CMNT_TITLE

Article 2(2)(c) of the Convention. Prison labour. The Committee has noted that section 103 of the Code on the Execution of Penal Sentences provides that convicted persons are under an obligation to perform labour, such labour being exacted from them by the administration of penitentiary institutions at enterprises of such institutions, at state enterprises, or at enterprises of other forms of ownership. The Committee previously noted the provision of section 21 of Act No. 5473-I (of 21 July 1993) on the institutions and bodies for the execution of penal sentences involving deprivation of freedom, according to which compulsory labour may be exacted from convicted prisoners at enterprises of any organizational or legal form, even if such enterprises do not belong to the system of the execution of penal sentences and are located out of the place of penitentiary institutions, compulsory labour being exacted in this case on the basis of a contract concluded between the administration of penitentiary institutions and the enterprises concerned.

The Committee recalled in this connection that Article 2(2)(c) of the Convention exempts from its provisions “any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations”. While this Article strictly prohibits prisoners from being hired to or placed at the disposal of private undertakings, the Committee has pointed out in its previous General Surveys, as well as in its most recent General Survey of 2007 on the eradication of forced labour (paragraphs 59–60), that, provided convicted prisoners voluntarily consent to such work, without being subjected to pressure or menace, such work does not fall within the scope of the Convention. At the same time the Committee has indicated that, bearing in mind the captive circumstances of prisoners, there must be safeguards to ensure that their consent is given freely and voluntarily. The Committee, in paragraphs 114–122 of the 2007 General Survey referred to above, discussed the safeguards which include not only written formal consent, but further, that the most reliable indicator of voluntariness of the labour is if the work is performed under conditions which approximate a free labour relationship. Factors to be taken into account in such circumstances would include, for example, that there was a level of wages and social security provisions which approximated a free labour relationship. In addition, there may also be other factors that can be regarded as objective and measurable advantages which the prisoner gains from the actual performance of the work and which could be considered in determining whether consent was freely given and informed (such as the learning of new skills which could be deployed by prisoners when released; the offer of continuing work of the same type upon their release; or the opportunity to work cooperatively in a controlled environment enabling them to develop team skills).

As regards conditions of work of convicted prisoners, the Committee has noted that, under sections 103–105 of the Code on the Execution of Penal Sentences, their hours of work and rest periods, occupational safety and health, as well as remuneration (leaving room for deductions and attachments) are governed by the general labour legislation. It has also noted from the Government’s report that, under Decree No. 727 of the Government of the Russian Federation (of 15 October 2001), convicted prisoners performing compulsory remunerated labour are covered by compulsory state social security schemes, similarly to free workers.

While noting that, under the above provisions, prisoners’ conditions of work may be considered as approximating those of a free labour relationship, the Committee observes that, under the legislation in force, the formal consent of prisoners to work for private enterprises does not appear to be asked for. Noting also that, at present, the work of prisoners for private enterprises does not take place in practice, the Committee nevertheless expresses the hope that, in the light of the above considerations, the Government will take the necessary measures in order to ensure that, both in legislation and in practice, the work of prisoners for private enterprises will be carried out only with their voluntary consent, such consent being free from the menace of any penalty, including the loss of rights or privileges. The Committee requests the Government to provide, in its next report, information on the measures taken or envisaged in this regard.