CMNT_TITLE

Forced Labour Convention, 1930 (No. 29) - Mongolia (RATIFICATION: 2005)

Other comments on C029

Observation

Direct Request

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Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. The Committee previously noted that there were 29 cases of trafficking in persons in 2006–08. The Committee notes the Government’s indication in its report that as a result of the increase of trafficking in persons for sexual exploitation and forced labour, the Government has taken measures to improve legislation. The Committee notes in this regard that the Government passed the Law on Combating Human Trafficking in January 2012. The Government also states that a working group of the Ministry of Justice and Home Affairs is currently developing a draft Law on Protection of Witnesses and Victims, which is expected to be submitted for discussion in 2012. As regards judicial decisions regarding human trafficking, the Government indicates that over the last five years, in total 51 crimes with 71 accused and 119 victims were registered of which eight cases were referred to the court. In the beginning of 2011, three persons were accused of trafficking in persons and sentenced to between 10.5 and 11 years imprisonment.

However, the Committee notes the concluding observations of the Human Rights Committee of March 2011 (CCPR/C/MNG/CO/5, paragraph 21) which expressed concern about the enforcement of legislation against human trafficking, as well as the lack of witness and victim protection and adequate compensation and rehabilitation measures. The Human Rights Committee regretted that a high proportion of cases of trafficking are dismissed by the courts and that the majority of prosecuted cases apply sections of the Criminal Code relating to prostitution instead of applying section 113 of the Criminal Code punishing trafficking in persons resulting in lighter sanctions.

In these circumstances, the Committee requests the Government to pursue its efforts to combat trafficking in persons and step up its action to ensure that thorough investigations and robust prosecutions are carried out of persons who commit the offence of trafficking in persons. It therefore requests the Government to provide in its next report further information on the application of section 113 of the Criminal Code in practice, including the number of investigations, prosecutions and penalties imposed. In addition, the Committee requests the Government to provide a copy of the Law on Combating Human Trafficking (2012) and hopes that the draft Law on Protection of Witnesses and Victims will soon be adopted. In this regard, the Committee requests the Government to continue to provide information on measures taken to ensure that victims of trafficking are adequately protected and assisted.

Articles 1(1) and 2(1). 1 Freedom of government employees to leave their service. The Committee previously noted that under section 24, paragraph 1(3), of the Law on Government Service (1995), government employees may be relieved of their post if they submit a request to resign from the government service. While noting that the Law contains no provisions concerning the refusal of the resignation, the Committee requested the Government to indicate whether requests for resignation have been refused in practice and, if so, what were the grounds for refusal. The Committee takes note of the Government’s response that the abovementioned provision shall not be used as a justification to refuse a request for termination of employment and that there are no registered cases whereby requests from government employees to leave their service were denied.

2. Freedom of career members of the armed forces to leave their service. The Committee previously asked the Government to indicate the provisions applicable to military officers and other career members of the armed forces, as regards their right to leave the service at their own request. The Committee notes the Government’s indication in its report that the Law on Government Service (1995) has been amended in 2003 and 2008 and that section 8, paragraph 1(6) of this Law now states that inter alia, officers of the armed forces, border and internal troops, intelligence and police officers are included in the category of government special servants. The government states that as a result of the amendments, government special servants are included in the government service with the effect that section 24, paragraph 1(3) of the Law on Government Service referred to above is also applicable to career members of the armed forces. The Committee requests the Government to provide with its next report a copy of the Law on Government Service (1995) as amended in 2003 and 2008.

Article 2(2)(a). Use of services exacted under compulsory military service laws. The Committee previously noted the Government’s explanations concerning the use of internal troops under the Law on Internal Military, 1995. The Committee notes the Law on the Military duty of Mongolian citizen and the Status of Military Serviceman, 1992 which regulates the status of the active and reserve military service, and the Government’s indications as regards the benefits and privileges for serving in the army. In order to ensure that services exacted under compulsory military service provisions are only used for purely military ends, the Committee requests the Government to provide information on the nature of the work carried out by the active and reserve military service and to indicate the provisions of relevant laws and regulations governing the services and activities exacted of the active and reserve military service.

Article 2(2)(c). 1. Prison labour. The Committee earlier noted that, under the Law on Enforcement of Court Decisions (2002), prisoners may perform labour under the supervision of the inspector through establishing a labour contract with an entity, agency or individual. Under section 120 of the Law, prison labour is compulsory for convicts. The Committee also previously noted the Government’s indications that a woman’s prison had contracted with private companies for prison labour, causing conflicts in terms of companies hiring prisoners as a source of cheap labour, unequal working hours and the absence of regulations regarding occupational safety and health measures.

The Committee recalled that Article 2(2)(c) of the Convention expressly prohibits that convicted prisoners are hired to, or placed at, the disposal of private enterprises. However, work for private enterprises can be deemed compatible with Article 2(2)(c) if prisoners voluntarily enter into a normal employment relationship with private employers and perform work in conditions approximating a free employment relationship. This arrangement necessarily requires the formal and informed consent of the person concerned, as well as further guarantees and safeguards covering the essential elements of a labour relationship, such as wages, social security and occupational safety and health. If these conditions are complied with, the work of prisoners will be removed from the scope of Article 2(2)(c) of the Convention, since no compulsion is involved.

The Committee notes the Government’s indication that compulsory prison labour aims to educate and socialize prisoners, provide them with vocational and livelihood training, assist them in repaying their debts and accumulate certain savings. The Government furthermore states that of the 400 women who serve a prison sentence, over 70 women work at the sewing workshop at the prison producing garments and supplying them to companies. The Committee notes the Government’s indication that according to the Law on Enforcement of Court Decisions (2002) criminal offenders serving sentences in penitentiary institutions work under appropriate control on the basis of labour contracts with economic entities, organizations or individuals. The Government states that these compulsory labour relations are regulated according to the Law on Forced Labour as Administrative Sanction (2000).

The Committee notes that the Law on Forced Labour as Administrative Sanction (2000) regulates compulsory labour imposed on persons arrested under administrative procedures (section 1). Section 5 of the Law provides that: the Court shall issue the decision to impose forced labour taking into account the health and labour capacity of the person concerned; the duration of labour shall not exceed the duration of detention; the aimag (administrative subdivision) and capital city governors’ office shall provide workplaces for compulsory labour, the conditions of labour shall meet the occupational safety and health requirements in national laws and regulations; standards and rates for labour imposed shall apply the general standards and rates for such labour and expenses incurred in the arrest facility shall be deducted from prisoners’ wages.

The Committee requests the Government to provide a copy of the Law on Forced Labour as Administrative Sanction (2000). The Committee also requests the Government to provide copies of laws and regulations governing the conditions of compulsory labour, carried out by convicts under criminal procedures, in particular as regards occupational safety and health and wage levels. The Committee again requests the Government to provide a copy of the Law on Enforcement of Court Decisions (2002).

Referring to the above considerations concerning the prohibition contained in Article 2(2)(c) of the Convention, the Committee furthermore requests the Government to provide information on how it is ensured that the work of prisoners for private enterprises is only carried out with their formal, free and informed consent. The Committee also requests the Government to provide information on the work of prisoners for private companies, including copies of the labour contracts concluded with convicts, as well as contracts concluded between penitentiary institutions and private users of prison labour.

2. Compulsory labour imposed as an alternative to imprisonment. The Committee previously noted that, under section 50 of the Criminal Law, an obligation to perform labour may be imposed on a convicted person for 100–500 hours for the benefit of society, without deprivation of the person’s freedom and without remuneration. It may be replaced by confinement in prison, if the convicted person fails to fulfil his or her labour obligations. The Committee notes the Government’s indication that in the first five months of 2011, the capital city court sentenced 62 individuals to different kinds of penalties involving 18,480 hours of labour. In light of the considerations pertaining to Article 2(2)(c) as explained above and noting the absence of information in the Government’s report on this point, the Committee again requests the Government to indicate, in its next report, whether such labour can be performed for any private institutions, giving also examples of the types of work to be performed by convicted persons. The Committee also reiterates its request to communicate a copy of Decree No. 276 (2002) of the Minister of Justice and Home Affairs concerning this issue and Order No. 139 (2004) issued by the Chief of the General Police Department.

3. Compulsory labour for alcoholics and drug addicts. The Committee notes the Law on Forced Medical Treatment and Labour of Individuals Addicted to Alcohol and Narcotic Substances (2000) according to which compulsory labour may be imposed on a person by virtue of a court decision in order to pay for the medical treatment and service expenses incurred. The Committee notes that section 13 of the Law sets out the conditions governing compulsory labour relating inter alia to occupational safety and health, wages and salaries. The Committee requests the Government to indicate what types of work are performed by alcoholics and drug addicts sentenced to compulsory labour and whether such labour can be performed for private individuals, companies or associations.

Article 2(2)(d). Cases of emergency. The Committee previously noted the Government’s indications as regards limitations on citizens’ rights upon declaration of a state of emergency. The Committee notes the Law on State of Emergency (2000) provided by the Government, which stipulates the grounds and procedures of declaring a state of emergency (sections 4–7) and provides certain limitations on citizens’ rights in terms of termination of employment and transfer; working hours, days and shifts (section 16(2)). Section 16(2)(6) of the abovementioned Law provides for public labour mobilization if there is an emergency circumstance to redress the repercussions created due to the emergency condition. The Committee duly notes that section 17 of the Law specifies that the scope and limit to implement emergency measures should be compatible with the demand of the emergency circumstance created and the obligation of Mongolia under international treaties on human rights. The Committee furthermore notes the Government’s indications regarding state policies during emergency situations, which are aimed at eliminating its consequences and providing aid, assistance and medical care.