishable by prison sentence ranging from twelve to fifteen years, by deprivation of the  right to occupy a position or pursue a particular activity for the term of tree years.
4. The action stipulated in the 1st, 2nd or 3rd paragraph of this article:
a) perpetrated by an organized group;
b) which caused death of the injured party or other serious result –
shall be punishable by prison sentence ranging from fifteen to twenty years, by deprivation of the  right to occupy a position or pursue a particular activity for the term of tree years.

Note:
1. “For the purpose of this article and article 1432 exploitation shall mean the use of a person for forced labor or service, his/her engagement in the criminal or other anti-social conduct or prostitution, placement of a person under conditions similar to slavery or modern conditions of slavery, sexual exploitation or forcing provision of other services, as well as the use of a person for transplanting an organ, part of an organ, or tissue of a human body or otherwise utilizing him/her. The placement under modern conditions of slavery shall mean the deprivation of personal identification documents, restriction of the right to free movement, prohibition of contact with a family, including correspondence and telephone communication, cultural isolation, forced labor under the conditions degrading human honor and dignity and/or without any or adequate remuneration. The consent of a person on his intentional exploitation shall not be taken into consideration.”
2. For committing an action stated in above article a legal person will be punished by stripping a right to function or by liquidation and fine.
 

Combat against trafficking

Georgia is becoming more and more active in combat against trafficking. Country ratified international legal instruments of major importance - protocol To prevent, suppress and punish trafficking in persons, especially women and children (Palermo Protocol) and The Council of Europe Convention on Action against Trafficking in Human Beings. Steps taken in recent years have important results. In the last (June, 2008) trafficking in persons report of  the US State department  Georgia remained among first tier countries that means that Georgia fully complies with the minimum standards for the elimination of trafficking.

First time in 2003 Georgian law defined trafficking as independent crime. In April 2006 parliament of Georgia adopted Law on the Fight Against Trafficking in Persons that prohibits all forms of trafficking in persons. Georgian law prescribes penalties ranging from 7 to 20 years' imprisonment. These penalties are sufficiently stringent and are commensurate with those for other grave crimes. In June 2007, another significant step was made the Parliament of Georgia enacted an amendment to the Criminal Code of Georgia, criminalizing the exploitation of a trafficking victim:

Art. 1433 . Use of services provided by a victim of trafficking.

1. Deliberate use of services defined by article 1431 of this Code as exploitation, provided by a (statutory) victim of a crime stipulated in articles 1431 and 1432  -
shall be punishable by restriction of liberty for the maximum period of 4 years or by prison sentence ranging from three to five years.
2. The same action perpetrated:
a) repeatedly;
b) against a pregnant woman;
c) against a person being in a helpless position or the one being dependent on the perpetrator materially or otherwise;
d) by using official position
shall be punishable by prison sentence ranging from five to seven years, by deprivation of the  right to occupy a position or pursue a particular activity for the term of two years.
3. The same action, perpetrated:
a) against two or more persons;
c) by using violence or threat of violence dangerous for life or health –
shall be punishable by prison sentence ranging from seven to twelve years, by deprivation of the  right to occupy a position or pursue a particular activity for the term of tree years.
4. The action stipulated in the 1st, 2nd or 3rd paragraph of this article perpetrated by an organized group –
shall be punishable by prison sentence ranging from twelve to fifteen years, by deprivation of the  right to occupy a position or pursue a particular activity for the term of tree years.

 
In 2007, the government investigated 37 trafficking cases, and authorities prosecuted 16 cases, including four labor trafficking cases involving 18 trafficking offenders, resulting in 18 guilty verdicts. All 18 traffickers convicted in 2007 received a prison term. The average sentence was 13 to 14 years’ imprisonment. All new Georgian police officers must complete basic anti-trafficking training. Specialized, advanced anti-trafficking training is mandatory for all Border Police and Special Operations Department members. There were no reports of trafficking-related complicity of law enforcement personnel from either NGOs or the government.
 Important steps were taken to improve overall victim protections. The government allocated $180,000 to the State Fund for Victim Protection and Assistance (SFVPA) in 2007 and pledged to increase funding again by 50 percent in the next year. With this funding, the government funds 70 percent of the operating costs of two trafficking victim shelters and provides victims with free legal and medical assistance. The SFVPA also provides trafficking victims with a $650 victim assistance allowance, regardless of whether the victim cooperates with law enforcement authorities. Foreign victims of human trafficking are afforded full victim assistance benefits under Georgian law, including legal alternatives to removal to countries where they would face hardship or retribution. Trafficking victims and witnesses can also be placed under protection of separate witness protection procedures in accordance with Georgia’s criminal procedure legislation. Georgian law prohibits trafficking victims from being penalized for unlawful acts committed as a result of being trafficked. Georgia conducted extensive anti-trafficking public awareness campaigns and outreach activities, including meetings with university students, journalists, and ethnic minority representatives. The Permanent Interagency Anti-Trafficking Coordination Council, led by the head of the Presidential Administration, serves as the coordinating body for all government anti-trafficking efforts and involves representatives from local and international NGOs and embassies. The Ministry of Internal Affairs’ Informational-Analytical Department maintains a database accessible by all government agencies that stores and organizes trafficking-related information. The Ministry of Defense includes basic trafficking awareness training for all future international peacekeeping contributions as well.

Contributing factors

In spite of these efforts (undoubtedly worth of welcoming), it is obvious that this problem is not solved and requires future attention from the state as well as from the society. The report of an Experts Group on trafficking in human beings, convened by the European Union in 2003 has identified forced labour exploitation as the ”crucial element” of the Trafficking Protocol. To counter trafficking effectively, as this group observes, “policy interventions should focus on the forced labour and services, slavery and slavery-like outcomes of trafficking- no matter how people arrive in these conditions- rather than (or in addition to) the mechanisms of trafficking itself. States should criminalize any exploitation of human beings under forced labour, slavery or slavery-like conditions, in line with the major human rights treaties that prohibit their use. In it’s broader sense combat against trafficking means to combat against forced labour, but this shouldn’t be a reason for not legislating against forced labour as a specific criminal offence. Because by no means all the forced labour practices to which even migrant workers are subjected are a result of trafficking. The forced labour  itself do not necessarily has to be exacted under immediate, physical  violence or threat of violence. The penalty doesn’t need to be in the form of penal sanctions, but may also take the form of a loss of rights and privileges. Moreover, the menace of penalty can take multiple different forms. There can also be subtler forms of menace and penalties, sometimes of psychological or financial nature, including economic penalties linked to debts, the non-payment of wages, or loss of wages accompanied by threats of dismissal if workers refuse to do overtime beyond the scope of their contract or of national law.

According to the same US State Department report Georgia remains a source and transit country for women and girls trafficked primarily within the country and to Turkey and the U.A.E. for the purpose of commercial sexual exploitation. Women and girls from Ukraine, Moldova, Russia, and other former Soviet states are trafficked through Georgia to Turkey, the U.A.E., and Western Europe. Men are trafficked for the purpose of forced labor within the country and to Turkey, Russia, Greece, and the Gulf states. The breakaway regions of Abkhazia and South Ossetia were outside of the government’s control and remained likely source, destination, and transit areas for trafficking in persons.

Migration

Process of emigration is a new phenomenon for Georgia that appeared from the beginning of 1990s. After the collapse of Soviet Union the citizens of independent Georgia, as all other citizens of former Soviet Union, had the chance to travel abroad without any of the artificial impediments of the past. During the first three years of the nineties Georgia was confronted with a number of dramatic civil wars, which brought large flows of internal displacements and inflicted social-economic hardship on the whole population of Georgia. Country was almost at a standstill and the whole economy was paralyzed due to a pinching lack of energy resources and a highly unstable political situation. A deep economic collapse of Georgia that has not been properly exhausted during first years of transition, revealed later in economic dislocation with the phenomena of inflation, corruption, unemployment and poverty contributed to the deep social crisis in the country. Due to the prolonged social-economic crisis and lack of realistic prospects for improvement in the near future many Georgians continued to migrate abroad for temporary or even permanent settlement, which caused the persistent intensive emigration flows of Georgians during whole period after independence.

Many Georgian citizens decided to leave their country to look for a better life elsewhere and emigrated in a great numbers. Exact figures of Georgian citizens who have emigrated do not exist. There is only an estimation based on the comparison of the census of the population from 1989 and 2004, from which one may infer from the difference in the population estimates that roughly 860 000 Georgians left between 1991 and 2004. Other sources estimate that 1.500 000 persons have left Georgia. The data on Georgian emigrants abroad may serve only as a very basic indicator that does not reflect the actual situation. About a quarter of a million IDPs from Georgia’s secessionist regions of Abkhazia and Tskhinvali Region (South Ossetia) have been waiting for a solution since their displacement in the early 1990s. The majority of the 220,000 to 250,000 IDPs have found refuge in the regions bordering Abkhazia and in the Georgian capital, Tbilisi. As an additional migration challenge, Georgia will in the near future deal with the repatriation and integration of members of the deported Meskhetian population.  The law “on Repatriation of Persons Forcefully Sent into Exile from Georgian SSR by the former USSR in the 1940s” was passed by the Georgian parliament. It foresees that applications for return can be filed as of 1 January 2008 for a one year period. It is not known how many deported Meskhetians and their descendants are considering to apply for repatriation and thus what numbers of repatriates to expect.

In any case, the numbers are huge, and taken together with the fact that Georgia is facing brain drain with the emigration of a young and highly-educated population, call for appropriate responses within the constructive migration policy to manage these flows.

At first migrants were attracted mostly by the neighbouring Russia and Turkey. The moves of Georgian migrants in the countries so called far-abroad become later significantly more frequent than before.  Western European countries and USA became recipient countries for Georgians at the beginning of 1990s, this process started from Greece and then expended to other countries. The most attractive countries for Georgian citizens now are Greece, Germany, USA and Turkey; in the last period in the list of these countries appeared also UK, but Russia and territories of the other former Soviet republics are still attractive for Georgian migrants.

As a matter of fact while young well educated Georgian women are more highly prone to migration in the Western European countries and USA, to the NIS - territory are coming for work mainly married less educated men in the age around 40 years.

Georgian labour migrants rarely use legal routes of migration and official mechanisms of mediation because of their lack or mistrust. Such Migrants usually use informal channels, contacts, friends and relatives already residing abroad, hence majority of migrants are irregular migrants and work illegally, according to one recent research they comprise ¾ of all labour migrants.

As it is mentioned above emigration process mostly affected young, educated and energetic people, with high working ability. They are driven by low incomes and restricted employment possibilities. Their illegal status and therefore lack of available jobs abroad cause their employment on non-prestige  and low paid jobs, without contracts and official registration that makes it easier for employers to violate their rights. Above mentioned research confirms that discrimination of Georgian workers in the field of reimbursement of their work and social security. According to mentioned survey, most of the Georgian migrants (72%) did not hold an official contract with their employer. In a very few cases (2%) the contract was drawn up, but formally on the other person. So 3 among four of Georgian migrants have been worked abroad illegally. The possibilities for organized, legal migration for the purpose of work are rather poor in Georgia, and may remain such for a long time. At the same time the flows of irregular labor migrants from Georgia increase by years. This is the process that does not comprise only Georgians, but involves also the labor markets of recipient countries. It seems that foreign employers are much more interested in a cheap, illegal labor force, in order to avoid both, paying taxes and taking any responsibility in case of any accident.  In general migrants- men abroad earn more than women: in Germany and USA they earn between 30% and 40% more, in UK – 19% more in average.  It should be noted that Turkey and Greece are distinctive from this point of view; the earnings of female migrants there are significantly higher than males.

Majority of Georgian migrants (more than 70%) while being abroad were helping their families in Georgia. Despite their sex Georgian workers send about 27% of their earnings to their families in Georgia. The average amount of remittances according to our survey composed 288.2 GEL per month for total sample of migrants, who were sending money to their families in Georgia. This is a sum that may provide families in Georgia with the bare subsistence only. But these remittances allow many families in Georgia to survive on the background of massive unemployment and lowest level of local incomes in the country. This is significant contribution to the overall stability of socio-economic environment in Georgia.

Another indicator which may be used to evaluate Georgian emigration abroad is the National Bank of Georgia’s statistics on remittances sent to Georgia from 23 countries. In the first half of 2007, according to the amount sent to Georgia Russia remained on the first place, followed by the USA, Spain, Greece, Cyprus, UK, Austria, Israel, Ukraine etc. In this regard interesting information could be found in statistical overview of interviews conducted by IOM’s Migration Resource Centers in the period from July 2006 to march 2008. According to this source among the potential migrants men comprise majority (54.64), almost 80% of them are under the age of 50. 20-25 year olds’ group comprises 22.76%, half of them with university degree. According to their profession among respondents majority were from education and medical sectors (18.09 and 10.97)  they are followed by exact,  social sciences and engineering/architecture  (8.71%; 8.35%; 7.89%) students are the next (7.38%). Many of them are with more than five years of  working experience. (42.49%). More than half are officially unemployed, but not registered as such. 27.37 % of them are willing to work as caregiver. 24.65% are ready to take any job they can find. These groups are followed by groups of people that prefer service, engineering/ technical and agrarian sector.
 
Survey conducted in 2005 shows that 7% of emigrants left their country to study abroad, 78% for economic reasons and 1% were asylum seekers. Among them 58.7% were males. But they are in majority only in CIS countries. Married are more then singles. Besides women are more likely to return than men. Leaders according to the quantity of emigrants are Tbilisi, Adjaria, Guria, Imereti and Kakheti regions. It should be mentioned that preferences regarding countries of destination may differ from region to region. (Russia is most popular country of destination in Javakheti, for Kakhetians –Turkey and Cyprus etc.)

Tendency to migrate is very high among younger people (65-70%) mainly because of socio-economic reasons, low salaries, unemployment. This once more reminds the need of efficient policy of employment of people of this age group. Despite that older people are frequently discriminated (that is obviously negative thing) that does not make younger peoples life much easier. Young people (under the age of 30) comprise 1/3 of all unemployed and 73-74% of them have no working experience at all, that makes harder their socialization and causes inferiority complex more frequently than in the case of older people.

In spite of  steps taken Georgia still lacks structural organization and comprehensive  policy of migration management, that makes state control quite difficult in this sphere. Problems are seen even in case of databases. According to the Department for Migration and Citizenship of the ministry of justice 1.670 temporary and 3.03 permanent residence permits are issued in 2006. In the same year according to the Civil Registry of the same ministry 1.401 temporary and 1.207 permanent residence permits are issued. Besides  as figures show there is a significant difference in the statistics of these two internal units of the same institution. Besides according to the Border Police 43.640 more foreign citizens entered Georgia than exited in 2006. This discrepancy naturally raises questions concerning efficiency of state control.

According to the given statistics Georgia is becoming a country of destination for many foreign citizens that requires special attention to this issue and developing legal or other mechanisms of regulation. Entering Georgia and staying without control, using it for transit purposes and returning in case of deportation labour migrants may cause serious troubles for labour market and problems concerning criminality.

Lack of such policy shows itself in case emigration too. Georgia has no labour agreements concluded with potential countries of destination. There are no labour attachés (officials responsible for work concerning labour market, labour migration and employment opportunities)  in diplomatic missions of Georgia abroad.

The Law on Citizenship (Article 32(B) stipulates that Georgian citizen may lose his or her citizenship if she or he resides abroad for more than two years and fails to register with a Georgian consulate without a valid excuse of doing so. If this provision is strictly applied, Georgian citizens may lose lose their citizenship if they reside abroad illegally and to not want to register for that reason, or even if they reside legally in a country without a Georgian consulate and are physically unable to register. Citizenship may also technically be lost if a Georgian has applied for and received (or has been denied) asylum, and did not register with a Georgian consulate: this may leave him or her stateless, as the law does not address the avoidance of statelessness and Georgia is not a party of relevant international legal instruments.

IOM carried out an assessment of the country’s migration management system from 1 to 5 Oc¬tober 2007. The Assessment Team noted that the Government of Georgia faces several challenges in the management of the flows of foreigners across its international borders and their ensuing stay in the country, be it temporary or for longer periods. It is also important to consider Georgia’s geopolitical situation with remaining instability in the region as well as Georgia’s proximity to the new EU borders of Romania and Bulgaria, which might produce an increase in arrival of migrants aiming in fact to enter the EU, particularly following these countries’ up-coming entry into the Schengen zone.

The overriding factor is that legal migration into Georgia is accessible to such an extent that illegal migration becomes almost a “non-issue”. Some of the more important factors contributing to this are:

- Georgia’s extremely liberal and open policy on migration following its free market policies;
- A very liberal visa regime both in terms of visa categories as well as in relation to visa issuance at the borders – available for practically every nationality;
- No proper inter-agency administrative structure nor a clear-cut inter-agency cooperation in place be¬tween the various ministries and agencies, allocated with competences in different areas of migration management. Ultimately this undermines the objective of dealing with the different immigration issues in a coherent manner;
- The lack of systematic requirements for the issue of residence permits and their categories as well as length of validity – particularly crucial for the residence permits issued on the basis of employment, in relation also to Georgia’s own un-employed population;
- There is no specific work permit system for foreigners in place, meaning that there are no limits to the employment of aliens who obtain residence permits simply on presentation of employment contracts, neither are any particular obligations imposed on employers as regards the employment of foreign¬ers;
- Except for entry and exit no further tracking mechanism for foreigners is in place inside the country to verify “change in status”;
- There is no system in place that would alert Georgian migration authorities of “over-stayers” (both on visa and residence permit expiration);
- There is a lack of detention facilities for irregular migrants;
- There is a lack of funds to enforce deportations, though the caseload is still relatively small;
- The assessment team has noted an excessive divergence in the definition of what is an “irregular/il¬legal migrant” with disproportionately high (criminal) penalties for illegal border crossing, as opposed to limited and lax (administrative) penalties for other immigration offences, such as over-stay

Additionally, the current migration realities and trends are at times not adequately covered by the existing legis¬lation of Georgia. Although the legislation addresses the main phenomena of the migration process, it remains quite basic as it contains just general provisions which do not cover all peculiarities standard to migration proc¬esses. Furthermore, the legal provisions need to be defined in a clearer manner, with an enhanced orientation towards EU requirements certainly being advisable.

In the course of the assessment mission, several high-level officials emphasised that Georgia’s future migra¬tion policy will have to be established with a main focus on the attraction of foreign workers and investors who are viewed as an important “push factor” for the Georgian economic development. in this sense the assessment team noted little interest in dividing economic immigrants between “employed” and self-employed/ investor” categories, concluding that a lack of procedural division between these may in fact lead to unwanted/ unforeseen results.

Currently there is no explicit emigration policy in Georgia, even though policy-makers are well aware of the economic and demographic effects of the large-scale out-migration of Georgians of productive working age, as well as the possibly positive effects of remittances and diaspora involvement. The assessment team was informed that the Georgian government would promote the return of Georgian nationals to the country, al¬though as far as could be established this has not gone beyond attempts to foster closer relationships with the Georgian diaspora.

It is also worth mentioning that one part of article 191 of the Administrative Code of Georgia says that the il¬legal stay in the country from ten days up to three months makes an alien subject to a fine of 180 Georgian Lari (GEL), whereas the illegal stay for more than three months is subject to a monetary fine of 360 GEL. This means that an alien may illegally stay an additional ten days in the country without being fined or imposed any sanction. This regulation is legally inadequate and problematic.

The labour activities of aliens in Georgia are not limited. There are no legal norms in Georgia that regulate the issue of obtaining work permits before starting labour activities and other related issues.

Despite the need to establish a unified migration data bank, as foreseen by Article 66 of the Georgian Law on the Legal Status of Aliens, no such base has been established to the present.

In the current migration law, all aliens who do not require a visa to enter Georgia have the right to stay three months in the country without visas, at which time they are obliged to apply for a temporary residence permit. In a similar fashion, aliens who do need to have a visa for entering Georgia are obliged to apply for a resi¬dence permit before the validity of their visa expires. When receiving the permit the aliens are automatically registered according to the place of residence that they indicated in their application. Referring to the above suggested visa categories, it should not be legally possible for persons not under the visa free regime to obtain a residence permit (i.e. change of status) if their original entry was in the above categories “A” and “B” with the exception of humanitarian grounds of course.

However, there is no control mechanism in place to monitor whether aliens do indeed apply for a residence permit upon expiry of their visa or their visa-free stay, and whether they apply for a renewal of their residence permit once the current permit expires. As a result, no information is available on the number of aliens over¬ staying their right of stay and hence no action is taken by the government to promote either regularization of foreigners staying in Georgia on an irregular basis or to facilitate their departure from the country.

The government needs to fully implement the Protocol on Smuggling of Migrants by Land, Sea and Air, sup¬plementing the United Nations Convention Against Transnational Organized Crime.

There is clear need to protect labour migrants abroad by increasing efforts in relations with countries of destination, concluding labour agreements, appointing labour attaches etc.

Analysis shows that migration, despite consequences, is stimulating for relatives and family members of migrants, as well as for others and for migrants themselves. Majority of returnees are ready to take a risk once more and leave homeland. It is obvious that this is caused by hostile socio-economic environment that pushes them out of the country.

Legislative/Socio-Economic push factors

It is commonly accepted that frequent pre-conditions of becoming a victim of traffickers are various forms of grave violations of human rights of future victims in their home country and among them labour exploitation.
In February 1995 Parliament of Georgia ratified International Labour Organisation Convention concerning Forced or Compulsory Labour ( No. 29) and in May 1996  Abolition of Forced Labour Convention (ILO No. 105). According to the convention No. 29  the term "forced or compulsory labour" shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily. Articles  of convention N 105 state:
Article I
Each Member of the International Labour Organisation which ratifies this Convention undertakes to suppress and not to make use of any form of forced or compulsory labour:
(a) As a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system;
(b) As a method of mobilising and using labour for purposes of economic development;
(c) As a means of labour discipline;
(d) As a punishment for having participated in strikes;
(e) As a means of racial, social, national or religious discrimination.
Article 2
Each Member of the International Labour Organisation which ratifies this Convention undertakes to take effective measures to secure the immediate and complete abolition of forced or compulsory labour as specified in article I of this Convention.
No company or any representative of society can be allowed to use forced labour of others.
Forced labour is also forbidden by Article 4 of European Convention of Human Rights and Freedoms.

According to the clarification of the European Court of Human Rights element of forced labor exists when labourer is exacting his work against his will and working conditions are despotic or unfair or are related to the unjustly hard work.

Economic development was impressive  in recent years. In 2007 GDP growth reached 12.4 %  and direct foreign investments 1.6 billion USD. Budget income increased several times. However, those efficiency gains have not, as yet, translated into an increase in employment or reduction in poverty. According to some independent experts unemployment level is more than 23% and share of informal economy comprises from 30% to 60%, that increases risks of forced labour and trafficking for this purpose. Inflation increased in the second half of 2007, reaching an annual rate of 11 % so did food prices too. There are indi¬cations that food prices may have risen far fast¬er than prices on other goods, and food is the main expenditure of the poor.

According to the World Bank classification which considers GDP as main criteria of evaluation, in the account of 2007 Georgia is in the list of countries with income lower than average. According to the US Central Intelligence Agency account of  2007 GDP per capita comprises 4200 USD that is lower than in neighbouring and CIS states.

The macroeconomic improvements have had little impact on agriculture, which employs over half of the population. Agricul¬ture’s share in GDP has fallen from 19.3 per¬cent to 9.7 percent between 2003 and 2007 and agricultural production has declined by approximately five percent in real terms over the same period.

From 2006 the government removed all unemployment assistance programs and instead introduced joint social assistance program for the needy.  The vast majority of social payments are not well-targeted at those who need it most. While social assistance that targets low-income families (as opposed to pensions that targets the elderly) was introduced in 2006, the value of the payments has not been increased to match inflation. In addition, total income-targeted payments remain relatively low compared to total pension payments. In 2008, the total cash payments made to the extremely poor, at about GEL 80 million (USD 52.6 million), is only about one eighth the amount of the Govern¬ment will distribute in the form of pensions. This is not a very effective way of targeting so¬cial assistance if the objective is poverty reduc¬tion, since pensioners are fairly evenly distrib¬uted among both rich and poor households.

Probably the most important factor in human life – healthcare- is a kind of luxury for many Georgians. To discover for how many people healthcare is reachable GTUC conducted special survey. According to it for 78% of  interviewed people admitted that medical service is too expensive in comparison with their incomes and only for 8%  it is acceptable.

This low incomes and irrelevant, high prices cause unloaded hospitals and high death rate. Transparency International-Georgia conducted survey in 2007-2008 according to which Georgian hospitals’ load comprises 32.3%,  that is much lower than in CIS and EU states. According to government officials medical personnel is going to be dismissed with this artificial motive that will inevitably increase unemployed people’s army in Georgia. The other main concern expressed is with hospital privatization. The principle of priva¬tization is not generally rejected, but there is widespread apprehension about the likely long-term consequences of allowing pharmaceutical companies to own both hospitals and (prob¬ably soon) primary healthcare when oversight mechanisms remain weak. There is a risk that this might not just generate super-monopolies in the healthcare sector, but it might also cre¬ate conflicts of interest. Properly regulated, this problem might be offset, but the regulation mechanisms do not currently exist. According to CIA report birth and death rates in Georgia are almost equal that negatively affects demographic trends.

Georgia spends less on education (less than 3% of GDP) than most CIS countries. Within the existing financial restraints, the main issue is equity. Al¬locating funding to students entirely on the ba¬sis of ability (test scores) naturally favors those who need the financing least, since wealthier students, who go to better schools and who can afford private tuition, tend to score highest. This problem is exacerbated for students from ethnic minorities, for whom Georgian is a sec¬ond language. This can keep many talented but poor young people out of higher education and eventually pushes them out of the country.

Market liberalization of legislation aimed to revive economy but on the other hand it contributed to inequality and poverty, without relevant social security guarantees. In comparison with 2003 from 2004 quantity of employed workers has been gradually reducing. Between 2004 and 2006 number of  contract employees fell with 2.5%, and of self employees with 3.3%. Still employed people are ,,enjoying” increased tax pressure. In 2007 instead of removed social tax that comprised 20% income tax increased from 12% to 25%.

Contract employees comprise 33-34% of all workers and most of them are concentrated in state service sector. Short term contracts and massive dismissals of workers from state service and avoidance of payment of compensations became widespread practice. In the same time there is no unemployment benefits any more. In spite of frequent short-term contracts’ constant renewals, this practice puts workers in instable situation, keeps them under permanent fear that negatively affects their working ability and productiveness.

ILO defined it’s attitude towards such contracts by adoption of Termination of Employment Convention, 1982 (N158) (It is not ratified in Georgia, but it is some kind of moral criteria that contrasts with Georgian reality) and by recommendation N166 on Termination of Employment initiated by the employer. According to this convention contract should not be terminated without legal grounds concerning working ability or behavior of employee, or necessity of  production.

Recommendation N166 also provides that contracts with defined term should be limited by cases when labour relations can not be established otherwise according to it’s conditions or interests of worker. In other cases temporary contracts should be considered as permanent.

According to Georgian Constitution “Labour shall be free.”. Unfortunately this principle is not adequately implemented in reality.

Georgia has entirely liberalized employment and work relations. Nowadays the only regulator of this sphere is labour market.  Approximately 2/3 of working people are self-employed. Lasting unemployment is common. Situation is worsening by inefficient labour market management policies and interruptable social security system.

In 2006 program of professional training has been adopted, that aims eradication of disparity between professionalism and demand of workforce. From 2005 Ministry of Labour, Health and social affairs is responsible for employment issues, but effectiveness of employment system is low, due to scarcity of resources and old-fashioned management style.   

On May 25, 2006, the parliament of Georgia had passed a new Labour Code. The new Labour Code in Georgia is most liberal and calls for the protection of employers’ rights and interests to the detriment of the rights and interests of employees and workers, limiting their protection. .
Because of such liberalism Georgia appeared in the first ranks of World bank’s “doing business” report published in September 2007, but this very indicators that caused such a high position for Georgia became a subject of criticism of WB Independent Evaluation Group. DB is built on the premise that these firms are more likely to flourish if they have to abide by fewer, cheaper, and simpler regulations. DB assesses the burden of regulation on firms without aiming to capture the social or economywide benefits that regulations yield, such as safety, environmental protection, worker protection, or transparency.

According to article 6 of the Labour Code, work contracts can be concluded not only in written form but also verbally. In case of a oral agreement, to which a worker / employee may agree because he/she has no better alternative of work,, an employee has practically no possibility to confirm conditions of the contract and even its existence, if it becomes an object of dispute. It also contains threat for migrants in Georgia, providing that trafficking and forced labour could be presented as normal work relations in the framework of oral agreement.

Right to strike is provided by the Labour Code in the case of conflict of rights but not of conflict of interests. It should not be longer than 90 days and previously requires action not longer than 3 days to warn employer. Solidarity actions is not allowed. Employees previously warned about termination of work relations are not allowed to strike either.

Labour Code states that, an employee should be given a salary once a month , terms of payment are not regulated and depend on a free will of the employer. Minimal wages determined by a Decree of President of Georgia is only 20 GEL per month. Although Pact of social, economic and cultural rights requires reimbursement that ensures decent life for worker and his/her family. Minimal wages have to be fair and adequate for work.

The Labour Code neither takes into account the concept of forced labour, nor explains what can be considered as forced labour. Moreover, the new Labour Code consists of only 56 articles, very often establishes common and unclear provisions.

Labour Code does not imperatively determine number of working hours and employer can set any number of working hours as a working period per day or per week. According to a new Labour Code, a definition of labor exploitation practically ceases to exist, as even a 12-hour working day for minimal wages is absolutely legal. The abovementioned provision allows employers to consider more than 41 hours of working time per week, even 12 hours a day.

Georgian Labour Code considers employers right for unessential changing labour conditions of the employee. Subparagraph “b”, Paragraph 3, of the article 11 of Georgian Labour Code, gives employers the right to change the time of starting or finishing work in 90 minutes interval, and gives the employer the unfair right to use overtime work labour of the employee. In the assumption of abovementioned standards of the Labour Code, all this is deemed as unessential change of labour conditions and does not require any agreement or additional payment.

The elements of unfair using of employees labour rights are observed in article 17 of the Labour Code. It regulates the legal provisions referring to overtime work.   By these provisions, legislator separates the group of persons, who cannot be assigned to perform excessive labour. These are pregnant women, women being in postpartum period or persons with limited ability to work. The legislator highlights the right of employers to provide employment of all other
persons, other than this separate group, by overtime work. However, chapter 4 of the same article declares that the agreement between the parties refers only to specific conditions of overtime work but not to an agreement about the will of the party to perform such kind of work at all. The article contradicts not only article 2 of the Labour Code, which declares that labour relations originate only after showing free will by the parties, but also the constitution of Georgia, which recognizes that Labour shall be free.

Maximum length of overtime work is not limited, imperatively do not recognizes right of additional reimbursement of overtime work. (although this is the imperative of European Social Charter ratified by Georgian parliament in 2005) This issue should be regulated by the agreement between employer and employee or by the collective agreement, that is difficult to achieve in practice.

Georgian labour code is criticized in recent ILO report. Pursuant to section 5(8) of the Labour Code, the employer was not required to substantiate his/her decision for not recruiting the applicant. According to sections 37(d) and 38(3) of the Code, the employer had a right to terminate a contract at his/her initiative with his/her employee provided that the employee was given one month’s pay, unless otherwise envisaged by the contract. While the Government refers to the general prohibition of anti-union discrimination provided for in section 11(6) of the Law on trade unions, in light of the absence of explicit provisions banning dismissals by reason of union membership or participating in union activities, the legislation is unclear as to the regulation of cases of anti-union dismissals and does not offer sufficient protection against anti-union dismissals as called for by Articles 1 and 3 of the Convention. While the new Labour Code repealed the Law on collective contracts and agreements and the Law on collective labour disputes, it did not regulate all aspects of freedom of association and that it appeared that by repealing the abovementioned legislation, there were numerous aspects of freedom of association that would not be sufficiently protected in law. The minimum trade union membership requirement is set at 100. The Government’s indication is that this requirement concerns establishment of trade union confederations (associations) and that the legislation does not provide for a minimum membership requirement for establishing a trade union, while 15 members are required to establish a primary trade union, But section 2(9) of the Law on trade unions refers expressly to “trade union” and not to “confederation of trade unions”, while section 3(9) refers to the “primary trade union” and to the minimum requirement of 15 members.

According to section 13 of the Labour Code, the employer (unilaterally) is authorized to specify the duration of a business week, the daily schedule, shifts, the duration of breaks, the time and place of remuneration payment, the duration of and the procedure for granting a leave and unpaid leave, the rules for complying with labour conditions, the type and the procedure for work-related incentives and responsibilities, the procedures for consideration of complaints/applications and other special rules subject to the specifics of the business of the organization. Chapter XII of the Code (sections 41-43), which concerns collective labour relations. Under section 41(1), “a collective contract shall be concluded between an employer and two or more employees”. According to section 42(1) and (3), for the purposes of concluding, changing or terminating a collective contract, or for the purpose of protecting the employees’ rights, the unions of employees act through their representatives, defined as any physical person. Furthermore, in accordance with section 43(2), an employee may conclude individual and/or several collective contracts with one employer. Pursuant to subsections (4) and (5) of the same section, if one of the parts of the contract is annulled on the initiative of either party, this could cause the termination of labour relations pursuant to the Labour Code; and the existence of collective contracts does not limit the right of the employee or the employer to terminate the contract. The sections 13 and 41-43 read together are in contradiction with the notion of collective agreements in the sense of Convention No. 98, i.e. agreements regulating terms and conditions of employment negotiated between employers or their organizations and workers’ organizations; moreover, the legislation seems to put in the same position collective agreements concluded with trade union organizations and agreements between an employer and non-unionized workers (sections 41-43). Furthermore, with the Law on trade unions containing one general provision on the right of trade unions to collective bargaining, and the Law on collective contracts and agreements repealed, it is clear that collective bargaining is not sufficiently regulated (section 41 even stipulates that collective agreements follow the same principles as individual agreements).

Rights of workers executing heavy work, work in dangerous conditions are not properly guaranteed by Georgian legislation. There is no sufficient provisions and mechanisms to protect their safety and ensure their lives in case of injury or  to ensure wellbeing of their families in case of their death.

Unlike the case of labor exploitation, when even the law does not protect interests of the employees, in case of safety of working conditions – legal provisions exist but there is no mechanism of their implementation in practice.

Until 2005, monitoring safe working conditions in working places was the competence of Labor Inspection Unit, under the Ministry of Labor, Health and Social Protection. In 2005 the Unit was liquidated and its functions were transferred directly to the Ministry. Nowadays only one labor inspector exists on the territory of Georgia, who has no instruction or regulation of labor inspection. Therefore, no one controls working conditions in factories or in other working places. Analysis of accidents in various enterprises shows that minimum attention is paid to this issue. According to the Ministry of Interior in 2006 62 workers died in various organizations and enterprises of Georgia and 27 dead bodies were found without a sign of violence. Quantity of injuries in 2008 in comparison with 2004 is increasing by 65% speed.

For that reason situation in Georgia remains a matter of concern for GTUC, ILO and other international organizations also for The US State Department that criticized certain errors in Georgian legislation concerning working time, rights of pregnant women etc.

Due to these miscalculations Georgia may even lose GSP+ trade regime with EU. The 2006 labour code contradicts both EU standards and the European Social Charter that the country ratified in July 2005, on a number of fundamental issues such as the duration of overtime work and termination of employment. The Code is to be revised accordingly if Georgia wants to benefit from the GSP+ scheme in 2009. Besides EU sees no progress  concerning social dialogue.

There are Criminal Code provisions (Article 169. “Violation of Labor Legislation”; Article 170. “Breach of Labor Protection Rule”) against certain labour rights violations but in practice, the Courts have considered very few cases under these articles. According to a statistical data of the Ministry of Internal Affairs, only one case of violation of labor legislation and six cases of breach of labor protection rule were submitted to the court during 2005-2007 years, while the investigation started on 100 cases. None of the cases submitted to the Court referred to labour exploitation.

Georgia has no legislation regulating private employment agencies and labour migration. The Labour Code of Georgia gives only a notion of private employment agencies; establishing of such agencies is realized according to the “law on entrepreneurs” of Georgia. The agencies do not need any permission to carry out their activities. The labour Code requires only establishment of state registry for that kind of agencies within 6 months from it’s entry into force. Even this provision has not been enforced . In spite of ratification of ILO N181 convention on Private Employment Agencies there is no sufficient legal instrument for it’s enforcement.

Currently migration, including labour migration and related issues are not properly regulated neither on legislative nor on institutional level. Accordingly, government cannot provide Georgian citizens with opportunities of legal labor migration even in neighboring countries. We can assume that it is one of the main reasons for a high level of illegal labor migration, which on its own creates a fertile soil for human trafficking.

 Trade Unions role

Trade unions are and always have been at the forefront of the fight against inequality and exploitation. In a new trade union internationalism, the fight against forced labour is an essential component on the trade union campaign for decent work. Forced labour and especially trafficking is modern day slavery and a result of the ever increasing demand for cheap labour causing downward pressure on employment conditions and wages, causing labour migration and increasing vulnerability of workers. Trafficking leads to and is concurrently a consequence of downward pressure on wages and labour conditions, a vicious circle that needs to be broken.

Trade unions constitute a specific sector of civil society. They have affiliates and members in all areas and industries which places them in a privileged position to reach out to all workers, formal as well as informal, document as well as undocumented. Trade unions worldwide are doing valuable work to fight forced labour and trafficking.

Trade unions in Georgia are passing trough hardships of the current transitional period. In spite of heavy loses they survived with some 26 GTUC member organizations with more than 200 000 members. Currently the Confederation is leading player of civil sector in the field of labour rights protection not associated with any of political powers.

Unfortunately Georgian trade unions experience in the field of combat against trafficking and migrant workers’ protection is very limited. In spite of difficulties TUs still maintain sufficient resources to play more active role in this regard. It is even more important today when there is clear tendency of decline of trade unions’ rating in the world and above mentioned problems are unsolved, many are still growing that is very painful for Georgians that are experiencing difficulties of transitional period towards market economy and globalization. In these circumstances it is in trade unions interests to increase their efforts in this field, protect their actual or potential members from dangers of forced labour and trafficking and promote their integration with local society and their reintegration in case of repatriation.

Main directions for action

According to their aim TUs should focus on Trafficking with purpose of labour exploitation

Union capacities are not fully exploited nor recognized by other stakeholders. This situation needs to be improved.

Informal economy workers are more likely to be caught up in forced labour as they are
less organized and therefore less protected. They need to be informed of and protected
against the risk of forced labour and trafficking. These issues need to be incorporated in
general trade union policies towards the informal economy.

Adapt structures to integrate migrant and informal workers. Informal, migrant and
especially informal migrant workers are most vulnerable to exploitation in forced labour.
Organising them would offer them the most effective means of protection. The informal
economy is growing faster than the informal economy. Trade unions should on the one
hand promote formalization of the informal economy and on the other offer them the
protection they deserve as workers. Trade unions should use the existing
institutional framework to incorporate informal workers and at the same time enhance
their outreach work to informal and migrant workers addressing their specific situation
and needs. Migrant and informal workers should be integrated in trade unions and within
this structure enabled to speak for themselves through direct representation. In trade
unions there is no room for discrimination. Eradicating forced labour can only be
achieved by guaranteeing all workers the right to organize and bargain collectively. Such integration has to be promoted among legal/irregular workers abroad using TUs’ international contacts

Migrant workers risk being trafficked to their country of destination. They should be
protected by trade unions from either or both their countries of origin and destination.

The existing trade union work against trafficking needs to be integrated in a countrywide and in an internationally coordinated approach

Discrimination is one of the main causes of forced labour and pre-condition of trafficking. The risk of forced labour for vulnerable groups should be integrated in discrimination policies. Particularly policies against trafficking should be gender based

Add forced labour to the issues in bipartite and tripartite negotiations and agreements.
Campaign and push for clear legal definitions and adequate sanctions. Trade unions should place ratification and implementation of  sufficient legal instruments at the top of the legislative and political agenda and include special provisions on forced labour in collective agreements and negotiations.

Ensure political and financial support for the development of policies against forced
labour at all levels and the appoint officers, committees or units to implement them.

Document, identify and publicly highlight cases of forced labour and trafficking without endangering victims. Trade unions could add to national mapping and data exercises by using their access to workers to help identifying risk groups and areas.

 Officers working on these issues should be linked together in order to exchange
knowledge and experience. Trade unions should also be encouraged to link up
their activities with friendly organizations and benefit from their experience in different
fields. Non-governmental organizations have taken on an increasing role in combating
forced labour issues, especially trafficking and are in many countries recognised as
meaningful stakeholders. Complementary alliances will add to the integrated approach
needed.

Reach out and provide direct support. Establish contact with victims and help to
rehabilitate them and introduce them in formal decent work in cooperation with other
trade unions and friendly NGOs. Explore alliances with unions and relevant organisations
abroad and liaise with international, regional, sectoral, national and foreign trade unions,
cooperation. More bilateral agreements should be signed between trade unions in sending
and receiving countries. In order to reduce migrant and other workers’ vulnerability trade
unions should increase access to information concerning employment opportunities,
working conditions and regulations abroad using particularly electronic information
sources. These electronic sites should be linked together, especially those of trade unions
from countries of origin and destination.

Raise awareness of the issue of forced labour and trafficking among staff, members and
public and campaign for decent work to reduce the economic push factors for labour
migration such as discrimination, unemployment, low and irreg