Ini kasus TKW Indonesia di Berlin yang melibatkan diplomat Arab Saudi.
Jika bisa terjadi di Berlin tentunya bisa terjadi di mana saja di
dunia. Apakah kita dapat membantu mereka? dan bagaimana?
Berita dari Spiegel Online kemaren (27 Juni 2011).
http://www.spiegel.de/international/germany/0,1518,druck-770685,00.html
License to Exploit
Servant Abuse Case Could Challenge Diplomatic Immunity
By Andreas Wassermann
Diplomatic immunity was originally meant to protect embassy personnel
from arbitrary harrassment. But a new case in Berlin, involving the
alleged abuse of a Indonesian servant, makes it clear that human
rights sometimes get lost in the shuffle. The case could go to
Germany's highest court.
Where else could Devi Ratnasari have gone? Should she have gone down
to the nearby river and jumped in? Or perhaps to the junkyard lying
across the bridge behind the house? Or to the four-lane street where
the No. 139 bus stopped? And what then? She doesn't speak a word of
German, and she also didn't have any money for a ticket.
Instead, the petite Asian woman opted to stay in her employer's
apartment on Boca Raton Street, in northwestern Berlin. For more than
a year and a half, laboring seven days a week, usually until late into
the night. She was humiliated, kicked and beaten with a stick -- like
a serf. That, at least, is what she told the police.
Devi Ratnasari, not her real name, is from Indonesia. The 30-year-old
had been working as a household employee for a Saudi Arabian diplomat
until eight months ago. And if it hadn't been for Nevedita Prasad at
Ban Ying, a center focused on combating human trafficking, she would
likely still be slaving away in the diplomatic residence -- just like
so many other women in Berlin from Indonesia and the Philippines.
The world of Berlin's diplomats isn't just one of pompous receptions,
luxury vehicles and royal status. It's also a world in which many
domestic employees are apparently treated horrifically.
Persona non Grata
Of course, there are plenty of statutes on the books in German that
aim to protect employees from mistreatment and employer
high-handedness. But they are toothless when it comes to shielding
those working for diplomats. Diplomatic immunity, set out in the
Vienna Convention on Diplomatic Relations of 1961, makes embassy
employees untouchable. They are immune from criminal prosecution, and
civil suits against them are usually unwinnable. At worst, the Foreign
Ministry can declare a diplomat persona non grata and force them to
leave the country.
The intention behind such immunity was to safeguard diplomats from the
arbitrary, state heavy-handedness or foreign laws. It allows a German
attaché working in Saudi Arabia, for example, to consume alcohol
without having to fear summary imprisonment. Diplomatic immunity was
never meant as a license to break the law with impunity, even if many
embassy employees see it that way. Indeed, among the favorite habits
of diplomatic passport holders the world over is that of ignoring
tickets for traffic violations.
Such minor offences are mere annoyances, say Nivedita Prasad. But
"when it comes to inhumane working conditions, it is insupportable."
Prasad, a social worker, is the head of the Ban Ying, located in the
heart of Berlin. The organization -- its name means "house of women"
in Thai -- is financed by Berlin's city-state government and provides
support to prostitutes, mainly from Asia. For the past decade, it has
also been assisting foreign household employees of diplomats. Prasad
has heard a lot of stories about what happens behind the polished
facades of embassies, official residences and diplomats' apartments.
The stories include exploitation and harassment -- and sometimes even
physical abuse.
'A Higher Good'
Beyond the embarrassment it could cause the Saudi Arabian Embassy,
Ratnasari's case also may be perfectly suited to make legal history.
That, at least, is the hope of Prasad, Hamburg-based lawyer Klaus
Bertelsmann and the German Institute for Human Rights, which is
financing the legal battle.
They want to make it possible to prosecute diplomats in instances of
human rights violations, and are prepared to follow the case up to the
Federal Constitutional Court, Germany's highest legal body, or to the
European Court of Human Rights. "Human rights are, also from the
perspective of international law, a higher good than diplomatic
immunity," says Bertelsmann.
Ratnasari first told her story last November, in the offices of Ban
Ying. She says that an agency in Jakarta first sent her to work as a
household employee in the United Arab Emirates before transferring her
to Saudi Arabia. Then, in April 2009, she accompanied her Saudi
employer to Germany. He was to serve as an attaché at the embassy, she
as a servant in his apartment.
But it wasn't just him she served; it was everybody, she claimed. She
recounted having to serve the diplomat, having to take complete care
of the diplomat's wheelchair-confined wife and of having to do
everything for their four daughters -- ranging in age between 12 and
17 -- including putting on their shoes.
Systematic Abuse
She says that her workday would begin at 7 a.m. and often only end
long past midnight. She says she was forced to sleep on the carpeted
floor of the daughters' room, and that she was only given a pillow and
a thin sheet. In 19 months, she didn't get a single day off, she says,
and was only paid a single time, when she was given €150 ($213) for
Ramadan, the Muslim holy month of fasting.
When she spoke to the police, Ratnasari also described systematic
abuse and humiliation. She said that the diplomat's wife once threw a
perfume bottle at her head, that she was regularly beaten on the hands
and forearms with a stick, and that she was occasionally punched on
her head and brow. She said that the diplomat expressly allowed
everyone in the house to beat her, including the wife, the older
daughters and the 5-year-old son.
Phillip von Berg, a lawyer from Stuttgart whose firm has represented
the Saudi Embassy for years, rejects the accusations as baseless. But,
baseless or not, they are all included in a 25-page complaint that
Bertelsmann, the plaintiff's lawyer, filed at the Berlin Labor Court
in the spring. The complaint demands €32,000 in back pay and at least
€40,000 in compensation for pain and suffering.
The case hinges upon a number of things, including a 2003 legal
agreement between Germany's Foreign Ministry and embassies in the
country. The agreement obliges diplomats to pay their household
employees a minimum monthly salary of €750 in addition to providing
them with free room and board. What's more, the employees cannot be
forced to work longer than 40 hours per week, and they have to be paid
at least €4.50 for each hour of overtime.
Widespread Embassy Abuses?
During a hearing held two weeks ago, Judge Ulrich Kirsch didn't even
want to handle the complaint. Defense attorney von Berg pointed out
his client's immunity and advised the plaintiff's attorney to consider
submitting a claim for allegedly owed back-pay and damages to a Saudi
Arabian court. The judge swept the case from his docket in less than
an hour. He said he had no jurisdiction due to the diplomat's legal
immunity and declared the complaint as "inadmissible."
Bertelsmann had expected such a start. "The judge retreated into the
comfortable position," he says. In response, Bertelsmann, an expert in
employment law, has drafted an appeal with the help of a former
justice from Germany's Federal Constitutional Court, which he will
submit to the state labor court this week. If he has to, he plans to
pursue the matter to the highest court.
The fact that a case of modern slavery was brought before a court is
already extraordinary in its own right. No one checks to see if
members of the diplomatic corps obey the regulations regarding working
hours and wages that have been in force for the past eight years. It
would, after all, violate the principle of immunity.
Indeed, the Foreign Ministry is only forced to act once exploited and
mistreated domestic servants run away. Even then, though, discretion
is highly valued, with the ministry preferring amicable resolutions
with the embassy in question. A couple times a year, settlements in
similar cases are reached, usually involving a payment of a few
thousand euros to the household employee, who then must quickly leave
Germany. Staying, after all, is not an option: Their visas are
contingent upon their employment in diplomatic households.
Furthermore, the parties involved sign non-disclosure agreements.
As such, it is rare that such cases reach the public's attention. In
January 2008, the plight of an Indonesian servant working for the
cultural attaché at the Yemeni Embassy in Berlin came to light. For
two years, the woman was effectively imprisoned in the attaché's
apartment on Potsdamer Platz in Berlin. Her passport had been taken
away, and she claimed she was beaten regularly. She said that her
daily rations consisted of a slice of bread and a bowl of rice with a
tomato and two chilies. When the woman was admitted into a hospital in
May 2007, she weighed only 35 kilograms (77 pounds). She was diagnosed
with tuberculosis and it took her an entire year to recover.
Labor Violations Everywhere
Paradoxically, the serious illness was also her salvation. In addition
to being freed from her tormenter, she was allowed to remain in
Germany. Still, nothing happened to the Yemeni cultural attaché -- it
was left to the embassy to eventually pay her a total of €23,000 in
back wages.
Cases like this will be included in a study that the German Institute
for Human Rights is to present this week. The institute gathered
information about foreign employees working in diplomatic residences
in eight European countries. It found labor violations everywhere it
looked, including ones that involved servants forced to work up to 18
hours a day and receiving monthly wages as low as €100.
The organization found several human rights violations -- or over a
dozen per year -- in Great Britain. With somewhere between five and 10
cases per year, Germany stands in the middle of the pack. It also
found that there are currently roughly 3,000 women from Asia, Africa
and South America working in diplomatic residences in the countries
examined.
The study's authors provide a series of recommendations on how to
protect such employees, most of which would affect diplomatic immunity
laws currently in force. The proposals include checks on working
conditions, the possibility of changing jobs and "free access" to the
legal system.
Back Home
Despite the rarity of such cases, a controversial verdict in a similar
complaint was recently reached in France. On Feb. 11, the Conseil
d'Etat, the country's highest administrative court, awarded €33,380 in
unpaid salary to a woman from Oman who had worked in the residence of
a UNESCO diplomat. However, the justices decided that since the
diplomat in question enjoyed immunity, the French government would
have to pay the award.
The fight regarding outstanding salary payments to Devi Ratnasari, the
Indonesian domestic servant of the Saudi diplomat in Berlin, could
follow a similar path. Indeed, the judge at the Berlin Labor Court who
refused to hear Ratnasari's complaint nonetheless suggested the
possibility of suing the German state as the responsible party.
For her part, Ratnasari doesn't care who pays her what she's owed. Nor
is she interested in fact that her case might set a new legal
precedent. She has since returned to the Indonesian village where she
grew up.
Translated from the German by Josh Ward
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