Att arbeta under tvång - Några straffrättsliga och arbetsrättsliga aspekter på tvångsarbete i Sverige
Sammanfattning: Sweden faces a problem that no one could have predicted a few years ago, which is that people are exploited for forced labour in the West. The purpose of this essay is to make reference to both criminal and labour law in order to describe the regulations, the current practice, and to observe the difficulties in implementation that exist when introducing legislation in the campaign against forced labour. Sweden has ratified several international conventions prohibiting forced labour. Nationally, forced labour is primarily regulated in 4(1) a of the Penal Code and the perpetrators convicted of trafficking crimes in relation to forced labour can be sentenced to imprisonment for a minimum of two years and a maximum of 10 years. In labour law, there is no law that explicitly prohibits forced labour, but it is prevented indirectly through labour legislation, combined with collective agreements and individual employment contracts. The criminal law constitutes public law and it is, above all, in the State's interest to prevent and combat crime. Employment law is civil law with the function to create and maintain an efficient labour market. The main purpose of a labour dispute is to obtain financial compensation. The difference between the various types of legislation may be of significance in relation to the approach of combating forced labour. The court process will be different depending on whether the forced labour is addressed by prosecution or alternatively, by actions from the labour organisations. Human trafficking is a crime that is dealt with by public prosecution, which means that it is a prosecutor that presses charges. The prosecutor has a duty to conduct public prosecutions and is therefore expected to ensure prosecution if sufficient grounds exist. In a criminal process, the police have the power to gather evidence, using for example arrest and house search. With regard to the relationship between an employer and a worker, there is not, in a labour dispute, the same opportunity to gather evidence. Furthermore, labour disputes do not have the same remedies as in criminal cases. While the court in criminal cases can impose very stringent sanctions such as imprisonment, the sanctions in labour disputes are the same as in other civil proceedings. Another difference between the process in criminal cases and labour disputes is that persons exposed to forced labour do not pay any costs regardless of the outcome of the criminal trial, while the losing party in a labour dispute may be required to pay both his and the other party's costs. The burden of proof is set lower in labour disputes than in criminal cases. Employment disputes can also be resolved either by industrial action or alternatively, as a result of the threat of industrial action. In 2010, 52 cases of human trafficking crimes for those other than ones 6 motivated by sexual purposes were reported. Of these only 8 were prosecuted. Both criminal and labour representatives testify that there are a lot of unknown cases. 4(1) a of the Penal Code is difficult to apply and therefore the prosecutors experience problems in obtaining adequate evidence. In labour law, the trade unions have difficulties to agree collective agreements, and to recruit members among exploited workers. It is also difficult for the authorities to ensure that the satisfactory conditions for foreign companies and workers in Sweden are adhered to. The freedom of movement within the EU also limits the ability to control such activities. Since both the criminal and labour law regulate forced labour, it is of interest to investigate whether these regulatory systems are competing. Theoretically, there is no procedural obstacle in that forced labour is tried in both a criminal process and a labour dispute. Moreover, the purposes of the regulatory systems are not the same. Because of this it can be concluded that the regulatory systems do not compete. It is suggested that labour law, in practice, complements criminal law because there are very few cases that fall within 4(1) a. In relation to the cases that have been brought to prosecution, it is very difficult to prosecute successfully. This means the labour law must then be utilised in order to address these injustices. Our essay presents a set of proposals for action. For example, we believe that the Work Environment Authority should receive more resources, to be able to, within the limits of its mandate, more actively exert supervision. Furthermore, we believe that the criteria of 4(1) a of Penal Code should be revised and that the application be simplified as forced labour has not been defined in Swedish law. In conclusion, although there are regulatory tools and approaches to combat forced labour, it is not effectively controlled in Sweden. In summary, public law criminal law, are currently unable to combat forced labour and therefore the responsibility for this is in practice undertaken by using the labour law. However, labour law does not combat forced labour efficiently. Therefore, it is questionable if Sweden is able to fulfil the international agreements that we have undertaken.
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