Land and farm owners are never held criminally responsible, although foreign law provides for heavy penalties, suffer mere administrative offenses. Only intermediaries are judged.
For almost ten years there is a law that provides for prison penalties for the crime of “using the activity of foreign citizen in an illegal situation”, But no one has been convicted yet. In practice, The action of justice has been limited to pursuing temporary labor companies that provide the migrant labor and whose partners are often acquitted or disappear, leaving behind debts to the tax authorities and social security and workers living in miserable conditions. Who is on the ground (read the next page) considers that until the entire hiring chain is not responsible for migrant exploration networks will continue with open ground.
Consulting official statistics in the Directorate-General of Justice Policy, there is no registration of any conviction under the shelter of article 185a of the legal regime of entry, Permanence, Departure and removal of foreigners from the national territory (lei 23 of 2007) that foresees prison penalties up to six years (or more in case of recurrence) for the crime of “using the activity of foreign citizen in an illegal situation” to “who, regularly, use the work of foreign citizens who do not hold residence authorization or since they enable them to remain legally in Portugal ”. The article, added in 2012 to the law that, in 2007, added several European directives, also seriously penalizes “the employer or user of the work or services of a foreign citizen in an illegal situation, with the knowledge that he is a victim of criminal offenses linked to human trafficking”. As well as if “particularly abusive or degrading working conditions” are verified.
“Employer or User”
The concept of “employer or user of labor” would apply both to temporary employment companies that provide illegal labor and to owners, managers or firms that own the land where she works. But, apparently, has not been an option for authorities investigating this type of crime, as jurists explained to JN, judicial sources and others linked to the investigation. This despite the succession of cases, The most visible of which, thepr, the first- Minister to Odemira, where a covid outbreak revealed the degrading conditions in which thousands of migrant workers lived there, legal and illegal. The same sources advance as possible reasons for the absence of convictions - there is no available assessment of the application of the article. 185A in this perspective-the fact that other typifications are chosen by the authorities in the crime surveys. Usually opt for crimes of assistance to illegal immigration, trafficking in people or slavery and always focusing on organized networks activity, the investigation at the door of the places to which the labor is intended.
Always as witnesses
Another explanation may have to do with the devaluation by the Public Prosecution Service of this legal norm or the difficulty in proving the existence of this crime and directly responsible who benefits from it the most. Oftentimes, victims, The weakest link in the entire chain, go back in the complaints or disappear, pressed, And who watches the crimes (neighbors or co -workers) refusal, for fear or not to compromise the breadwinner, resulting in the inquiry in archiving or acquittal. In the few cases where there are defendants or accusations, This crime ends up consumed by the rest or in acquittal in higher instances. What removes any sense from the law, As the emptiness at the statistics of justice attests. But even in the crimes of assistance to illegal immigration and trafficking in people, those who most often reach the courts, the owners of land or agricultural explorations appear in the process only as witnesses, the temporary work companies and their holders are the defendants.
In Odemira the ACT detected 1600 Infringements in two months
Covid's outbreak among migrant agricultural workers detected in April, in Odemira, came to expose the inhuman conditions in which thousands of them lived, legal and illegal. Carlos Graça, director of the unit of the coast and low Alentejo of the authority for the working conditions (ACT), revealed to Lidador News (LN) that only “between May and June were identified 1600 infractions targeted by offenses ”in the municipality, especially non -declared work and lack of statements to social security, workers and doctors insurance. Also the Foreigners and Borders Service (SEF) registered there, at the end of October, Nine inquiries for illegal immigration aid crimes, People's trafficking and document falsification. Between 2018 and 2020, only for the first two crimes, 105 People were convicted. The Human Trafficking Observatory points to the agricultural sector as the main destination of more than 80% of immigrants who arrive in Portugal.
“Laws exist to be used”
MP and lawyers consider that the law of 2007 is not used and that proof is difficult to do Alberto Matos, director in Beja of the Solim Association – Solidariedade Imigrante and district coordinator of the Bloco de Esquerda , has no doubt that “without direct accountability of the entire contracting chain, the enslavement and exploitation of labor will continue”. But the issue is not simple and there is no definitive explanation why the aforementioned article 185A of the Entry Legal Regime, Permanence, Departure and removal of foreigners from the national territory, which seems to have been created to encompass this entire contracting chain, no conviction has ever resulted. The Human Rights Commission of the Bar Association considers that "the Public Prosecution Service does not seem to be undermining the facts as evidence of the crime of" using the activity of foreign citizen in an illegal situation "". And may “perhaps this explain the absence of convictions in large part”. Adam Carvalho, President of the Association of Prosecutors, It admits that there is “some difficulty in demonstrating that users of foreign citizens' work knew that people who were working on their agricultural explorations were not visa or permission.. They are supplied by temporary contract companies or similar and “the farm owners take refuge in this fact to assert their ignorance”, Explain. “Laws exist to be used”, says the judge. “I am convinced that, given the current public perception of this reality, it will be more difficult for farm owners to hide in the contractual relationship and equally, Both the MP magistrates and the judges will no longer accept this defense as credible”. To Belchior de Sousa, lawyer in Ferreira do Alentejo, Solidarity liability is also difficult because the final user makes “a service contract and not an employment contract”. “It makes all the difference. (…) They are not required to know who they are.
Criminalization: Proposal of the chumba and fall of the government crashes a new law
In November, The Parliament Chumbed a Left Block Bill that provided for the direct responsibility of the final contractor of the workers, legal or illegal, and not solidarity as it happens now, in case of violations of labor or criminal legislation. PS, PSD, CDS-PP, Arrives and liberal initiative voted against. Before falling, the Government approved legislation that criminalized undeclared work with a sentence of up to three years in prison. Among other things, required “daily registration of workers assigned or placed by other companies on farms and construction sites”. About this matter, nor AHSA – Horticultural Association, Fruit growers and flower growers of Odemira, Neither OLIVUM – Association of Olive Growers and Lagares do Sul wanted to comment.
Teixeira Correia/ AntĂ´nio Soares
(journalists)
